DISSENTING OPINION OF
LEWIS, J.Finding ground for reversal in the disposition of the case at the close of the evidence, I respectfully dissent. The following transpired in the district court:
THE COURT: Section 291-5, Hawaii Revised Statutes, as amended, Section 3 says: “If there was ten-hundredths per cent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence.” There has been nothing substantial to rebut that presumption.
MR. CHOY: Well, Your Honor, —
THE COURT: I’ve asked you if there’s anything *167more. Now, I’m giving you a decision.
I have to follow the statute — “It shall”, not “may”. I have no discretion. If there was ten-hundredths per cent, it shall be presumed the person was under the influence. As far as rebutting the presumption —
MR. CHOY: I think it’s been rebutted, Your Honor.
THE COURT: I disagree with you. You’ve made your argument. I find the defendant guilty as charged.
Despite the statutory presumption to which the court referred, “the burden is always upon the prosecution to establish every element of crime by proof beyond a reasonable doubt. ” State v. Cuevas, 53 Haw. 110, 113, 488 P.2d 322, 324 (1971). If there was a reasonable doubt as to the probative value of the breathalyzer test, the prosecution had the burden of dispelling the doubt, State v. Baker, 56 Wash. 2d 846, 856, 355 P.2d 806, 811 (1960); People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (1958); State v. Spry, _ S.D. _, 207 N.W.2d 504, 510 (1973); cf., State v. La Fountain, 108 N.H. 219, 231 A.2d 635 (1967).
Of course, the probative value of the test in the present case depended upon what it showed as to defendant’s condition at the time of the alleged violation. State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165 (1967); State v. Shadding, 17 N.C. App. 279, 194 S.E.2d 55 (1973). There was testimony that defendant had been drinking both before and after that time. From the colloquy set out above, it appears that the court decided, without evidence on the point, that the drink taken by defendant after he ceased driving, which he testified was a slug of whisky taken to wash down a Valium pill1 approximately an hour and a half before the test, could not have substantially affected the probative value of the test in view of defendant’s consumption of liquor before he drove, which he testified consisted of three or four manhattans imbibed over a two-hour period commencing four and a half hours before the test. Thus, what the court did was to dispense with the *168necessity of further evidence when the prosecution’s burden of proof required it.2 _
When the record shows the grounds of decision, the case must be reviewed accordingly. State v. Matsuda, 50 Haw. 128, 432 P.2d 888 (1967); State v. Ruiz, 49 Haw. 504, 421 P.2d 305 (1966); Wilson v. United States, 250 F.2d 312 (9th Cir. 1958); Government of the Virgin Islands v. Smith, 278 F.2d 169, 173 (3d Cir. 1960); see also Howard v. United States, 423 F.2d 1102, 1104 (9th Cir. 1970). While the court might have made a general finding of guilt under D.C.R.P.P. Rule 33, or might have found that the testimony of the defendant as to the drink taken after he ceased driving was not to be believed, or might have found defendant guilty on the basis of the evidence other than the test, the record shows that the court did none of these things.
In Wilson, the court said:
There is surprisingly little authority respecting the question of the effect upon a conviction of a trial court’s misconception regarding an essential element of the offense in a non-jury case. Indeed, we find no direct authority. However, analogous decisions involving jury cases and several basic principles of criminal law furnish clear guideposts to a resolution of this issue.
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[T]he comparable and controlling decisions are those jury cases involving the related questions of erroneous instructions. If this case had been tried to a jury and the comments voiced by the learned trial judge had taken the form of jury instructions, a conviction obtained thereunder could not stand * * * . Is there any difference between a trial judge formally instructing the jury as to what he thinks the applicable law to be and in effect instructing *169himself similarly in a non-jury case? [Footnote omitted.] We think not. In each instance a conviction has resulted from the application of improper standards of law to the facts by the trier of fact. Such a case, we believe, compels reversal of the conviction, (p. 324)
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It does not matter whether or not guilt is a close question. The accused is entitled in any case to be tried under proper legal criteria. * * * (p. 325).
Wilson was followed in State v. Matsuda, supra, and in my opinion this is another case in which it should be applied. Accordingly, I would reverse.
The Court: You put the pill in your mouth and took a slug so that you would wash —.
The Defendant: Yes. I can’t swallow a pill without anything else.
The doubt raised here as to the probative value of the test was at least as significant as in State v. Baker and the cases cited with it, above. See Donegan, Chemical Tests and the Law, ch. IV; Erwin, Defense of Drunk Driving Cases § 14.06 (2d ed.); 4 Attorneys’ Textbook of Medicine § 133.24 (3d ed.); 4 Cyclopedia of Medicine, Surgery, Specialties, p. 709.