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State v. Lowther8/7/1987
Defendant Timothy E. Lowther (Defendant) appeals his conviction for driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS)§ 291-4(a) (1) (1985). The appeal raises the following question: Whether the approval of the intoxilyzer model 4011AS breath testing machine (Intoxilyzer) by the Director of the State Department of Health (Director) bars a DUI defendant from attacking the general reliability of the Intoxilyzer by expert testimony. Our answer is no. We therefore vacate the judgment of conviction and remand the case for retrial.
I.
On July 15, 1985, Defendant was arrested for DUI and submitted to an Intoxilyzer breath test. The test result showed 0.11 percent by weight of alcohol in Defendant's blood. During the jury
trial the test result was admitted into evidence without objection by Defendant. As the State's expert witness, police criminalist Milton Chang, a certified Intoxilyzer operator/supervisor, testified that, in his opinion, the Intoxilyzer "is a reliable instrument." 12/11/85 Tr. Vol. III at 61.
After the State rested, the trial court ruled on the pending "State's Motion in Limine to Exclude the Testimony of Dr. Frajola." The court determined that Dr. Walter J. Frajola would not be permitted to testify regarding the reliability of the Intoxilyzer but would be allowed to testify only as to "how the [breath] test was conducted" on Defendant and "as to the effects of alcohol on the human body." 12/16/85 Tr. at 16.
During the direct examination of Dr. Frajola, despite its earlier ruling on the State's motion in limine, the trial court asked Dr. Frajola for his opinion regarding the general reliability of the Intoxilyzer. Dr. Frajola responded as follows:
It doesn't accurately measure the amount of alcohol in a person's blood. It can make an accurate measurement of a breath analysis, but the conversion from a breath result to a blood alcohol concentration is in tremendous error.
t is an inaccurate measurement, when you refer it to a blood alcohol concentration in a specific individual.
12/17/85 Tr. at 153.
Upon the State's objection, the court excused the jurors and Dr.
Frajola from the courtroom and heard the arguments of the parties. After the jurors returned to the courtroom, the court struck its last question and Dr. Frajola's answer and stated to the jury:
Furthermore, the Court would like to instruct the jury that the question of the reliability of the Intoxilyzer has already been determined in this state by our State Supreme Court and has been laid to rest. It is reliable and, therefore, the last question and answer is to be completely disregarded by the jury.
Id. at 163.
The matter, however, was not laid to rest. During its deliberations, the jury made the following request and inquiry:
2. May we have the decision of the Supreme Court ruling pertaining to the use of the Intoxilyzer.
3. Can the jury overule a decision of the Supreme Court?
Record at 237. The trial court refused the jury's request and admonished the jurors that "they are not to question the law in the case as stated by the Court[.]" 12/19-20/87 Tr. at 6.
The jury found Defendant guilty as charged, and this appeal followed.
II.
The due process guarantee of a fair trial under the constitutions of both the United States and Hawaii requires that "criminal defendan
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