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Electronically Filed
Supreme Court
SCWC-12-0001121
15-MAY-2017
08:12 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
RAYMOND S. DAVIS,
Petitioner/Defendant-Appellant.
SCWC-12-0001121
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001121; CASE NO. 1DTA-12-01623)
MAY 15, 2017
McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
This case concerns the admissibility of two
Intoxilyzer Supervisor’s Sworn Statements to prove that the
Intoxilyzer used to test Raymond S. Davis’s breath alcohol
content was in proper working order. The State relied on these
out-of-court statements in establishing the reliability of
Davis’s breath alcohol test results, which in turn served as a
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basis for his conviction for the offense of operating a vehicle
under the influence of an intoxicant. We consider whether the
Intoxilyzer Supervisor’s Sworn Statements were admissible given
the facts of this case under the Hawaii Rules of Evidence.
I. BACKGROUND
The State of Hawaiʻi filed a complaint in the District
Court of the First Circuit (district court), charging that, on
March 3, 2012, Raymond S. Davis committed the offense of
Operating a Vehicle Under the Influence of an Intoxicant
(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-
61(a)(1) and/or (a)(3) (Supp. 2011).1 At the commencement of the
bench trial,2 the State orally arraigned Davis only under HRS §
291E-61(a)(3) for operating or assuming actual physical control
1
HRS § 291E-61(a) provides in relevant part:
A person commits the offense of operating a vehicle under
the influence of an intoxicant if the person operates or
assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount
sufficient to impair the person’s normal mental
faculties or ability to care for the person and guard
against casualty; [or]
. . . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath . . . .
HRS § 291E-61(a) (Supp. 2011).
2
The Honorable Shirley Kawamura presided.
2
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of a vehicle upon a public way, street, road, or highway with
.08 or more grams of alcohol per 210 liters of breath. Davis
entered a plea of not guilty to the charge.
The State’s first witness was Officer Russell
Maeshiro, who testified that on March 3, 2012, around 2:10 a.m.,
he stopped Davis’s car after observing Davis weave in and out of
marked lanes without using his blinkers or hand signals.
Officer Maeshiro approached the driver’s side of the vehicle and
observed that Davis had red, bloodshot, glassy eyes and noted
that Davis spoke with an apparent slight slur. The officer
stated that he asked Davis to complete a field sobriety test
after smelling the odor of an alcoholic beverage coming from the
interior of Davis’s car. At this point in the testimony, Davis
stipulated that, based on Officer Maeshiro’s observations, the
officer had reasonable suspicion to stop Davis and probable
cause to arrest him for OVUII.
Officer Kimberly Ann Chaney testified that she
transported Davis from the location of the stop to the Kalihi
police station. Officer Chaney related that she informed Davis
of the implied consent law by reading him form HPD-396K.3 After
3
Davis has not challenged the validity of his consent to take the
breath test. See State v. Won, 137 Hawaiʻi 330, 372 P.3d 1065 (2015).
3
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Davis elected to take a breath test, Officer Chaney testified
that she turned on the Intoxilyzer 8000, identified as serial
number 80-003486 (Intoxilyzer), and that the machine proceeded
to conduct and pass an internal self-check.
After questioning Officer Chaney regarding the
internal self-check, the State asked whether “based on [Officer
Chaney’s] training and experience in operating the Intoxilyzer
8000,” the instrument “appear[ed] to be operating properly and
accurately on the date in question.” Before Officer Chaney
responded, the State showed to defense counsel two Intoxilyzer
8000 Accuracy Test Supervisor’s Sworn Statements, dated February
29, 2012, and March 16, 2012 (Sworn Statements 1 and 2,
respectively). The State, however, asked no questions of
Officer Chaney regarding Sworn Statements 1 and 2. Rather, the
State informed the court that Sworn Statements 1 and 2 “show[ed]
that the instrument was working properly” and that it sought to
admit the documents into evidence as proof of the Intoxilyzer’s
condition and accuracy.
The top half of Sworn Statements 1 and 2 includes a
machine printout of the calibration testing data from the
Intoxilyzer. The bottom half of Sworn Statements 1 and 2
includes a pre-printed text block in which a person by the name
of Woo Kang is identified as the Intoxilyzer supervisor. As to
4
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the machine printout of the calibration testing data, there is a
table listing the following information in this order: (1) air
blank; (2) simulator temperature; (3) reference sample #1; (4)
air blank; (5) air blank; (6) simulator temperature;
(7) reference sample #2; (8) air blank; (9) ITP check; and
(10) air blank. Next to each category of information, except
the simulator temperatures, is a data entry based on “g/210L
BrAC.”4 Next to each data entry is a time stamp.
The pre-printed text block located in the bottom half
of Sworn Statements 1 and 2 contains the following statement:
I, Woo KANG, swear that the aforementioned information is
true and correct and that I am a duly licensed Intoxilyzer
8000 supervisor trained to maintain and perform accuracy
tests on the Intoxilyzer 8000. The Intoxilyzer 8000 is a
breath alcohol testing instrument approved for use in the
State of Hawaii pursuant to section 321-161 of the Hawaii
Revised Statutes as amended. The Intoxilyzer was operating
accurately in compliance with the State of Hawaii
Department of Health Administrative Rules, Title Eleven,
Chapter 114-7, on the date indicated below, when I
conducted the accuracy test recorded on this document.
Below this pre-printed language are the date, Woo Kang’s
signature, and his license number and its expiration date.
Davis objected to Sworn Statements 1 and 2 being
entered into evidence based upon, inter alia: (1) lack of
4
It appears that “g/210L BrAC” denotes a measurement of alcohol
concentration, which Hawaiʻi Administrative Rules (HAR) § 11-114-4 defines as
“grams of alcohol per two hundred ten liters of breath.” See HAR § 11-114-4
(1993).
5
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foundation; (2) hearsay; and (3) hearsay within hearsay. Davis
argued that Sworn Statements 1 and 2 did not substantively
comply with the requirements of Hawaii Rules of Evidence (HRE)
Rule 803(b)(6) (1993 & Supp. 2002), which is the hearsay
exception for records of regularly conducted activity (i.e.,
business records). Further, Davis maintained that without more
information or testimony as to Sworn Statements 1 and 2, the
data printout reflecting the calibration test results was
meaningless to the court; he noted, for example, that there was
no evidence presented as to what known reference samples were
used in the calibration testing and what their “target values”
or output should have been in the machine’s data printout.
Additionally, Davis contended that there was no information
presented as to the specifics of the calibration procedure
performed by Kang, which apparently differed from the
Intoxilyzer’s internal self-check. Davis also objected to the
admission of Sworn Statements 1 and 2 into evidence under the
public records exception. Davis argued that Sworn Statements 1
and 2 lacked reliability on their face because the State failed
to present the circumstances of how the information was
obtained, given that Kang did not testify at trial.
