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State v. Wetzel

11/27/1989

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). 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. We affirm.


I.


On November 25, 1986, at 1:17 a.m., 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 method on 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), 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.
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