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State v. Takahashi4/9/1990
s as follows:
(b) The subject shall be continuously observed for not less than fifteen minutes prior to the collection of the breath sample,
during which period the subject shall not have ingested alcoholic beverages, vomited, eaten or smoked.
This section of the Rules has a direct bearing on the validity and accuracy of the test result and must be strictly complied with. See State v. Kirn, 70 Haw. 206, 767 P.2d 1238 (1989).
Defendant relies on Hong's testimony that when a second breath test is administered after the first, there should be a new fifteen-minute observation period before the second test is administered. Noting that there was only a ten-minute observation period before the second test was administered in this case, Defendant claims a lack of strict compliance with § 11-111-2.1(b) of the Rules. We disagree.
Section 11-111-2.1(b) does not explicitly cover the situation where there is repeated breath testing. The section requires that a person not ingest anything, vomit, or smoke during a continuous fifteen-minute period immediately prior to his being tested. The purpose of the section is to obtain an accurate BAC reading without foreign substances skewing the result.
Here, the record indicates that Officer Becker continuously observed Defendant for a period of twenty-five minutes (12:35 a.m. to 1:00 a.m.) before administering the second test. During the twenty-five-minute period, Defendant did not ingest or regurgitate anything. Therefore, there was strict compliance with § 11-111-2.1(b) of the Rules. In fact, based on Hong's testimony, if Officer Becker had observed Defendant for an additional five-minute period, the BAC of the second test would have been no less than and may have been higher than 0.121 percent.
Accordingly, the trial court did not err in admitting the second Intoxilyzer test result into evidence.
Affirmed.
Disposition
Affirmed.
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