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State v. Hamasaki12/1/1989
Defendant-appellant Edward T. Hamasaki (Defendant) challenges his driving under the influence of intoxicating liquor (DUI) conviction pursuant to Hawaii Revised Statutes (HRS) § 291-4(a)(1) (1985) (driving while under the influence) and HRS § 291-4(a)(2) (1985) (driving with a blood alcohol level of 0.10 percent or more). Defendant contends that the trial court erred (1) in admitting into evidence the test result obtained from a breath-testing instrument, an intoxilyzer model 4011AS (Intoxilyzer), because the State of Hawaii (State) failed to show strict compliance with the State Department of Health's Rules for the Testing of Blood, Breath and Other Bodily Substances for Alcohol Concentration (Rules), and (2) in denying his motion for judgment of acquittal based on the State's failure to prove a certain element of the offense. We affirm the conviction.
I.
On April 24, 1987, Defendant was arrested for DUI. At the Honolulu Police Station, he consented to take a breath test. The Intoxilyzer test result indicated a blood alcohol concentration (BAC) of 0.173 percent.
At the bench trial, Honolulu Police Department criminalist Milton Hong (Hong), a certified Intoxilyzer operator-supervisor, testified that he conducted calibration testing of the Intoxilyzer on April 22, 1987, and May 7, 1987. Hong stated that, on both dates, he used two reference samples of 0.05 percent and 0.30 percent
alcohol concentrations, respectively, to test the Intoxilyzer. He further testified that these samples were of a known temperature of 34 degrees centigrade, "as required in the testing procedure." Trial Transcript, Vol. 2 at 11. On cross-examination, Hong testified as follows:
Q Now, in the preparation of this reference sample, what happens is that there will be a vapor formed above the solution between the liquid portion and the cover; is that correct?
A That is correct.
Q Of the simulator device?
A That is correct.
Q All right. What is the temperature of that vapor?
A I wouldn't know. I've never taken that temperature.
Q Well, Mr. Hong, that vapor is what is pumped into the sample chamber of the Intoxilyzer, is that correct, to make the analysis as to the accuracy of the simulator?
A Yes, sir.
Id. at 19-20.
Defendant objected to the admission of the Intoxilyzer test result on the foundational ground that Hong failed to determine the temperature of the vapors of the reference samples. The trial court admitted the test result into evidence over Defendant's objection.
After both parties had rested, Defendant moved for a judgment of acquittal on the DUI offense under HRS § 291-4(a)(2). He argued that the State had failed to prove that his BAC, by weight of alcohol, was 0.173 percent. The court denied the motion and found Defendant guilty of DUI.
II.
In State v. Souza, 6 Haw. App. 554, 559, 732 P.2d 253, 257 (1987), we held that:
n 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 Rules which have a direct bearing on the validity and accuracy of the test result. [Footnote omitted.]
Relying on Souza, Defendant asserts that because the State failed to produce any evidence with respect to the "known temperature"
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