The State contended that there was sufficient legal
basis under HRE Rule 803(b)(8) (1993 & Supp. 2002) for the
6
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admission of Sworn Statements 1 and 2 into evidence because they
were public records made in the course of a regularly conducted
activity. The State maintained that each document was a self-
authenticating copy of the original log, which was kept in the
custody of the Honolulu Police Department (HPD), a public
office, and that each document contained a data compilation.
The State further argued that the criteria for admitting Sworn
Statements 1 and 2 into evidence were met because each document,
on its face, complied with the requirements prescribed in the
Hawaiʻi Administrative Rules (HAR), and each document indicated
that the Intoxilyzer was “operating accurately” when calibrated.
The State maintained that the district court did not need to
look at the data printout set forth in Sworn Statements 1 and 2
to determine whether or not the device was operating accurately
because Kang swore that the machine was operating accurately in
compliance with the HAR.
Over the defense’s objection, the district court
received into evidence Sworn Statements 1 and 2.5 The district
court, also over objection, admitted into evidence the March 3,
2012 Sworn Statement of Intoxilyzer Operator (Operator
5
The district court did not expressly indicate on what basis it
was admitting Sworn Statements 1 and 2 into evidence, but it appears that the
court’s ruling was based on HRE Rules 902(4) (1993 & Supp. 2002), 1005
(1993), and 803(b)(8) (1993 & Supp. 2002).
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Statement), which indicated that the breath alcohol content
measured by the Intoxilyzer for Davis was .139 grams of alcohol
per 210 liters of breath.
Based on the evidence presented, the district court
concluded that the State met the three foundational requirements
to show that Davis’s breath test results could be relied on as
substantive evidence: (1) the Intoxilyzer was in proper working
order; (2) its operator was qualified; and (3) the test was
properly administered. The court also determined that the State
showed strict compliance with the requirements of the HAR.
Consequently, the district court concluded that the State proved
beyond a reasonable doubt that Davis had .08 or more grams of
alcohol per 210 liters of breath at the time he was driving on
March 3, 2012. Accordingly, the district court found Davis
guilty of the offense charged and entered its Order and Notice
of Entry of Order on November 29, 2012.
Davis appealed to the Intermediate Court of Appeals
(ICA), challenging the district court’s admission of Sworn
Statements 1 and 2 into evidence on the grounds that they did
not meet the foundational requirements and failed to comply with
8
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the requirements of the business records exception.6 Davis noted
that he had objected at trial to the admission of Sworn
Statements 1 and 2 under the Hawaii Rules of Evidence as
inadmissible hearsay. Davis further contended that because the
district court erred in admitting Sworn Statements 1 and 2, the
State failed to present any evidence that the Intoxilyzer used
to test his breath alcohol content was in proper working order
and thus failed to lay a proper foundation for the admission of
his breath test results. In response, the State maintained that
the district court properly admitted Sworn Statements 1 and 2
into evidence as public records under HRE Rule 803(b)(8). The
State therefore argued that the district court did not err in
admitting Davis’s breath test results into evidence.
In a Summary Disposition Order, the ICA ruled that the
district court did not err by admitting Sworn Statements 1 and 2
into evidence because they were admissible as self-
authenticating public records under HRE Rules 803(b)(8) and
902(4). The ICA reasoned that because Intoxilyzer calibration
tests by the HPD are required, pursuant to HAR § 11-114-12,7 to
6
Davis also contended that Sworn Statements 1 and 2 were
inadmissible because both documents were meaningless and irrelevant due to
the absence of essential information and because their admission violated his
confrontation rights under the Hawaiʻi Constitution.
7
HAR § 11-114-12 provides,
(continued. . .)
9
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be kept and maintained by the Intoxilyzer supervisor for at
least three years, Sworn Statements 1 and 2 are public records
or reports of a public agency and, therefore, an exception to
hearsay within the meaning of HRE Rule 803(b)(8).8 Accordingly,
the ICA affirmed the district court’s Order and Notice of Entry
of Order entered on November 29, 2012.
II. STANDARDS OF REVIEW
“When application of a particular evidentiary rule can
yield only one correct result, the proper standard for appellate
review is the right/wrong standard.” State v. Jhun, 83 Hawaiʻi
(. . .continued)
(a) Records shall be kept and maintained at the direction
of a supervisor.
(b) Records shall include information on:
. . . .
(2) Accuracy tests;
. . . .
(c) Records maintained pursuant to subsection (a) shall be
retained by the jurisdiction for at least three years.
HAR § 11-114-12 (1993).
8
The ICA also concluded that Davis’s objection for lack of
foundation was without merit and noted that Davis’s objection based on
relevance was waived pursuant to Hawaiʻi Rules of Appellate Procedure Rule
28(b)(4). In the alternative, with regard to the relevancy argument, the ICA
indicated that because Sworn Statements 1 and 2 state that “[t]he Intoxilyzer
was operating accurately in compliance with the State of Hawaiʻi Department of
Health Administrative Rules, Title Eleven, Chapter 114-7,” these documents
were relevant to demonstrate that the Intoxilyzer was working properly during
Davis’s breath test on March 3, 2012.
10
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472, 477, 927 P.2d 1355, 1360 (1996) (quoting Kealoha v. Cty. of
Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)).
However, in cases where the rules of evidence require a
“judgment call” by the trial court, “the traditional abuse of
discretion standard should be applied.” Id. Thus, in Jhun, in
reviewing the trial court’s ruling with respect to hearsay and
HRE Rule 803(b)(8), this court applied the right/wrong standard
because the trial court did not have to make a “judgment call”
when it determined that the proffered evidence failed to qualify
under the public records exception, as the report did not set
forth factual findings resulting from an investigation. Id. at
477-81, 927 P.2d at 1360-64.
III. DISCUSSION
In his Application for Writ of Certiorari, Davis
contends that the ICA erred in concluding that the district
court properly admitted into evidence Sworn Statements 1 and 2
under the Hawaii Rules of Evidence.9 Davis maintains that
because Sworn Statements 1 and 2 were improperly admitted,
evidence of his breath alcohol content obtained from the
9
Davis also challenges the admissibility of Sworn Statements 1 and
2 based on lack of relevance, lack of trustworthiness, and a violation of his
confrontation rights under the Hawaiʻi Constitution. In light of our
disposition of this case, it is not necessary to address these arguments.
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Intoxilyzer was also improperly received and thus there was
insufficient evidence to support his OVUII conviction.
