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State v. Rolison2/12/1987
[6 HawApp Page 569] Defendant Robin Lynne Rolison (Defendant) was convicted of driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes § 291-4(a)(1) and (2) (1985). She appeals, challenging the admissibility of the breath test result on which her conviction was based. We vacate the judgment of conviction and remand for retrial.
I.
On November 16, 1985, after her involvement in a two-car accident, Defendant was arrested for DUI. After being transported to the police station, Defendant consented to and took a breath test on an Intoxilyzer 4011AS (Intoxilyzer). The result indicated 0.16 percent by weight of alcohol in her blood.
At the bench trial, Officer Charles Simmons (Simmons) testified that he was "certified" as an Intoxilyzer operator and conducted the breath test on Defendant. In administering the test, Simmons followed step-by-step the procedures specified in the "Honolulu Police Department Intoxilyzer Operational Checklist" (Checklist). Upon completion of each specific step, he placed his initials in a space provided for the procedure. The last step was the removal of the test record card from the Intoxilyzer which showed a reading of 0.16 percent.
Simmons further testified as follows:
Q And in your training and experience if the Intoxilyzer was not working properly would you know?
A We would get an error light on the machine.
Q And would the machine print?
A The machine would not print on the card.
Q Any of these things happen while testing the Defendant?
A No, it didn't.
Q Did the machine appear to be working properly?
A Yes.
Q How do you know that?
A Everything worked properly and it printed on the card.
Trial Transcript at 28-29.
No witness, other than Simmons, testified regarding the Intoxilyzer. Over Defendant's objection on foundational grounds, the district court admitted the test result into evidence and found Defendant guilty.
II.
In the recent case of State v. Souza,6 Haw. App. 554, 732 P.2d 253 (1987), we held that to have the test result of an Intoxilyzer admitted into evidence a proper foundation must be laid "showing that (1) the Intoxilyzer was in proper working order; (2) its operator was qualified; and (3) the test was properly administered." Id. at , 732 P.2d at 257. We further held that "in meeting the foundational prerequisites for the admission of the Intoxilyzer test result there must be a showing of strict compliance with those provisions of [Chapter 111 of Title 11 of the Hawaii Administrative Rules] which have a direct bearing on the validity and accuracy of the test result." Id. (footnote omitted).
Here, there was no showing by the State of strict compliance with § 11-111-2(b)(3) of Chapter 111 of Title 11 of the Hawaii Administrative Rules (Rules) dealing with testing of breath testing instruments for accuracy. Consequently, based on the Souza standard, the Intoxilyzer test result was inadmissible.
Nonetheless, the State presents novel contentions that the test result was admissible because (1) Simmons had meticulously followed the Checklist and (2) the Intoxilyzer is "fail-safe." We will analyze these contentions.
A.
Citing Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978), the State argues that the Checklist "
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