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State v. Gates6/26/1989
[7 HawApp Page 441] Defendant Richard Holland Gates (Defendant) appeals his jury conviction for driving under the influence of intoxicating liquor (DUI) in violation of Hawaii Revised Statutes (HRS) §§ 291-4(a)(1) and -4(a)(2) (1985). Defendant contends that the trial court erred in admitting into evidence the test result obtained from the use of an intoxilyzer model 4011AS (Intoxilyzer), a breath-testing instrument. He also contends that the trial court erred in denying his motion for judgment of acquittal made after the close of the State's case. We hold that these contentions are without merit, and affirm.
I.
After being arrested for DUI and transported to the police station, Defendant consented to take a breath test. Honolulu Police Department (HPD) police matron Sylvia Dawson (Dawson) administered the breath test on Defendant on Intoxilyzer No. 102376 at 12:15 a.m. on June 17, 1987. The test result indicated a blood alcohol concentration (BAC) of 0.126 percent.
During the trial, Dawson testified that (1) she was a certified Intoxilyzer operator; (2) she observed Defendant for twenty minutes to ensure that Defendant neither ingested nor regurgitated anything; (3) she meticulously followed the HPD Intoxilyzer Operational Checklist sequentially in administering the breath test; (4) the accuracy verification test of Intoxilyzer No. 102376 was done with a beam attenuator bearing an identical serial number; and (5) that Intoxilyzer No. 102376 operated properly, without an error light going on, with a BAC readout of 0.126 percent.
HPD criminalist Gilbert Chang (Chang) testified that he was a certified Intoxilyzer operator/supervisor. He further testified that on June 13, 1987, he tested Intoxilyzer No. 102376 for accuracy with two simulator solutions of 0.10 and 0.20 percent alcohol concentration, respectively, and also with the beam attenuator. He concluded that the instrument was accurate on that date.
HPD criminalist Milton Hong (Hong), also a certified Intoxilyzer operator/supervisor, testified that on June 17, 1987, the same day, but after Defendant was administered the breath test, he tested Intoxilyzer No. 102376 for accuracy with two simulator solutions of 0.05 and 0.30 percent alcohol concentration, respectively,
and with the beam attenuator. He found the instrument to be accurate. He stated that the Intoxilyzer has a margin of error of plus or minus 0.01 percent. He did not specify or explain, however, the reasons or bases for that margin of error.
On cross-examination, Hong explained that although the Intoxilyzer tests an individual's breath and not his blood, it converts an individual's breath alcohol concentration to a corresponding BAC by virtue of a conversion factor, a partition ratio. He stated that the Intoxilyzer utilizes a partition ratio of 2,100 parts of alcohol in the blood to one part of alcohol in the breath, i.e., 2,100 to 1. He further stated that due to physiological differences in individuals, " here may be differences in the partition ratio for a small exception of the population." July 21, 1988 Transcript B at 21. Hong further testified on cross-examination as follows:
A. Well, there are a few studies which have shown a range [in the partition ratio] of eleven hundred [to one] to three thousand [to one], but of course these studies have been shown to be grossly erroneous based on the other studies that have been produced over fifty years.
A. He [Mr. A.W. Jones] came up with a ratio or range of nineteen hundred [to one] to tw
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