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State v. Boehmer6/27/1980
[1 HawApp Page 44] This is an appeal from the judgments entered in separate trials by the district court finding Defendants Ronald Boehmer and Sau Gogo guilty of driving under the
influence of intoxicating liquor in violation of HRS § 29-4. Since both cases involve the same question of law, they have been consolidated for argument on appeal.
In each case, the defendant was arrested for driving under the influence of intoxicating liquor and, after arrest, given a breathalyzer test.
As to Defendant Boehmer, the test reading showed 0.11% by weight of alcohol in his blood, and as to Defendant Gogo, 0.10% by weight of alcohol in his blood.
In the case of Boehmer, at the time of trial, Gilbert Chang, a criminalist with the Honolulu Police Department and a witness for the State, testified that the machine Boehmer was tested on had a margin of error of 0.0165%.
In the case of Gogo, both the prosecution and defense counsel stipulated at trial that there was a margin of error of 0.0165% in the breathalyzer test.
In Boehmer's case, the findings of the trial court were as follows:
In Gogo's case, the trial court stated as follows:
HRS § 291-5 provides as follows:
In any criminal prosecution for a violation of section 291-4, the amount of alcohol in the defendant's blood within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged violation and shall give rise to the following presumptions:
(3) If there was ten-hundredths per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor at the time of the alleged violation.
It is apparent that in each case the trial judge relied upon the breathalyzer test result not only as evidence of, but also as creating a presumption of, the defendant's state of intoxication.
The margin of error of the breathalyzer test means that on any given breathalyzer test a defendant's actual blood alcohol content could be 0.0165% more or less than the reading shown by the breathalyzer test.
Therefore, in the case of Defendant Boehmer, he could have had a blood alcohol content anywhere from 0.0935% to 0.1265%, and in the case of Defendant Gogo, anywhere from 0.0835% to 0.1165%.
The defendants claim that because of the inherent margin of error, the presumption provided in HRS § 291-5 should not have been applied.
The State, on the other hand, argues that so long as the instruments used to test for alcohol are in good and accurate condition and so long as they constitute an "approved analytical technique," the statute clearly provides that a reading indicating a certain percentage of blood alcohol is sufficient to establish a presumption, and that a court need not bother
itself with an inquiry as to margin of error in a futile effort to arrive at a "true" percentage.
We disagree.
Our supreme court has repeatedly emphasized that a criminal statute should be strictly construed. State v. Smith, 59 Haw. 456, 461, 583 P.2d 337 (1978); State v. Rackle, 55 Haw. 531, 534, 523 P.2d 299 (1974).
In
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