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State v. Hamasaki12/1/1989
of the vapors of the two reference samples, as required by § 11-111-2.1(k) of the Rules, the Intoxilyzer test result should not have been admitted into evidence. We disagree.
The Rules require calibration testing of a breath-testing instrument "not less frequently than every thirty days[.]" § 11-111-2.1(j)(2). Section 11-111-2.1(k) of the Rules provides:
The recommended calibration testing method shall use a minimum of two reference samples of known alcohol concentration at a known temperature within the range of one hundredths to thirty hundredths per cent weight per volume or higher known alcohol concentrations that are recommended by the breath testing instrument's manufacturer. The results of the analysis shall agree with the reference sample value within the limits of plus or minus one hundredths per cent weight per volume or such limits as set by the director. [Emphasis added.]
We concur with Defendant that § 11-111-2.1(k) of the Rules has a direct bearing on the accuracy of the Intoxilyzer test result. Thus, there must be strict compliance with its provisions. However, we do not agree with Defendant that § 11-111-2.1(k) requires that the vapors of the two alcohol reference samples be at a known temperature. That section clearly requires that the two reference samples used for calibration testing of the Intoxilyzer be at a known temperature.
Hong's testimony established that the two reference samples he used were at a known temperature of 34 degrees centigrade. Accordingly, there was strict compliance with § 11-111-2.1(k) of the Rules, and the trial court did not err in admitting the Intoxilyzer test result into evidence.
III.
HRS § 291-4(a)(2) provides that a person commits a DUI offense if he drives a vehicle "with 0.10 per cent or more, by weight of
alcohol in the person's blood." HRS § 291-5(a) (1985) states that 0.10 percent or more "by weight of alcohol in the defendant's blood within three hours after the time of the alleged violation . . . shall be competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged offense." The percentage of alcohol in a person's blood may be measured in terms of "percentage by volume" or "percentage by weight." 3 R. Erwin, Defense of Drunk Driving Cases § 26.06 (3d ed. 1989).
Defendant argues that the State failed to present any evidence that the Intoxilyzer test result of 0.173 percent was "in terms of weight or anything else." Consequently, he claims that this was a fatal flaw in the State's proof of the DUI offense under HRS § 291-4(a)(2), and therefore the trial court should have granted his motion for judgment of acquittal. We hold that the trial court did not err in ruling that "the reading in this case was by weight." Trial Transcript, Vol. 2 at 37.
Hong testified that if the Intoxilyzer operator follows step-by-step the instructions in the Honolulu Police Department Intoxilyzer Operational Checklist, the Intoxilyzer will produce " blood alcohol determination of the defendant." Id. at 13. The Intoxilyzer test result in evidence indicates the BAC by percentage. The supreme court has stated that the Intoxilyzer 4011 AS was "approved [by the State Director of Health] for use by the county police departments on December 16, 1980." State v. Christie, 70 Haw. 158, 163, 766 P.2d 1198, 1201 (1988), cert. denied, U.S. , 109 S. Ct. 2068, 104 L. Ed. 2d 633 (1989) (citing State v. Tengan, 67 Haw. 451, 461, 691 P.2d 365,
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