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State v. Anger9/30/2004
statute," which governed the administration of breath, blood, and urine tests of drivers suspected of driving under the influence of drugs or alcohol. HRS § 286-163 provided in relevant part:
(a) Nothing in [part VII] shall be construed to prevent the police from obtaining a sample of breath, blood, or urine as evidence of intoxication or influence of drugs from the driver of any vehicle involved in a collision resulting in injury to or the death of any person.
....
(c) In the event of a collision resulting in injury or death, and the police have probable cause to believe that a person involved in the incident has committed a violation of section ... 291-4 ..., the police shall request that a sample of blood or urine be recovered from the driver or any other person suspected of committing a violation of section ... 291-4[.]
(d) The police shall make the request under subsection (c) to the hospital or medical facility treating the person from whom the police request that the blood or urine be recovered....
(Emphases added.) The implied consent statute, including the mandatory testing provision, was recodified as HRS ch. 291E, part II, effective January 1, 2002, and amended in respects not pertinent to the present matter. See 2000 Haw. Sess. L. Act 189, § 23 and 28 at 407-30, 432; 2001 Haw. Sess. L. Act 157, §§ 11 and 12 at 382-84.
FN5. HRS § 286-151 provided in relevant part:
(a) Any person who operates a motor vehicle or moped on the public highways of the State shall be deemed to have given consent, subject to this part, to a test or tests approved by the director of health of the person's breath, blood, or urine for the purpose of determining alcohol concentration or drug content of the person's breath, blood, or urine, as applicable.
(b) The test or tests shall be administered at the request of a police officer having probable cause to believe the person driving or in actual physical control of a motor vehicle or moped upon the public highways is under the influence of intoxicating liquor or drugs, or is under the age of twenty-one and has a measurable amount of alcohol concentration, only after:
(1) A lawful arrest; and
(2) The person has been informed by a police officer of the sanctions under
part XIV and [HRS §§ ] 286-151.5 and 286-157.3.
HRS § 286-151 has been repealed and reenacted, in amended form, as HRS § 291E-11, see supra note 3.
The State of Hawai'i [hereinafter, "the prosecution"] counters, inter alia, (1) that the district court properly considered Officer Silva's testimony, inasmuch as hearsay evidence is admissible at pretrial hearings on motions to suppress, pursuant to Hawai'i Rules of Evidence (HRE) Rules 1101(d)(1) [FN6] **633 *426 and 104, [FN7] (2) that, even if the HRE governed hearings on motions to suppress, Officer Silva's testimony would be admissible under HRE Rule 803(b)(24), [FN8] and (3) that the district court could have concluded that Anger had been injured based solely on the severity of the traffic accident.
FN6. HRE Rule 1101 (1993) provides in relevant part:
(b) Proceedings. These rules apply generally to civil and criminal proceedings.
....
(d) Rules inapplicable. The rules (other than with respect to privileges) do not apply in the following:
(1) Preliminary questions of fact. The determination of questions of fact
preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.
(2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; preliminary hearings in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, an
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