In State v. Thompson, 72 Haw. 262, 814 P.2d 393
(1991), this court noted that to admit a specific Intoxilyzer
breath alcohol test result into evidence, the prosecution must
lay a proper foundation “to establish the accuracy of the
alcohol concentrations used in breath tests.” Id. at 263, 814
P.2d at 394. The foundation must show that “(1) the intoxilyzer
was in proper working order; (2) its operator was qualified; and
(3) the test was properly administered.” Id. at 263, 814 P.2d
at 394-95 (quoting State v. Souza, 6 Haw. App. 554, 558, 732
P.2d 253, 257 (1987)). This foundation is necessary to prove
the reliability of the test result that establishes intoxication
before the test result can be relied on as a substantive fact.
Souza, 6 Haw. App. at 558, 732 P.2d at 256.
“[I]n 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
[Hawaiʻi Administrative] Rules [governing the testing of blood,
breath, and other bodily substances for alcohol concentration]
which have a direct bearing on the validity and accuracy of the
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test result.”10 State v. Kemper, 80 Hawaiʻi 102, 105, 905 P.2d
77, 80 (App. 1995) (quoting State v. Matsuda, 9 Haw. App. 291,
293, 836 P.2d 506, 508 (1992)). This includes establishing that
the calibration procedure used to test the accuracy of the
Intoxilyzer strictly complied with the HAR because the
calibration test has a “direct bearing on the validity and
accuracy of the test result obtained from that Intoxilyzer.”
Souza, 6 Haw. App. at 562, 732 P.2d at 259. Accordingly, in
order “to fulfill the foundational prerequisites of
admissibility” of the test result in this case, the State was
required to show that the Intoxilyzer calibration test, which
has a direct bearing on the validity and accuracy of Davis’s
breath test result, was in compliance with HAR § 11-114-711 and
10
Title 11, chapter 114 of the HAR provides the relevant rules and
regulations for the “Testing of Blood, Breath, and Other Bodily Substances
for Alcohol Concentration.” It applies to “individuals or laboratories who
collect samples for or conduct forensic alcohol testing for the purpose of
introduction of the alcohol test results into evidence in . . . criminal
proceedings under applicable State driving under the influence of alcohol
statutes.” HAR § 11-114-1(b) (1993).
11
HAR § 11-114-7 provides the following:
(a) Every accuracy test procedure shall be approved by the DUI
coordinator in writing and shall include, but not be limited to the following
requirements:
(1) The test shall be conducted by a supervisor;
(2) At least two different reference samples and an
air blank shall be run with each accuracy test;
(continued. . .)
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was therefore in proper working order on the calibration testing
dates. See id.
A. Admissibility under Public Records Exception,
HRE Rule 803(b)(8)
The State contended at trial, and the ICA agreed, that
Sworn Statements 1 and 2 were admissible public records under
HRE Rule 803(b)(8) (1993 & Supp. 2002) and thus demonstrated
that the Intoxilyzer was in proper working order on the dates of
the calibration testing.12
(. . .continued)
(3) Reference samples shall be chosen so that their
target values are not less than 0.04gm alcohol/210
liters and not greater than 0.25gm alcohol/210
liters;
(4) Reference sample target values shall differ from
each other by at least 0.04gm alcohol/210
liters;
(5) Reference sample test results which vary from the
target value by more than plus or minus 0.0/gm
alcohol/210 liters or plus or minus ten percent,
whichever is greater, shall be cause for the
breath alcohol testing instrument used to be
removed from service until the fault has been
corrected; and
(6) An accuracy test shall be performed on an
operating instrument at intervals not to exceed
thirty-one days.
HAR § 11-114-7 (1993).
12
At oral argument, counsel for the State maintained that Sworn
Statements 1 and 2 would not be admissible hearsay under the public records
exception, but that they would instead be admissible under the business
records exception. See Oral Argument at 20:10-26, 23:25-58, State v. Davis,
SCWC-12-0001121 (argued Dec. 17, 2015), http://oaoa.hawaii.gov/jud/oa
/15/SCOA_121715_scwc12_1121.mp3. In response to a question by the court,
(continued. . .)
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i. Analysis of “Matters Observed,” HRE Rule 803(b)(8)(B)
HRE Rule 803(b)(8) sets forth the public records
hearsay exception:
Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed
pursuant to duty imposed by law as to which matters there
was a duty to report, excluding, however, in criminal cases
matters observed by police officers and other law
enforcement personnel, or (C) in civil proceedings and
against the government in criminal cases, factual findings
resulting from an investigation made pursuant to authority
granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.
HRE Rule 803(b)(8) (1993 & Supp. 2002).
Thus, the public records exception to the hearsay rule
allows for the admission of records, reports, statements, or
data compilations, in any form, of public offices or agencies if
those documents contain certain categories of information and
meet other requirements of this hearsay exception. Id. Under
HRE Rule 803(b)(8)(B), a public record may be admissible if it
sets forth “matters observed pursuant to a duty imposed by law
as to which there was a duty to report.” A record or report
will not be admissible under the public records exception,
however, if it falls within the exclusion clause of HRE Rule
803(b)(8)(B), which prohibits the admission in criminal cases of
(. . .continued)
counsel changed his position and argued that the public records exception
would be a basis for admitting Sworn Statements 1 and 2 into evidence. Id.
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“matters observed by police officers and other law enforcement
personnel.” Id.
Therefore, determining whether proffered hearsay
evidence falls within HRE Rule 803(b)(8)(B) requires a two-part
inquiry. First, the proponent of the evidence must establish
that the record or report presents “matters observed” and that
there existed a duty to make and report the observations. Id.
Second, the proffered evidence must not fall within the criminal
case exclusion clause as a matter observed by law enforcement
personnel.13 Id.; see also Addison M. Bowman, Hawaii Rules of
Evidence Manual § 803-3[8][D], at 8-44 (2016-2017 ed.).
As to the first inquiry, the phrase “matters observed”
“could reach virtually everything, but apparently it was
intended to have [a] narrower meaning.” Christopher B. Mueller
& Laird C. Kirkpatrick, Evidence § 8.50, at 910 (5th ed. 2012).
That is, the term “matters observed” narrows the coverage of
subsection (B) “to information that is concrete and simple in
nature,” rather than encompassing all “records describing an
almost endless variety of acts, events, and conditions in the
13
Because we conclude below that Kang’s statement in the bottom
half of Sworn Statements 1 and 2 does not constitute a “matter observed,” we
need not reach the issue of whether Sworn Statements 1 and 2 fall within the
public records exclusion for criminal cases as matters observed by law
enforcement personnel. See HRE Rule 803(b)(8)(B).
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world observed and depicted by public officials.” Id. at 910.
Indeed, “matters observed” are “routine recordations not
resulting from analysis or judgment” and do not encompass
“conclusions, opinions, and evaluative findings.” Bowman,
supra, § 803-3[8][D], at 8-44 (emphasis added); see also Pool v.
