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State v. Nunokawa1/31/2003
ite to any case law for this proposition. Chang's undisputed testimony indicated that the requirements of HAR Title 11 were met. Therefore, on this ground, the court did not err in admitting the BAC test.
VIII.
Defendant asserts that maintenance of the VPSS machine was not conducted on a month-to-month basis in strict compliance with Title 11. It is necessary to establish that the VPSS machine was "in proper working order[,]" Souza, 5 Haw. App. at 558, 732 P.2d at 257, in order to lay a proper foundation for admittance of the BAC results. As such, regular maintenance is relevant in any inquiry as to the reliability of the VPSS machine.
Nevertheless, the maintenance standards required by Title 11, and the maintenance requirements suggested by the manufacturer of the VPSS machine, are not the same. While Chang testified that the machine was not maintained every month as the specifications recommend, but instead on an "as needed basis[,]" there is no evidence that this practice violated Title 11 standards. The previous HAR title 11, chapter 111 included a section regarding blood testing equipment that stated that " anufacturer's instructions for instrument calibration, maintenance, and repair shall be followed." HAR § 11-111-5(j)(4) (1986). However, the 1993 version of HAR title 11, chapter 114 apparently omitted this section. There is no comparable section with references to "manufacturer's instructions" pertaining to testing procedures. Accordingly, Chang was under no obligation under HAR title 11, chapter 114 to incorporate manufacturer recommendations into her laboratory methodology.
As noted above, however, periodic maintenance may be germane to the reliability of a particular machine. Here, Chang testified that maintenance was conducted just three days prior to the date that Defendant's samples were run. According to Chang, the VPSS was calibrated prior to running Defendant's samples, indicating that the machine was operating accurately. Therefore, there was evidence that the VPSS machine was reliable.
IX.
For the foregoing reasons, the court's January 16, 2002 judgment and sentence as to the DUI offense should be vacated and the case remanded to the court for a retrial.
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