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State v. Christie5/26/1988
In a driving under the influence of intoxicating liquor (DUI) case, the State of Hawaii (State) appeals the district court's order suppressing the results of the breath test administered to defendant Steven Richard Christie (Defendant). The basis of the suppression order was the court's holding that the accuracy verification test performed at the time Defendant was administered the breath test was not in strict compliance with the pertinent provisions of Chapter 111 of Title 11 of the Administrative Rules of the State Department of Health. We hold that based on the evidence in the record, the district court's construction of the Rules was incorrect. We therefore reverse.
I.
The following facts are not in dispute. On January 14, 1987, Defendant was arrested for DUI. At the police station Defendant consented to a breath test which was administered on a Model 4011AS intoxilyzer machine (Intoxilyzer). In administering the breath test, police matron Sylvia Dawson (Dawson), a certified Intoxilyzer operator, performed each procedure in the order listed on the "Honolulu Police Department Intoxilyzer Operational Checklist" (Checklist). The Checklist provided for the calibration of the Intoxilyzer by the use of a beam attenuator. The test record card removed from the Intoxilyzer (the last procedure on the
Checklist) showed 0.14 percent blood alcohol concentration. The card also indicated a calibration reading of 0.289 percent which was within +-- 0.01 percent of the beam attenuator value of 0.292 percent.
After holding an evidentiary suppression hearing, the district court entered its decision and order suppressing the Intoxilyzer test results. The State's appeal followed.
II.
Since 1983, DUI has been a per se offense under Hawaii Revised Statutes (HRS) § 291-4(a)(2) (1985) requiring the mere proof of 0.10 percent or more by weight of alcohol in the driver's blood. And the "implied consent" law, HRS §§ 286-151 to -160 (1985), compels a driver arrested for DUI to submit to a breath or blood intoxication test or lose his driving privilege for a specified period of time. Thus, it behooves the enforcement authorities to assure the accuracy of the intoxication tests being administered by them.
HRS § 321-161 (1985) places " he responsibility of maintaining 'scientific and technical control over chemical testing for blood alcohol'" on the Department of Health (Department). State v. Tengan, 67 Haw. 451, 457, 691 P.2d 365, 369 (1984). See also State v. Nakahara, 5 Haw. App. 575, 578, 704 P.2d 927, 929 (1985). In undertaking its responsibility the Department has adopted rules and amended them from time to time. These rules are now codified in Chapter 111 of Title 11 of the Administrative Rules.
With the foregoing in mind, we have stated 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 the Rules which have a direct bearing on the validity and accuracy of the test result." State v. Souza, 6 Haw. App. 554, 559, 732 P.2d 253, 257 (1987) (footnote omitted). See also State v. Rolison, 6 Haw. App. 569, 571, 733 P.2d 326, 327 (1987).
The question presented on appeal is whether the use of the beam attenuator in the accuracy verification test o
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