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State v. Tengan11/20/1984
[67 Haw Page 452] A State agency must follow the Administrative Procedure Act, Hawaii Revised Statutes (HRS) Chapter 91, when it acts in a rulemaking capacity. Town v. Land Use Commission, 55 Haw. 538, 545, 524 P.2d 84, 89, reh. denied, 55 Haw. 677 (1974). In these appeals, Defendants Wayne Taro Tengan and Glenn Ichiro Akita challenge the use of the Intoxilyzer 4011AS (the Intoxilyzer), a breath-testing device, to measure the concentration of alcohol in the blood of suspected drunken drivers on the ground that its use has not been authorized pursuant to a rule adopted in conformity with the Act. Tengan also questions the test results which were admitted as evidence in his case because "the breath test was not conducted by qualified personnel using the proper procedures specified under Hawaii law" and Akita also claims the Director of Transportation improperly delegated part of his authority to a federal agency. Finding no merit in the defendants' contentions, we affirm their convictions of violations of HRS § 291-4.
I.
The defendants were stopped by officers of the Honolulu Police Department on suspicion of driving while under the influence of intoxicating liquor in unrelated incidents in 1982 and 1983. Each was arrested and transported to the police station after a roadside sobriety test yielded further evidence of his drunkenness. Apprised that drunk driving suspects who refuse to submit to either a breath or blood test to determine the alcoholic content of their blood are liable to have their driving privileges revoked under the "implied consent" law, each chose to undergo a breath test.
The testing instrument used by the police to verify the concentration of alcohol in the blood of both was the Intoxilyzer. In each case the blood alcohol concentration registered .18% by weight of alcohol, substantially higher than the .10% which then served as presumptive evidence of intoxication under HRS § 291-5.
Prior to trial in the District Court of the First Circuit, Tengan moved to exclude "all evidence obtained by the State in connection with the blood alcohol content breath test," alleging the use of the Intoxilyzer as a breath-testing device had not been authorized by a properly adopted rule. He also urged the court to suppress the evidence on the ground that the pertinent test was conducted by an unqualified person. The district court, however, denied the motion and convicted Tengan of driving under the influence of intoxicating liquor. Akita likewise averred the use of the Intoxilyzer to procure proof of drunkenness in his case had not been approved by the Director of Transportation pursuant to a duly adopted rule and further claimed the director had improperly redelegated his duty in this regard to a federal agency. He sought a dismissal of the
charge rather than an order suppressing the evidence. But the district court also rejected his claims of infirmity relating to the approval of the testing device and adjudged him guilty of a violation of HRS § 291-4.
On appeal, the defendants essentially reiterate what was urged upon the district court. Our consideration of the issues posed for decision begins, as it must, with the relevant statutory scheme.
II.
The genesis of the State's efforts to deter drinkers from driving is traceable to a modest beginning in 1949 with the enactment of S.L.H. 1949, c. 2
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