State v. Wetzel

• Decision Date: 27 November 1989
• Docket Number: No. 13339,13339
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Gary David WETZEL, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 891

782 P.2d 891

7 Haw.App. 532

STATE of Hawaii, Plaintiff-Appellee, v. Gary David WETZEL, Defendant-Appellant.

No. 13339.

Intermediate Court of Appeals of Hawai'i.

Nov. 27, 1989.

As Amended Dec. 11, 1989.

Syllabus by the Court

1. In laying the requisite foundation for the admission of blood test results into evidence in a driving under the influence of intoxicating liquor (DUI) case, the prosecution must show strict compliance with those provisions of the State Department of Health's Rules for the Testing of Blood, Breath or Other Bodily Substances for Alcohol Concentration (Rules) that have a direct bearing on the validity and accuracy of the test results.

2. The trial court's finding that the Department of Health approved the modified Shupe-Dubowski method of blood alcohol analysis as required by the Rules was not clearly erroneous.

3. Hawaii Revised Statutes (HRS) § 291-4(a) (1985) sets forth a single DUI offense with alternative methods of proof--by showing that the defendant drove a vehicle either "while under the influence of intoxicating liquor" (HRS § 291-4(a)(1)) or "with 0.10 per cent or more, by weight of alcohol in [his] blood" (HRS) § 291-4(a)(2).

4. Under HRS § 291-5(a) (1985), a defendant's blood alcohol concentration of 0.10 percent or more, within three hours after the time of the alleged DUI violation, shall constitute competent evidence that he was under the influence at the time of driving. Therefore, the prosecution need not produce extrapolative evidence relating the blood alcohol reading back to the time of driving.

5. At most, HRS § 291-5(a) provides for a permissible inference. It does not have an impermissible burden shifting effect and passes constitutional muster.

Steven T. Barta, (John Ashford Thompson, with him on the briefs; Law Offices of Steven T. Barta, of counsel; Law Offices of John Ashford Thompson, of counsel), Honolulu, for defendant-appellant.

Melinda Mendes, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

In a bench trial, defendant Gary David Wetzel (Defendant) was convicted of the offense of driving under the influence of intoxicating liquor (DUI) under Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). ¹ On appeal, he seeks reversal of his conviction arguing that (1) the blood test result was improperly admitted into evidence because the State of Hawaii (State) failed to show strict compliance with § 11-111-5(e) of the State Department of Health's Rules for the Testing of Blood, Breath and Other Bodily Substances for Alcohol Concentration (Rules), and (2) the State failed to present "substantial evidence" that Defendant had operated a vehicle with a blood alcohol concentration (BAC) of at least 0.10 percent because Defendant's blood samples were drawn one hour and thirteen minutes after he had been initially stopped for speeding. ² We affirm.

I.

On November 25, 1986, at 1:17 a.m., ³ Defendant was stopped by police officers for speeding. At 1:30 a.m., Defendant was arrested for DUI and transported to the Honolulu police station, where he consented to take a blood test. He was administered a blood test at the Pawaa Annex of the City and County of Honolulu (City) Department of Health.

At trial, City medical technologist Betty Shouse (Shouse) testified that she drew blood samples from Defendant's arm at 2:30 a.m. Later that morning, she analyzed the blood samples for alcohol content.

Shouse used the "direct distillation method" to determine Defendant's BAC. She testified that the type of direct distillation method utilized was a modification of the Shupe-Dubowski method. The test result, showing a BAC of 0.18 percent, was admitted into evidence over Defendant's objection.

Defendant's sole witness was Dr. Ronald Kienitz (Dr. Kienitz), an osteopathic physician. The court qualified him as an expert with respect to "the reliability of the Shupe-Dubowski method and ... the direct distillate [sic] method on [sic] blood alcohol analysis." July 21, 1988 Transcript at 68. In essence, Dr. Kienitz testified that the modified Shupe-Dubowski method used by Shouse was inaccurate and thus the results were highly suspect. Dr. Kienitz also testified on direct examination as follows:

Q Now, assuming one had, and it's a reliable figure for the moment, .18 alcohol content in the blood an hour and thirteen minutes after the time of driving, does that give you--does that tell you how much alcohol was in the blood or in any organ or in any part of the body an hour and thirteen minutes earlier?

A No, it doesn't. It could be zero. It could be higher. It could be lower. It could be anywhere.

Id. at 104.

The trial court found Defendant guilty of DUI under HRS § 291-4(a)(2), ⁴ and Defendant timely appealed.

II.

