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In meeting the foundational prerequisites for the admission of the Intoxilyzer test result, there must be a showing of strict compliance with those provisions of the Hawai'i Administrative Rules (HAR) governing the testing of blood, breath, and other bodily substances for alcohol concentration] which have a direct bearing on the validity and accuracy of the test result. This includes establishing that the calibration procedure used to test the accuracy of the Intoxilyzer strictly complied with the HAR because the calibration test has a direct bearing on the validity and accuracy of the test result obtained from that Intoxilyzer. Accordingly, in order to fulfill the foundational prerequisites of admissibility of the test result, the State is required to show that the Intoxilyzer calibration test, which has a direct bearing on the validity and accuracy of a breath test result, was in compliance with Haw. Admin. R. § 11-114-7 and was therefore in proper working order on the calibration testing dates.
The State of Hawai'i filed a complaint in the District Court of the First Circuit charging that Raymond Davis committed the offense of Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) and/or (a)(3) (Supp. 2011). The State’s first witness was Officer Russell Maeshiro, who testified that he stopped Davis’s car after observing Davis weaved in and out of marked lanes without using his blinkers or hand signals. Officer Maeshiro stated that he asked Davis to complete a field sobriety test after smelling the odor of an alcoholic beverage coming from the interior of Davis’s car. Officer Kimberly Ann Chaney testified that she transported Davis from the location of the stop to the police station. Officer Chaney related that she informed Davis of the implied consent law by reading him form HPD-396K. After Davis elected to take a breath test, Officer Chaney testified that she turned on the Intoxilyzer 8000, identified as serial number 80-003486 (Intoxilyzer), and that the machine proceeded to conduct and pass an internal self-check. The State showed to defense counsel two Intoxilyzer 8000 Accuracy Test Supervisor's Sworn Statements, which the State sought to admit as evidence. Davis objected to the Sworn Statements being entered into evidence based upon lack of foundation, hearsay, and hearsay within hearsay. According to Davis, the Sworn Statements did not substantively comply with the requirements of Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (1993 & Supp. 2002), which was the hearsay exception for records of regularly conducted activity (i.e., business records). Based on the evidence presented, the district court concluded that the State met the three foundational requirements to show that Davis’s breath test results could be relied on as a substantive evidence: (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered. The appellate court affirmed the decision.
Could the Sworn Statements be admissible as evidence under Hawaii Rules of Evidence (HRE) Rule 803(b)(6) (1993 & Supp. 2002)?
The Court held that the conclusion contained in the Sworn Statements could not be characterized as a matter observed under Haw. R. Evid. 803(b)(8)(B) because it was not a direct observation, a routine recordation, or recorded data reflecting observations that were concrete and simple, and thus admission of the supervisor’s sworn statements as public records was error. As the sworn statements were not admissible as public records, they were also not admissible as business records. The Court concluded that as the breath test result was wrongly admitted, the State failed to prove an essential element of the offense under Haw. Rev. Stat. § 291E-61(a)(3). Accordingly, the judgment was vacated, and the case was remanded for a new trial.