Wade, 685 N.E.2d 791, 793 (Ohio Ct. App. 1996) (analyzing
“matters observed” subsection of similar Ohio public records
exception and stating that “[n]otably, the Rule does not include
records, or portions of records, that may be characterized as
‘evaluations’ or ‘interpretations’ of . . . events or
transactions.” (quoting Weissenberger’s Ohio Evidence § 803.105,
at 409 (1996))).
Examples of data or information compilations that do
constitute “matters observed” include official weather
observations, Village of Evanston v. Gunn, 99 U.S. 660, 666-67
(1878) (meteorological observations by U.S. Signal Service);
judgments or orders of the court, State v. Samonte, 83 Hawaiʻi
507, 538, 928 P.2d 1, 32 (1996) (court record of judgment of
conviction); a Coast Guard description of a damaged buoy, United
States v. Tug Otto, 296 F. Supp. 1130, 1133 (S.D. Tex. 1967)
(record of the board of survey finding that the buoy was damaged
beyond economic repair admissible because “[n]o particular
degree of expertise would be required to make a determination if
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a particular buoy were damaged beyond economic repair”); reports
detailing observed conditions at institutional facilities,
Schwartzberg v. Califano, 453 F. Supp. 1042, 1046 (S.D.N.Y.
1978) (U.S. Department of Health, Education, and Welfare report
recounting observations of nursing home and health facility);
and “observations in an accident report that describe the scene
and equipment and report concrete measurements and easily
observable damage or destruction,” Mueller & Kirkpatrick, supra,
§ 8.50, at 911.
ii. Comparison to “Factual Findings,” HRE Rule 803(b)(8)(C)
Comparing the term “matters observed” within
subsection (B) of HRE Rule 803(b)(8) and the term “factual
findings” within subsection (C) further demonstrates the
former’s limited scope. “Factual findings from an
investigation” admissible under HRE Rule 803(b)(8)(C)’s federal
counterpart14 have been interpreted by the United States Supreme
14
The federal public records hearsay exception is codified at
Federal Rules of Evidence (FRE) 803(8) and provides in relevant part:
(8) Public Records. A record or statement of a public
office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty
to report, but not including, in a criminal case,
(continued. . .)
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Court to include “conclusions or opinions that flow from a
factual investigation.” See Beech Aircraft Corp. v. Rainey, 488
U.S. 153, 164 (1988); see also State v. Jhun, 83 Hawaiʻi 472,
481, 927 P.2d 1355, 1364 (1996) (noting that “independent
conclusions or opinions” may be admissible as “factual findings”
under HRE Rule 803(b)(8)(C)). Notably, the legislative history
of the federal public records exception suggests that its
drafters envisioned the “factual findings” subsection--rather
than the “matters observed” or “activities of an office or
agency” subsections--as providing the gateway for admission of
“evaluative reports” that would otherwise constitute hearsay.
See Beech Aircraft Corp., 488 U.S. at 164-67 (discussing
legislative history of FRE 803(8)(A)(iii) and determining that
(. . .continued)
a matter observed by law-enforcement personnel;
or
(iii) in a civil case or against the government
in a criminal case, factual findings from a
legally authorized investigation; and
(B) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
FRE 803(8) (2014).
“Although cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules
of Evidence.” State v. Jhun, 83 Hawaiʻi 472, 478, 927 P.2d 1355, 1361 (1996).
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the Advisory Committee “surely” intended that “factual findings”
subsection would allow for admission of “evaluative reports”).
In keeping with this distinction, the term “matters
observed” within the federal public records exception has been
interpreted as excluding evaluative findings and opinions. See
Baker v. Elcona Homes Corp., 588 F.2d 551, 556-57 (6th Cir.
1978). In Baker, a defendant in a vehicular negligence lawsuit
sought to introduce a police accident report to settle the
disputed fact of whether a traffic light was red or green at the
time of an accident. Id. at 555. The police report included
(1) the responding officer’s visual description of the accident
scene upon arrival, including measurements and physical
markings, (2) a transcript of the officer’s subsequent interview
with one of the parties, (3) a notation that “apparently unit #2
(the Valiant) entered the intersection against a red light,” and
(4) notations that “unit #2” failed to yield the right-of-way
and that both drivers were “preoccupied.” Id. at 554-55. The
police report was admitted into evidence over the plaintiff’s
hearsay objection. Id. at 555. On appeal, the Sixth Circuit
Court of Appeals determined that the “matters observed” and
“factual findings” subsections of FRE 803(8) were applicable.
Id. at 555-56. The Court of Appeals first concluded that “the
direct observations and recorded data” of the responding officer
20
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“clearly” constituted “matters observed” within the meaning of
FRE 803(8)(A)(ii). Id. at 556. The Sixth Circuit’s “principal
concerns,” however, related to, inter alia, whether the traffic
light and fault notations were properly admissible under either
the “matters observed” or “factual findings” subsections. Id.
The Court of Appeals concluded that the traffic light and fault
notations were more appropriately characterized as “factual
findings” falling under FRE 803(8)(A)(iii), because they related
to “whether the light was red or green for one driver or the
other at the time of the accident.” Id. at 557. In so
deciding, the Sixth Circuit made the following distinction
between the “matters observed” and “factual findings”
subsections:
Applying the rule and its background to the facts here, it
is apparent that whether the light was red or green for one
driver or the other at the time of the accident is
distinctly a factual finding within the meaning of the rule
. . . . It is also clear from the construction of the rule
itself that factual findings admissible under Rule
803(8)[(A)(iii)] may be those which are made by the
preparer of the report from disputed evidence, as
contrasted to those facts which are “matters observed
pursuant to duty imposed by law as to which matters there
was a duty to report” called for under Rule
803(8)[(A)(ii)].
Id. at 557–58. Thus, the court considered that the “matters
observed” subsection of the public records exception encompassed
the “direct observations and recorded data” included by the
officer in his accident report, whereas the “factual findings”
subsection applied to conclusions or evaluations (i.e., whether
21
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the light was red or green at the time of the accident) based on
those observations or data. Id.; see also Bradbury v. Ford
Motor Co., 358 N.W.2d 550, 552 (Mich. 1984) (noting the
distinction between the “concepts” in the “matters observed” and
“factual findings” subsections of the public records hearsay
exception).
In this case, to meet the requirements under HRE Rule
803(b)(8)(B), Kang’s statement in the bottom half of Sworn
Statements 1 and 2 that the “Intoxilyzer was operating
accurately” must constitute a “matter[] observed.”15 See HRE
Rule 803(b)(8)(B). In his sworn statement, Kang indicated that
he was a “duly licensed Intoxilyzer 8000 supervisor trained to
maintain and perform accuracy tests on the Intoxilyzer 8000.”
