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State v. Young7/26/1990
[8 HawApp Page 147] Defendant-Appellant Jeffrey A. Young (Defendant) was convicted by a jury of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985) (driving with a blood alcohol level of .10 percent or more). On appeal, Defendant contends that the trial court reversibly erred in (I) admitting the breath test result from an intoxilyzer model 4011 AS (Intoxilyzer) into evidence; (II) its rulings regarding the testimony of the State of Hawaii's (State) witness, Honolulu Police Department (HPD) criminalist Claire Chun (Chun); (III) refusing to give certain jury instructions and giving certain instructions over Defendant's objection; and (IV) denying
Defendant's motion to dismiss with prejudice Count I (violation of HRS § 291-4(a)(1)) of the complaint on the ground of double jeopardy. We affirm.
FACTS
On June 4, 1988, Defendant was arrested for DUI. He consented to take a breath test. HPD Officer William Wardle (Wardle), a certified Intoxilyzer operator, administered the breath test to Defendant. At trial, Wardle testified that (1) he observed Defendant for fifteen minutes prior to administering the breath test to ensure that Defendant did not eat, drink, smoke, or regurgitate anything; (2) he carefully and sequentially followed the seventeen-step Intoxilyzer Operational Checklist in administering the breath test; (3) the calibration verification test of Intoxilyzer No. 103292 was done with a beam attenuator bearing an identical serial number; and (4) Intoxilyzer No. 103292 was working properly because the alphanumerics of the test results were printed out in proper order on the printout card and no error light appeared.
The trial court qualified Chun as "a qualified and certified operator supervisor of the intoxilyzer machines and as an expert criminalist regarding the intoxilyzer instrument who is competent to testify about the accuracy and reliability of the Honolulu Police Department's intoxilyzer instruments." May 23, 1989 Transcript at 107. Chun testified that on June 2 and 14, 1988, she tested Intoxilyzer No. 103292 for accuracy with two simulator solutions of .05 and .30 percent alcohol concentration, respectively. The temperature of the solutions was 34 degrees centigrade. On both dates, Chun also used the Intoxilyzer's beam attenuator to check it for accuracy. Chun concluded that based on these tests, Intoxilyzer No. 103292 was working properly and accurately on June 4, 1988. She further testified that the Intoxilyzer has a margin of error of +--.01 percent.
On cross-examination, Defendant questioned Chun in depth about the Intoxilyzer's use of a 2,100 to 1 breath to blood partition coefficient or ratio to calculate a person's blood alcohol concentration (BAC). Questions regarding the beam attenuator were also directed at Chun.
Over Defendant's objection, the court admitted into evidence the breath test result showing a BAC of .204 percent.
The jury found Defendant guilty of Count II (driving with a BAC of .10 or more), but was unable to reach a verdict on Count I (driving under the influence). Over Defendant's objection, the court declared a mistrial as to Count I.
Discussion
I.
Defendant first contends that the trial court erred in admitting the Intoxilyzer test result into evidence. He argues as follows: (1) in laying a proper foundation for the admission of the Intoxilyzer test result into evidence, the State must show strict compliance w
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