In laying the requisite foundation for the admission of blood test results into evidence, the State must show strict compliance with those provisions of the Rules that have a direct bearing on the validity and accuracy of the test results. State v. DeMille, 7 Haw.App. 323, 763 P.2d 5 (1988). Regarding the analysis of blood samples for BAC, § 11-111-5(e) of the Rules provides:

(e) The analysis shall be performed according to the instructions of the author or manufacturer. Any modification of the instructions shall be approved by the director [of the State Department of Health]. The instruction shall be on file in the area the analysis is performed.

The Rules provide in § 11-111-5(h), in relevant part, as follows:

Currently approved methods of blood alcohol analysis are:

(1) Direct distillation method;

(2) Gas Chromatograph;

(3) Enzymatic Method;

(4) Diffusion Method (microdiffusion and oxidation).

Defendant contends that the method of blood alcohol analysis used has a direct bearing on the validity and accuracy of the test result. Therefore, he argues that the State must show that the modified Shupe-Dubowski method had been approved as required by § 11-111-5(e) of the Rules. The trial court found that "the analytical technique used has been approved and properly approved." August 25, 1988 Transcript at 49. We hold that the record supports the trial court's finding.

On redirect examination, Shouse testified as follows:

Q And as far as you know that method [modified Shupe-Dubowski method] has been approved?

A Yes, sir.

July 21, 1988 Transcript at 24-25. Shouse's knowledge was based on a letter from the State Department of Health shown to her by her superior. Moreover, Shouse testified that she has been using the modified Shupe-Dubowski method, a type of direct distillation method, since 1984. Under the Rules, which have been effective as of November 22, 1986, the direct distillation method is a currently approved method of blood alcohol analysis.

Consequently, the trial court's finding that the Department of Health approved the modified Shupe-Dubowski method was not clearly erroneous. Therefore, the court properly admitted the blood test result into evidence. Regarding Dr. Kienitz's evaluation of the modified Shupe-Dubowski method, his testimony went to the weight of the evidence. See State v. Gates, 7 Haw.App. 440, ----, 777 P.2d 717, 721 (1989) (testimony regarding the 2,100 to 1 partition ratio that the Intoxilyzer uses to calculate a defendant's BAC "goes to the weight the jury should accord the Intoxilyzer test result with respect to its accuracy"). The record indicates that the trial court did not find Dr. Kienitz's testimony persuasive. ⁵

III.

Defendant claims that the State failed to prove that his BAC was 0.10 percent or more at the time he was operating his vehicle. Shouse drew Defendant's blood at 2:30 a.m. Defendant argues that his BAC at 1:17 a.m., the time he was stopped by the police officers, could have been below 0.10 percent as Dr. Kienitz testified. Therefore, Defendant concludes that his test result merely establishes his BAC as of 2:30 a.m. We hold that by virtue of HRS § 291-5(a) (1985), ⁶ there was no failure of proof by the State regarding Defendant's BAC at the time he was stopped.

A.

"[A] motorist's ability to drive safely is adversely affected by a blood-alcohol content of .10%, even though some individuals may exhibit few outwardly visible symptoms of intoxication at that level. Consequently, many states have legislated directly against driving with a blood-alcohol content of .10%[.]" State v. Knoll, 110 Idaho 678, 680-81, 718 P.2d 589, 591-92 (App.1986) (citations omitted). The blood or breath of a motorist cannot be tested while he is driving. Thus, his BAC must necessarily be determined at a time subsequent to his being stopped and arrested for DUI. The issue then is how to extrapolate the test result, indicating a BAC of 0.10 percent or more, to the BAC of the motorist at the time he was stopped.

This issue is one of first impression in Hawaii. However, other jurisdictions have considered and resolved this issue with a wide spectrum of results. At one end of the spectrum, the Vermont Supreme Court has held that the prosecution must establish that the 0.10 percent level existed at the time of driving. Thus, in Vermont, the prosecution is required to present probative evidence to relate a defendant's blood alcohol reading back to the time of driving. State v. Rollins, 141 Vt. 105, 444 A.2d 884 (1982).

At the other end of the spectrum, the New Jersey Supreme Court has determined that "the statute prescribes an offense that is demonstrated solely by a reliable breathalyzer test administered within a reasonable period of time after the defendant is stopped for drunk driving, which test results in the proscribed blood-alcohol level." State v. Tischio, 107 N.J. 504, 522, 527 A.2d 388, 397 (1987), appeal dismissed, 484 U.S. 1038, 108 S.Ct. 768, 98 L.Ed.2d 855 (1988). The court concluded that a prosecution of the offense "neither requires nor allows extrapolation evidence to demonstrate the defendant's blood-alcohol level while actually driving." Id....