Indeed, HAR § 11-114-7 requires that an Intoxilyzer supervisor
conduct the calibration tests, and HAR § 11-114-916 prescribes
15
The machine printout of the calibration testing data included
within the top half of Sworn Statements 1 and 2 may constitute a collection
of “routine recordations” qualifying as “matters observed” within the meaning
of HRE Rule 803(b)(8)(B). Bowman, supra, § 803-3[8][D], at 8-44. Because
this court concludes that the sworn statement of Kang included within the
bottom half of Sworn Statements 1 and 2 does not constitute a “matter
observed,” we do not analyze HRE Rule 803(b)(8)(B) with respect to the
testing data.
16
HAR § 11-114-9 provides in relevant part:
(b) No person shall serve as a supervisor without a
valid license issued by the DUI coordinator or the chief of
police.
(continued. . .)
22
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the training and licensing requirements for Intoxilyzer
supervisors. Thus, based on the record and the qualification
requirements for Intoxilyzer supervisors, Kang was required to
have specialized knowledge, experience, and training in
Intoxilyzer calibration testing. Kang’s sworn statement that
the “Intoxilyzer was operating accurately” was based upon his
technical analysis of the data included within the top half of
Sworn Statements 1 and 2, which he collected in conducting the
Intoxilyzer calibration tests. Therefore, Kang’s sworn
(. . .continued)
(c) A supervisor may practice only in the
jurisdiction designated on the license.
. . . .
(e) A supervisor’s license shall be effective for
three years from date of issuance unless revoked by the
issuer.
. . . .
(h) Training programs for supervisors shall:
(1) Be conducted either by the DUI coordinator,
the chief of police, the chief’s
representative(s) or, with the written
approval of the DUI coordinator or the
chief of police, by a representative(s) of
the manufacturer of the breath alcohol
testing instrument;
(2) Consist of a minimum of eight hours; and
(3) Be approved in writing by the DUI
coordinator except as provided in
subsection (j)(1).
HAR § 11-114-9 (1993).
23
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statement that the “Intoxilyzer was operating accurately” is an
expert conclusion based on his technical proficiency in
Intoxilyzer calibration testing.
Kang’s conclusion that the Intoxilyzer was functioning
accurately is similar to the responding officer’s conclusion in
Baker that a driver ran a red light and was at fault for a
resulting accident. 588 F.2d at 556-57. The responding officer
in Baker gathered data by observing the physical circumstances
of the accident scene and conducting other investigative
measures; then, based on that data, the officer made a
conclusion that the light was red at the time of the accident.
Id. at 554-55. Here, Kang gathered data by conducting
calibration testing on the Intoxilyzer; then, based on the data
he recorded in the top half of Sworn Statements 1 and 2 and
using his training and specialized knowledge, he rendered a
conclusion that the Intoxilyzer was functioning accurately and
included this conclusion in the bottom half of Sworn Statements
1 and 2.
As in Baker, Kang’s interpretive conclusion cannot be
characterized as a “matter observed” because it is not a “direct
observation,” a “routine recordation,” or “recorded data”
reflecting observations that are concrete and simple. 588 F.2d
at 556; Bowman, supra, § 803-3[8][D], at 8-44. Kang’s
24
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conclusion therefore does not constitute a “matter observed.”17
Accordingly, the ICA and the district court erred in admitting
Sworn Statements 1 and 2 into evidence as public records under
HRE Rule 803(b)(8)(B).18
iii. State v. Ofa Does Not Provide for a Different Result
The dissenting opinion relies primarily on an ICA
decision, State v. Ofa, 9 Haw. App. 130, 828 P.2d 813 (1992), in
support of its position. Initially, it is noted that the
dispositive issue in Ofa was whether the State’s failure to
include the known temperature of the solutions used to test an
Intoxilyzer rendered the resulting calibration tests
insufficient to lay a foundation for Ofa’s breath test results.
17
The dissent seeks to distinguish Baker by describing Sworn
Statements 1 and 2 as “routine determination[s] that a piece of equipment
works properly,” or alternatively, as “record[s] of the direct observations
of the Intoxilyzer supervisor” and thus “plainly . . . ‘matter[s] observed.’”
Dissent at 6, 8. Even assuming Kang’s testing of the Intoxilyzer may be
characterized as “routine” in the sense that HAR § 11-114-7(6) requires that
such equipment be tested for accuracy by a qualified professional “at
intervals not to exceed thirty-one days,” Kang’s statement as set forth in
the bottom half of Sworn Statements 1 and 2 is not a “direct observation[]”
or simple “determination that a piece of equipment works properly.” Dissent
at 6, 8. Rather, for the reasons described above, the statement reflects an
evaluative opinion that was based on Kang’s specialized knowledge of
Intoxilyzer calibration procedures. See HAR § 11-114-7(6) (1993), supra note
11.
18
Kang’s conclusion contained in Sworn Statements 1 and 2 is not
admissible under HRE Rule 803(b)(8)(C) as a “factual finding[] resulting from
an investigation made pursuant to authority granted by law” because HRE Rule
803(b)(8)(C) is restricted in criminal cases to use only against the
government and thus may not be used against Davis in this case. HRE Rule
803(b)(8)(C); see also Jhun, 83 Hawaiʻi at 477, 927 P.2d at 1360 (quoting
same).
25
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Id. at 139, 828 P.2d at 818. The ICA answered this question in
the affirmative and reversed Ofa’s conviction on that basis
alone. Id. at 141, 828 P.2d at 820. As such, the ICA’s other
rulings in the case are dicta. Although one of those rulings
addressed whether a log book was admissible under HRE Rule
803(b)(8)(B), it is not contrary to our decision in this case.
In Ofa, the defendant was charged with driving under
the influence of intoxicating liquor. Id. at 132, 828 P.2d at
815. At trial, the State sought to introduce evidence of the
defendant’s Intoxilyzer breath test result. Id. at 133, 828
P.2d at 816. As foundational evidence that the relevant
Intoxilyzer was functioning accurately on the date that the
breath test was administered, the State offered into evidence a
copy of a page of a “log book” (Log) maintained by HPD. Id. at
132-33, 828 P.2d at 815-16. HPD criminalist Gilbert Chang, a
certified Intoxilyzer operator-supervisor, testified that
“certified operator-supervisors periodically test or calibrate
the HPD’s intoxilyzers for accuracy” and that “the date and
results of the testing for accuracy” were entered into the Log.
Id. Chang testified that the initials “JW” appearing on the Log
signified that John Wadahara “had tested the Intoxilyzer for
26
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accuracy on [the noted] dates.”19 Id. at 133, 828 P.2d at 816.
Chang further testified that “the Log indicated that the
Intoxilyzer was operating accurately on May 31 and June 28,
1990.” Id.
Over the defendant’s objection, the trial court
admitted the Log as a public record under HRE Rule 803(b)(8)(B).
