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State v. Shivers12/17/1986
[6 HawApp Page 497] Defendant Samuel Robert Shivers (Defendant) appeals his conviction of driving under the influence of intoxicating liquor (DUI) on grounds that the circuit court erred in denying his motion to suppress the Intoxilyzer test result. He claims that since the operator of the Intoxilyzer was unqualified under Chapter 111 of Title 11 of the Hawaii Administrative Rules (Rules), the test result should have been suppressed. We disagree and affirm.
On September 10, 1985, Police Sergeant William K.C. Ching, Jr. (Ching) conducted the Intoxilyzer test on Defendant who had been arrested for a DUI offense. The test result indicated 0.15 per cent by weight of alcohol in Defendant's blood.
At the commencement of a bench trial in the circuit court, Defendant orally moved to suppress the Intoxilyzer test result, and acceding to Defendant's request the court consolidated the hearing on the motion and the trial on the merits. See State v. Doyle, 64 Haw. 229, 638 P.2d 332 (1981). Ching testified that in 1979 he completed a one-day training program in the operation of the Intoxilyzer at the Kauai Community College, although allowing for coffee breaks and a lunch break the actual training period totaled less than eight hours; he was thereafter certified as an operator; he operated the Intoxilyzer in 1979, 1980, and 1981; and he was "recertified" as an Intoxilyzer operator or had his "permit renewed" in June 1985. The circuit court denied Defendant's motion to suppress and found him guilty.
Sections 11-111-4 and 11-111-8 of the Rules provide in part as follows:
§ 11-111-4 Operator of breath testing instruments. An operator of breath testing instruments shall be responsible for the proper performance of analysis of breath samples, proper record keeping, and proper reporting of results.
(1) Any person employed by a county police department, may qualify as an operator by:
(A) Having successfully completed training as specified in this section approved by the department; or
(B) On the effective date of this chapter have not less than one (1) year's experience in the operation of the
approved breath testing instrument to be utilized; or
(C) Being able to exhibit through examination and demonstration or both to the department sufficient skill in the operation and interpretation of results of the approved testing instrument to be utilized.
(2) Training programs for an operator shall:
(B) Consist of a total of eight (8) hours of [certain] subjects[.]
§ 11-111-8 Permits.
(b) The chief of police of the respective county's shall issue the appropriate permits or renewals to persons who qualify under the applicable provisions of §§ 11-111-3 and 11-111-4 of this chapter.
(d) Permits shall automatically terminate two (2) years from the date issued unless terminated or revoked prior to such date. All renewal requests shall be submitted as required in § 11-111-8(a) and (b).
Relying on State v. Nakahara, 5 Haw. App. 575, 704 P.2d 927 (1985), Defendant contends that since Ching did not receive eight hours of training in 1979, his initial certification as an operator was invalid. In the alternative, Defendant asserts that, if he was validly issued a permit in 1979, it automatically terminated in 1981 under § 11-111-8(d) and the "renewal permit" issued in June 1985 was invalid. Based on our reading of the Rules, we hold that Ch
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