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State v. Souza1/29/1987
[6 HawApp Page 554] This is an appeal by defendant John Frederick Souza (Souza) of his conviction for the offense of driving under the influence of intoxicating
liquor (DUI) in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985). The appeal requires our determination of the sufficiency of the foundation required in order to have the result of a breath testing instrument admitted into evidence. We hold that if the evidence indicates a lack of strict compliance with those provisions of the Department of Health regulations which have a direct impact on the validity and accuracy of the test result, the foundational requirements have not been met and the result is inadmissible. However, since our review of the record in this case discloses that the State met the foundational requirements, we affirm.
I.
On October 11, 1984, Souza was arrested for a DUI offense. At the police station Souza consented to a breath test. The test administered on an Intoxilyzer Model 4011AS (Intoxilyzer) resulted in a blood alcohol content reading of 0.13 percent.
At the bench trial, police matron Nellie Yaw testified that she was certified as an Intoxilyzer operator in December 1983, she conducted the breath test on Souza on October 11, 1984, and in conducting the test she followed a checklist based on the manufacturer's recommendation and the Department of Health regulation.
Criminalist Milton Chang (Chang) who was a certified Intoxilyzer operator-supervisor also testified. He stated that he tested the accuracy of the Intoxilyzer used on Souza on October 5, 1984 and October 12, 1984. The testing process described by Chang initially involved the preparation of a stock solution by Chang or another criminalist in the crime laboratory by diluting 77 milliliters of "absolute alcohol . . . in a 1,000 milliliters of water." February 24, 1986 Transcript at 10. Though apparently no record was made detailing the composition of the stock solution, Chang testified that this was the standard procedure even "prior to the use of the intoxilyzer." Id. Next, "in accordance with the recommendations of the manufacturer," Chang prepared two solutions by further diluting 10 milliliters and 20 milliliters of stock solutions separately "with water to 500 milliliters in a volumetric flask." Id. at 7, 9. According to Chang, the dilution of 10 and 20 milliliters of stock solution resulted in .10 percent and .20 percent simulator solutions, respectively. There was no independent analysis of the simulator solutions for their alcoholic content. The simulator solutions were then stored in sealed jars which include heating units that maintain a certain temperature "simulat the mouth temperature of an individual." Id. at 16. Apparently, the heating units are also equipped with thermometers.
Using the .10 percent and .20 percent simulator solutions, which according to Chang had not been used more than five times previously, Chang tested the Intoxilyzer on October 5, 1984, and found it "to be operating properly and accurately." February 11, 1986 Transcript at 47. A subsequent test on October 12, 1984 revealed the same result.
Based on the Intoxilyzer test result, the district court found Souza guilty of the DUI offense.
II.
" he basic proscription of drunk driving" and "'certain [evidentiary] presumptions [relating to a person's intoxicated state] based upon the amount of alcohol in a person's blood[,]'" have been a part of Hawaii statutes since 1949.
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