Id. at 135, 828 P.2d at 816. Ofa raised several issues in
appealing his subsequent conviction, including that the Log
constituted hearsay and that the trial court erred in admitting
it into evidence. Id. at 134, 828 P.2d at 816.
The ICA concluded that “the only issue” on appeal with
respect to the admissibility of the Log was “whether the Log
[was] excludable from the public records and reports exception
to the hearsay rule as ‘matters observed by . . . law
enforcement personnel’ in a criminal case.” Id. at 135, 828
P.2d at 817. Thereafter, the ICA devoted its analysis to the
issue of whether the Log fell within HRE Rule 803(b)(8)(B)’s
exclusion clause.20 Id. at 135-137, 828 P.2d at 817. There was
19
The Ofa opinion provides no additional information on the
contents of the Log. 9 Haw. App. at 133, 828 P.2d at 815. The ICA noted
that Wadahara did not testify in the case. Id. at 133, 828 P.2d at 816.
20
In determining whether the Log fell within the exclusion clause,
the ICA discussed the Log’s nonadversarial and trustworthy nature. Ofa, 9
Haw. App. at 136, 828 P.2d at 817. As in Ofa, issues of the adversarial
nature or trustworthiness of evidence proffered under the “matters observed”
(continued. . .)
27
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no discussion with respect to the first step of the inquiry
under HRE Rule 803(b)(8)(B) regarding whether the Log’s contents
constituted “matters observed.” Id. Accordingly, Ofa does not
speak to the issue in this appeal--whether evaluative opinions
and analyses constitute “matters observed.”21
In this case, the State sought to lay a foundation for
Davis’s breath test results through a document that contained
both data and evaluative opinion. Although the numerical data
included in the top half of Sworn Statements 1 and 2 may be
admissible under HRE Rule 803(b)(8)(B), Kang’s opinion regarding
the Intoxilyzer’s accuracy included in the bottom half is not.
(. . .continued)
subsection of the public records hearsay exception often arise under this
second part of the inquiry rather than the rule’s definitional clause. See,
e.g., United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir. 1986)
(concluding that “maintenance operator’s calibration report” of breathalyzer
machine did not fall within exclusion clause because it was a routine act of
a nonadversarial nature); United States v. Hernandez-Rojas, 617 F.2d 533,
534-35 (9th Cir. 1980) (concluding that deportation warrant with signed and
dated notation “deported to Mexico, Calexico, California” did not fall within
exclusion clause because it was a “ministerial, objective observation”).
21
Thus, neither the holding nor the reasoning of Ofa is “directly
applicable to this case,” dissent at 5, as Davis does not argue that Sworn
Statements 1 and 2 fall within the rule’s exclusion clause.
However, although dicta, Ofa does provide an example of the
intersection of data, evaluative opinion, and hearsay evidence in OVUII
prosecutions in laying a proper foundation for a defendant’s breath test
results: “[b]ased on the Log and other exhibits in evidence, [the certified
Intoxilyzer operator-supervisor] gave his opinion testimony regarding the
accuracy of the Intoxilyzer.” 9 Haw. App. at 137, 828 P.2d at 817. This
combination of evidence, the Ofa court determined, was sufficient to support
the admission of the breath test results under the Hawaii Rules of Evidence.
Id.
28
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See Bowman, supra, § 803-3[8][D], at 8-44 (“matters observed”
falling within HRE Rule 803(b)(8)(B) do not include
“conclusions, opinions, and evaluative findings”). Thus, Sworn
Statements 1 and 2 are not admissible hearsay under HRE Rule
803(b)(8)(B).
iv. Use of Sworn Statements in Administrative Driver’s License
Revocation Proceedings
Our determination that Kang’s evaluative conclusions
as included within the bottom half of Sworn Statements 1 and 2
do not fall within HRE Rule 803(b)(8)(B) is also consistent with
statutory provisions relating to administrative driver’s license
revocation proceedings following an OVUII arrest. In the
administrative revocation process, which is civil in nature, the
State is specifically authorized by statute to rely on
evaluative conclusions virtually identical to those contained in
Sworn Statements 1 and 2 in this case. See HRS § 291E-37(c)(3)
(Supp. 2012); HRS § 291E-38(g) (Supp. 2012). Although written
statements including conclusions on an Intoxilyzer’s accuracy
are permitted in a civil process designed to expeditiously
revoke the license of the arrestee-driver, reliance on such
relaxed evidentiary procedures in criminal proceedings against
an individual facing penal sanctions is neither authorized nor
called for by time considerations.
29
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Under the Hawaii Revised Statutes, administrative
driver’s license revocation procedures may be initiated
following an OVUII arrest when the arresting officer issues a
notice of administrative revocation. HRS § 291E-33(a), (c)
(Supp. 2012). Where the officer has administered a breath,
blood, or urine test establishing the driver’s alcohol
concentration, the relevant authority is required to immediately
forward to the director22 the “sworn statement of the person
responsible for maintenance of the testing equipment” to
establish, pursuant to HRS § 321-16123 and rules adopted
thereunder, the following information:
(A) The equipment used to conduct the test was approved for
use as an alcohol testing device in this State;
(B) The person had been trained and at the time the test
was conducted was certified and capable of maintaining the
testing equipment; and
(C) The testing equipment used had been properly maintained
and was in good working condition when the test was
conducted . . . .
22
See HRS § 291E-1 (2007) (defining “director” as “the
administrative director of the courts or any other person within the
judiciary appointed by the director to conduct administrative reviews or
hearings or carry out other functions relating to administrative revocation
under part III”).
23
See HRS § 321-161 (2010) (authorizing the department of health to
establish and administer a statewide program relating to alcohol
concentration testing for purposes of HRS chapter 291E).
30
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HRS § 291E-36(a), (a)(2) (2007 & Supp. 2012) (emphasis added).24
The director is then required to review the issuance of the
notice of revocation, which must include consideration of the
sworn statement regarding the working condition of the machine
at the time the breath, blood, or urine test was conducted. HRS
§ 291E-37(a), (c)(3) (Supp. 2012).
If the director administratively revokes the
individual’s driver’s license, the driver may request an
administrative hearing to seek review of the decision to revoke
the driver’s license. HRS § 291E-38(a) (Supp. 2012). At the
hearing, the sworn statements relating to the accuracy and
condition of the testing equipment must be admitted into
evidence, and the director “shall” consider the statements
24
We note that the requirements for accuracy testing of breath
testing machines as set forth in HAR § 11-114-7(a) (see supra note 11) apply
to all “individuals or laboratories who collect samples for or conduct
forensic alcohol testing for the purpose of introduction of the alcohol test
results into evidence in either civil or criminal proceedings under
applicable State driving under the influence of alcohol statutes.” HAR § 11-
114-1(b) (emphasis added). This suggests that Sworn Statements 1 and 2, like
the sworn statements contemplated by the administrative driver’s license
revocation statute, are completed pursuant to the accuracy testing procedures
of HAR § 11-114-7(a). See Park v. Tanaka, 75 Haw. 271, 278-79, 859 P.2d 917,
920-21 (1993). In fact, at least with respect to the predecessor revocation
statute, Sworn Statements 1 and 2 are substantively identical to the sworn
statements used in revocation proceedings, in that the top half contains a
machine printout from the calibration testing data of the Intoxilyzer, and
the bottom half includes a pre-printed text block of the Intoxilyzer
supervisor regarding the machine’s accuracy. See Ige v. Admin. Dir. of the
Court, 93 Hawaiʻi 133, 139-40, 997 P.2d 59, 65-66 (App. 2000) (detailing
contents of sworn statements used in driver’s license revocation proceedings
under HRS chapter 286 (repealed 2000)).
