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State v. Christie12/29/1988
ative Rules comprise a comprehensive scheme covering all aspects of blood and breath testing for evidential purposes. The specific Rules governing the use of breath testing instruments, we noted, begin with a mandate that " ll devices used to determine equivalent blood alcohol content from breath samples shall be approved by the director." Hawaii Administrative Rules § 11-111-2.1(a). The Rules go on to make approval contingent upon the instrument's capacity to meet performance standards prescribed by the department. Id. And they describe the methods to be followed in calibration and accuracy testing. See supra note 1. The vice of this aspect of the Rules, the defendant urges, is that it allows testing to be carried out in accord with methods recommended by the instrument's manufacturer.
We would be concerned if the Rules did not call for a thorough evaluation of an instrument's capacity to accurately measure blood alcohol concentration before approval. But section 11-111-2.1 in relevant part provides:
(c) The manufacturer or the agency requesting evaluation of a breath testing instrument for the purpose of approval shall provide the department with the following:
(1) Instrument;
(2) Related accessories;
(3) Chemical reagents;
(4) Detailed set of instructions pertaining to the operation, calibration, and maintenance of the instrument;
(5) Interpretation of results; and
(6) Any other material needed for the evaluation. Technical consultation, as necessary, shall also be provided to the department during the evaluation.
That the instrument and related accessories have been found accurate when used as intended by their designer and manufacturer is thus implicit in the department's approval. For section 11-111-2.1(d) provides " he department shall evaluate the instrument for compliance with subsection (a)[,]" which describes the stringent performance standards the instrument must meet.
Under these circumstances, we could not say the incorporation of the manufacturer's recommended method for testing accuracy in section 11-111-2.1(j)(3) of the Rules constitutes an impermissible subdelegation of rule-making authority. The section does not empower "private persons to decide what the law shall be," 1 Singer, supra ; it merely allows accuracy testing to be conducted in accord with the manufacturer's instructions which were submitted for examination and approval along with the instrument and accessories. Like the ICA, we find it logical to follow what the manufacturer has recommended in testing the accuracy of an Intoxilyzer. In our view it would be foolhardy not to follow the "instructions pertaining to the operation, calibration, and maintenance of the instrument" issued by the manufacturer of a sensitive device designed to measure blood alcohol concentration, especially after the responsible agency has evaluated the instrument and found it is capable of meeting the performance standards set for such instruments.
A review of the record, the relevant statutes, and the relevant rules revealing no error, the decision of the Intermediate Court of Appeals is affirmed.
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