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State v. Nunokawa1/31/2003
SUMMARY DISPOSITION ORDER
By: Moon, C.J., Levinson, Nakayama, JJ., and Circuit Judge Masuoka, Assigned by Reason of Vacancy; Acoba, J., Dissenting
Defendant-appellant Jill L. Nunokawa appeals from the January 16, 2002 judgment of conviction and sentence of the District Court of the First Circuit, the Honorable George Y. Kimura presiding, adjudging her guilty of driving under the influence of intoxicating liquor, in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1993 & Supp. 1999). The defense alleges that the trial court erred in admitting the results of Nunokawa's blood alcohol content (BAC) test because: (1) the prosecution failed to establish that Emily Chang was authorized to withdraw Nunokawa's blood as required by Hawaii Administrative Rules § 11-114-23(a)(1) (1993); (2) Chang's testimony indicated that the BAC test performed on Nunokawa's blood exceeded the allowable deviation set forth in HAR § 11-114-22 (1993); (3) the City and County of Honolulu Health Department Laboratory failed to participate in the performance evaluation program set forth in HAR § 11-114-21 (1993) ; and (4) the Abott VPSS chemistry analyzer used to test Nunokawa's blood samples was not maintained in strict compliance with the manufacturer's recommendations.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced, the issues raised, and the controlling authority, we hold that: (1) defense counsel waived any challenge to Chang's qualifications to withdraw Nunokawa's blood when he explained to the court that his objection was based upon the maintenance of the VPSS chemistry analyzer and the integrity of the vials of anticoagulants used in the testing procedure, State v. Matias, 57 Haw. 96, 101, 550 P.2d 900, 904 (1976); (2) HAR § 11-114-22 governs approval by the State Department of Health of alcohol testing procedures and is not applicable to the testing of individual samples; (3) Chang testified that the BAC test was performed in accordance with HAR title 11 and the defense fails to provide any authority indicating that the prosecution is required to establish compliance with HAR § 11-114-21; and (4) the current version of HAR title 11 does not require compliance with manufacturer's recommendations. Therefore,
IT IS HEREBY ORDERED that the January 16, 2002 judgment of conviction and sentence from which this appeal is taken is affirmed.
DISSENTING OPINION OF ACOBA, J.
I would hold that pursuant to Hawaii Administrative Rules (HAR) § 11-114-23(a)(1), the prosecution must establish, prior to the introduction of a Blood Alcohol Content (BAC) test result, that the person withdrawing blood must be licensed according to Hawaii Revised Statutes (HRS) § 286-152 (1993 & Supp. 1999). Because Plaintiff-Appellee State of Hawaii (the prosecution) failed to establish this and the defense expressly questioned compliance with the rule at trial, this case should be remanded for a new trial. However, as to the other points on appeal, the majority has apparently agreed with and adopted the position set forth infra in Parts VI., VII., and VIII. of this opinion.
In addition, I believe that in the public interest, this case should be published inasmuch as it clarifies a rule of law and involves legal issues of public importance. See State v. Uyesugi, No. 23805, 2002 WL 31875587, at *31 (Hawaii Dec. 26, 2002) (Appendix A) (Acoba, J., dissenting, joined by Ramil, J.); Torres v. Torres, No. 23089, 2002 WL 31819669, at *36 (Hawaii Dec. 17, 2002) (Appendix A) (Acoba, J., dissenting, joined by Ramil, J.).
I.
Defendant-Appellant Jill L. Nunokawa
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