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without requiring the testimony of a law enforcement officer or
other person. See HRS § 291E-38(a) (Supp. 2012); HRS § 291E-
38(g). However, should the individual request to “examine a law
enforcement officer or other person who made a sworn statement,”
the director is required to issue a subpoena for that person to
appear at the hearing. HRS § 291E-38(g). Thus, the
administrative driver’s license revocation procedures require
admission and consideration of sworn statements regarding a
breath test equipment’s accuracy and condition, while also
mandating that, upon request, the officer or other qualified
person be subpoenaed to give testimony at an administrative
hearing.
Specifically with respect to the administrative
revocation of a driver’s license, part III of HRS chapter 291E
therefore allows for the submission of documentary evidence to
prove that breath test equipment was operating accurately at the
time that the test was administered to the individual whose
license the State seeks to revoke. Permitting relaxed
evidentiary procedures in this civil setting is in keeping with
the purpose of the administrative revocation process itself,
which is to “provide for the public safety by establishing a
quick, administrative procedure for revoking the licenses of
drunk drivers while they are awaiting trial on criminal DUI
32
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charges.” State v. Toyomura, 80 Hawaiʻi 8, 20, 904 P.2d 893, 905
(1995) (quoting Conf. Comm. Rep. No. 137, in 1990 House Journal,
at 824, 1990 Senate Journal, at 825) (analyzing predecessor
administrative driver’s license revocation procedures under HRS
§ 286-260 (repealed 2000)). In fact, the key benefit of
administrative revocation procedures is the ability to bypass
those protections afforded to criminal defendants at trial:
[T]he main benefit of administrative revocation is that it
allows the State to remove a drunk driver’s license before
the culmination of a lengthy prosecution under the criminal
statute. Currently, a person charged with driving under
the influence must be allowed to continue driving until he
or she is found guilty in a court of law. This process
takes an average of seven or eight months in Hawaii, and
even longer, and while this process is going on, the
dangerous driver, who quite likely is an inveterate repeat
offender, remains on the road.
State v. Higa, 79 Hawaiʻi 1, 6, 897 P.2d 928, 933 (1995) (quoting
Conf. Comm. Rep. No. 137, in 1990 House Journal, at 824-25, 1990
Senate Journal, at 825). Deeming sufficient a sworn statement
regarding maintenance testing on a breath or other test machine,
rather than requiring a qualified person to testify at a
hearing, is thus one way the administrative revocation process
avoids evidentiary and other procedural rules in an effort to
prevent “potentially threatening drivers” from continuing to
drive “between the time [they] are cited and their criminal
adjudication.” Id. at 6, 897 P.2d at 933.
33
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Significantly, unlike the “legitimate, nonpunitive,
and purely remedial functions” of the administrative driver’s
license revocation process, see Higa, 79 Hawaiʻi at 7, 897 P.2d
at 934, a defendant in an OVUII prosecution faces criminal
penalties and loss of the constitutional right to liberty. See
HRS § 291E-61(b) (Supp. 2011) (providing imprisonment penalties
for the offense of operating a vehicle under the influence of an
intoxicant). An individual subject to an OVUII prosecution is
guaranteed the protections afforded to criminal defendants by
the Hawaiʻi Constitution, the United States Constitution, and the
Hawaii Revised Statutes (which includes the Hawaii Rules of
Evidence). Misconstruing HRE Rule 803(b)(8)(B) to allow into
evidence in an OVUII criminal prosecution out-of-court
evaluative opinions and conclusions similar to those contained
within the sworn statements deemed admissible in the civil
driver’s license revocation process would essentially allow
procedures designed specifically for a civil administrative
process to be used in a criminal trial.
v. Davis’s Breath Test Results Lacked Sufficient Foundation
As Professor Bowman explains in his evidence treatise,
evaluative opinions that constitute hearsay may not be admitted
into evidence under HRE Rule 803(b)(8)(B). Bowman, supra, §
803-3[8][D], at 8-44. Public records that include “information
34
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that is concrete and simple in nature” or “routine recordations
not resulting from analysis or judgment” may constitute “matters
observed” within the meaning of HRE Rule 803(b)(8)(B) and merit
admission into evidence under the rule.25 Mueller & Kirkpatrick,
supra, § 8.50, at 910; Bowman, supra, § 803-3[8][D], at 8-44.
Public records that do not constitute “matters observed” because
they include “conclusions, opinions, and evaluative findings”
will not be admissible under the public records exception.26
Bowman, supra, § 803-3[8][D], at 8-44.
25
Our opinion does not preclude any “document or record that
requires any sort of training or specialized knowledge” from being admitted
into evidence under HRE Rule 803(b)(8). Dissent at 9. Rather, a record
prepared using training or specialized knowledge may be admissible under the
rule provided that its contents constitute “matters observed,” in that it
does not contain conclusions, opinions, or evaluative findings. Bowman,
supra, § 803-3[8][D], at 8-44.
26
Though the dissent states that our decision is inconsistent with
those of other federal and state courts on “this issue,” dissent at 2, 7, it
appears that the trial courts of other jurisdictions have routinely utilized
a combination of testimony and written data to lay a foundation for
evaluative opinions and reports, thereby avoiding the precise issue in this
case. See, e.g., Best v. State, 328 A.2d 141, 142-43 (Del. 1974)
(Intoxilyzer calibration tests by state chemist introduced in conjunction
with testimony of police officer/record-keeper regarding “[the Intoxilyzer’s]
proper operation and condition at the time of [the defendant’s] arrest and
testing”); United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985) (card
containing impression of fingerprint and “notation that the fingerprint had
been ‘lifted’ from one of the wooden statuettes by Criminologist Sally Jones”
introduced in conjunction with testimony of different criminologist that the
print on the card was a match to defendant’s left thumb); People v. Black,
406 N.E.2d 23, 24-25 (Ill. App. Ct. 1980) (testimony of evidence technician
that decal affixed to breathalyzer machine “indicated that it had been
recently tested and proven accurate” was sufficient to establish machine’s
accuracy); State v. Jensen, 351 N.W.2d 29, 31, 32-33 (Minn. Ct. App. 1984)
(breathalyzer certification records introduced in conjunction with testimony
of operator who administered defendant’s breath test regarding “the
administration and the reliability of the [breath] test”).
