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State v. Lewis4/10/1987
[6 HawApp Page 624] Defendant Richard Duval Lewis (Defendant) appeals his conviction of driving under the influence of intoxicating liquor in violation of Hawaii Revised Statutes (HRS) § 291-4(a)(2)(1985). Defendant claims
that since the State failed to show that the breath testing machine (Intoxilyzer) was working properly, the trial court erred in admitting his breath test result into evidence. The State, on the other hand, contends that because a qualified operator tested the Intoxilyzer for accuracy with a "beam attenuator" at the time Defendant's breath was tested, the fondational requirement was met. We hold that the record of the case is inadequate to support the State's contention. We therefore vacate the judgment of conviction and remand the case for a new trial.
I.
After being arrested for DUI, Defendant consented to a breath test at the police station. Police officer Byron Ono (Ono), a certified operator, administered the breath test on Defendant on the Intoxilyzer. The test result indicated 0.13 percent by weight of alcohol in Defendant's blood.
At the bench trial, Ono testified that in administering the test, he followed each step on the Honolulu Police Department Intoxilyzer Operational Checklist (Checklist). The Checklist includes three phases in sequence: (1) preparation, (2) testing of the subject, and (3) calibration. Ono testified that a beam attenuator was used to verify "the [Intoxilyzer] readings to be true and correct." May 16, 1986 Transcript at 39. According to Ono, he inserted the beam attenuator having a known value of ".20" into the Intoxilyzer. Id. at 31. When the Intoxilyzer tested the beam attenuator, the value obtained was 0.20 percent. "This indicated to that the machine was calibrated." Id. at 38.
No witness, other than Ono, testified regarding the Intoxilyzer or the beam attenuator. No criminalist testified that the Intoxilyzer was tested for accuracy with simulator solutions containing known alcohol concentrations before and after the date of Defendant's breath test. See
State v. Rolison,6 Haw. App. 569, 733 P.2d 326 (1987); State v. Souza,6 Haw. App. 554, 732 P.2d 253 (1987). The Intoxilyzer test result was admitted into evidence over Defendant's objection. Based on the test result of 0.13 percent, the trial court found Defendant guilty as charged.
II.
State v. Rolison, supra, and State v. Souza, supra, clearly indicate that to meet the foundational requirements for the admission of the Intoxilyzer test result into evidence, there must be a showing of strict compliance with § 11-111-2(b)(3) of Chapter 111 of Title 11 of the State's Administrative Rules (Rules). That section provides:
Testing for accuracy shall be done no less frequently than every thirty (30) days and after every maintenance and repair using a minimum of two (2) reference samples of known alcohol concentrations at a known temperature within the range of one hundredths to thirty hundredths percent weight per volume (0.01% to 0.30% W/V) or higher known alcohol concentrations that are recommended by the breath testing instrument's manufacturer. The results of such analysis must agree with the reference sample value within the limits of plus or minus one hundredths percent weight per volume (+-- 0.01% W/V) or such limits set by the director.
Defendant contends that there was no showing of strict compliance with § 11-111-2(b)(3). The State argues, however,
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