(continued. . .)
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In order to render evaluative opinions or conclusions
based on “matters observed,” other evidence may be introduced in
conjunction with data properly admitted under HRE Rule
803(b)(8)(B).27 This additional evidence may come in a variety
(. . .continued)
Further, the dissent has not identified a case in which this
specific issue--i.e., whether evaluative opinions and conclusions constitute
“matters observed” within the meaning of HRE Rule 803(b)(8)(B) or its state
or federal analogs--has been explicitly considered, reasoned, and ruled on in
the affirmative. See, e.g., State v. Smith, 675 P.2d 510, 511-12 (Or. Ct.
App. 1984) (concluding that “two documents certifying that the breathalyzer
equipment was in proper operating order” were admissible into evidence under
state law public records exception but declining without explanation to
address defendant’s argument that the two documents “encompass[ed] expert
testimony”).
27
To the extent that the dissent suggests that such a combination
of evidence is inconsistent with 24 years of practice in Hawaiʻi courts,
dissent at 2, we note that in numerous cases, the State has laid a foundation
for test results in OVUII prosecutions in part by introducing testimony of a
qualified Intoxilyzer supervisor or other professional familiar with test
equipment calibration procedures. See, e.g., State v. Werle, 121 Hawaiʻi 274,
278, 218 P.3d 762, 766 (2009) (testimony from licensed medical technologist
that he tested the defendant’s blood for alcohol concentration and
“outlin[ing] his training and experience in the use and calibration of . . .
the device he used to test [the defendant’s] blood sample” (internal
quotations omitted)); State v. Kemper, 80 Hawaiʻi 102, 104-05, 905 P.2d 77,
79-80 (App. 1995) (testimony from qualified HPD criminalist that she
calibrated the Intoxilyzer and that “the test was performed properly and that
the results are accurate” (internal quotations omitted)); State v. Young, 8
Haw. App. 145, 148, 795 P.2d 285, 288 (1990) (testimony from HPD certified
Intoxilyzer operator-supervisor that, based on her accuracy checks, the
Intoxilyzer was working “properly and accurately” on the date it was
administered to the defendant); State v. Ofa, 9 Haw. App. 130, 132-33, 828
P.2d 813, 815-16 (1992) (testimony from HPD criminalist and certified
Intoxilyzer operator-supervisor that calibration checks of an Intoxilyzer
were periodically performed and that results were reflected in a
concurrently-admitted record book); State v. Matsuda, 9 Haw. App. 291, 293,
836 P.2d 506, 507 (1992) (testimony from “HPD evidence specialist” and
certified Intoxilyzer supervisor that “he tested the Intoxilyzer . . . for
accuracy” prior to and following its use on the defendant); State v.
Hamasaki, 7 Haw. App. 542, 542, 783 P.2d 1235, 1236 (1989) (testimony from
HPD criminalist and certified Intoxilyzer operator-supervisor that he
conducted calibration testing of the Intoxilyzer).
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of forms, and our decision in this case will not require the
State in every OVUII prosecution to bring to the trial the
Intoxilyzer supervisor who conducted the machine’s most recent
calibration testing. In this particular case, however, no
admissible evidence was adduced in conjunction with the
calibration testing data to establish the Intoxilyzer’s
accuracy, therefore rendering Davis’s breath test results
inadmissible for lack of the requisite foundation.
B. Admissibility under Business Records Exception,
HRE Rule 803(b)(6)
The State also sought to admit Sworn Statements 1 and
2 as business records under HRE Rule 803(b)(6) (1993 & Supp.
2002). “Although ordinarily the proponent of hearsay is
entitled to ‘shop around’ among the exceptions, the public
records exception of [the Federal Rules of Evidence] preempts
this subject matter [of business records] and forecloses access
to business records admissibility.” Addison M. Bowman, Hawaii
Rules of Evidence Manual § 803-3[6][F], at 8-41 (2016-2017 ed.).
Thus, it is generally understood that records excluded by HRE
Rule 803(b)(8) cannot be admitted through the “back door” as a
business record under HRE Rule 803(b)(6). See United States v.
Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) (“The government
may not circumvent the specific requirements of [Federal] Rule
[of Evidence] 803(8) by seeking to admit public records as
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business records under Rule 803(6). Nor may the government
attempt to combine Rules 803(6) and 803(8) into a hybrid rule to
excuse its failure to comply with either.”); United States v.
Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002) (“When
public records are used against a defendant in a criminal
prosecution, the public records exception is the exclusive
applicable hearsay exception.”); United States v. Cain, 615 F.2d
380, 382 (5th Cir. 1980) (“[S]tatements inadmissible as public
agency reports under Rule 803(8) may not be received merely
because they satisfy Rule 803(6) . . . section (6) does not open
a back door for evidence excluded by section (8).”).
As discussed above, Sworn Statements 1 and 2 were not
admissible as public records under HRE Rule 803(b)(8). The
State may not “circumvent the requirements” of HRE Rule
803(b)(8)(B) by seeking their admission under HRE Rule
803(b)(6). Bowman, supra, § 803-3[6][F], at 8-41; Weiland, 420
F.3d at 1074 (indicating that the business records hearsay
exception is not an avenue for admitting evidence that is
inadmissible under the public records exception). Therefore,
Sworn Statements 1 and 2 were not admissible as business records
under HRE Rule 803(b)(6).
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IV. CONCLUSION
Sworn Statements 1 and 2 were improperly admitted
under the public records exception, as they contained an
evaluative opinion that does not constitute a “matter observed”
within the meaning of HRE Rule 803(b)(8). Because there was no
other evidence presented in this case as to the Intoxilyzer
calibration testing, the State failed to lay a sufficient
foundation that the Intoxilyzer was in proper working order when
the breath test was administered to Davis. The district court
thus erred in admitting the Operator Statement (which contained
the result of Davis’s breath test) into evidence in light of the
improper introduction of the calibration records. As the breath
test result was wrongly admitted, the State failed to show that
Davis’s breath alcohol concentration was .08 or more grams of
alcohol per 210 liters of breath, an essential element of the
offense of OVUII under HRS § 291E-61(a)(3).
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Accordingly, the ICA erred in affirming the district
court’s November 29, 2012 Order and Notice of Entry of Order.
We therefore vacate the ICA’s July 29, 2015 Judgment on Appeal
and the district court’s November 29, 2012 Order and Notice of
Entry of Order and remand the case for a new trial.
Phyllis J. Hironaka /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
James M. Anderson /s/ Michael D. Wilson
for respondent
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