State v. Dumford

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-MAY-2021
11:34 AM
Dkt. 53 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
DANIEL J. DUMFORD, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
(KONA DIVISION)
(CASE NO. 3DTA-18-02919)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)

Defendant-Appellant Daniel Dumford (Dumford) appeals

from the Judgment and Notice of Entry of Judgment, entered

September 20, 2019 (Judgment) in favor of Plaintiff-Appellee

State of Hawai#i (State), in the District Court of the Third

Circuit, Kona Division (District Court).1/ The District Court

convicted Dumford of operating a vehicle under the influence of

an intoxicant (OVUII), in violation of Hawaii Revised Statutes

(HRS) § 291E-61(a)(3) (Supp. 2019).2/

1/
The Honorable Margaret K. Masunaga presided.
2/
HRS § 291E-61(a)(3) provides:

§ 291E-61 Operating a vehicle under the influence of
an intoxicant. (a) A person commits the offense of
(continued...)
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Dumford raises two points of error on appeal,

contending that: (1) the District Court erred in admitting

Dumford's Intoxilyzer 8000 (Intoxilyzer) breath test results

(Breath Test) without proper foundation; and (2) the State's

failure to comply with Hawai#i Rules of Penal Procedure (HRPP)

Rule 16 deprived Dumford of his constitutional rights to due

process, equal protection, and effective assistance of counsel.

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we

resolve Dumford's points of error as follows:

Dumford first argues that the State failed to lay a

proper foundation to introduce the Breath Test because it failed

to establish that the Intoxilyzer was in proper working order.

The foundational requirements to admit a Breath Test in

an OVUII case are provided in State v. Davis, 140 Hawai#i 252,

256, 400 P.3d 453, 457 (2017), as follows:
[T]o 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." [State v. Thompson,
72 Haw. 262, 263, 814 P.2d 393, 394 (1991).] 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

2/
(...continued)
operating a vehicle under the influence of an intoxicant if
the person operates or assumes actual physical control of a
vehicle:
. . . .

(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]

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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 [Hawai#i Administrative Rules
governing the testing of blood, breath, and other
bodily substances for alcohol concentration ( HAR)]
which have a direct bearing on the validity and
accuracy of the test result." State v. Kemper, 80
Hawai#i 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
§ 11-114-7 and was therefore in proper working order
on the calibration testing dates. See id.

(Emphasis added; some brackets in original and footnote omitted).

Accordingly, there are two tests at issue in an HRS

§ 291E-61(a)(3) case: (1) a Breath Test, which measures a

subject's blood alcohol content (BAC) using the Intoxilyzer, and

(2) a calibration and diagnostic test (Accuracy Test), also

referred to as a "calibration test," which ensures the

Intoxilyzer is in proper working order when the Breath Test is
administered.

The requirements for the Accuracy Test are described in

HAR § 11-114-7, as follows:
(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;
(3) Reference samples shall be chosen so that their target
values are not less than 0.04 gm alcohol/210 liters
and not greater than 0.25 gm alcohol/210 liters;

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(4) Reference sample target values shall differ from each
other by at least 0.04 gm alcohol/210 liters;
(5) Reference sample test results which vary from the
target value by more than plus or minus 0.0l 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.

The State's first witness, Officer Kimo Keli#ipa#akaua

(Officer Keli#ipa#akaua), testified that: he is a "supervisor for

the Intoxilyzer 8000," which is a device that measures the BAC
for a subject and is "approved for use by the State Department of

Health;" his job is to "calibrate and run diagnostics" on the

Intoxilyzer; and he is licensed as an Intoxilyzer supervisor by

"the DUI coordinator of the Department of Health." Officer

Keli#ipa#akaua testified that he recognized the State's proposed

Exhibit 1 (Calibration Statement) as his sworn statement that he

conducted an Accuracy Test on the Intoxilyzer located at the Kona

Police Station on September 29, 2018, at 1:34 a.m. Dumford

argues that the District Court erred in admitting the Calibration

Statement into evidence because it is "incomplete" because it is

missing the data from the Accuracy Test that is necessary to
establish strict compliance with HAR § 11-114-7, which is

required to show that the Intoxilyzer was in proper working

order, and it is inadmissible hearsay.

In Davis, the prosecution attempted to satisfy the

foundational element that the Intoxilyzer was in proper working

order by introducing the sworn statements of an Intoxilyzer

supervisor, which included the data results of the most recent

Accuracy Test, and stated that "[t]he Intoxilyzer was operating

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accurately in compliance with [HAR § 11-114-7] on the date

indicated below, when I conducted the accuracy test recorded on

this document." Davis, 140 Hawai#i at 254, 400 P.3d at 455. The

prosecution sought to introduce the documents under the public

records hearsay exception in Hawai#i Rules of Evidence (HRE) Rule

803(b)(8), which excludes the following from hearsay:
Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth
. . . (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[.]

Id. at 257, 400 P.3d at 458 (quoting HRE Rule 803(b)(8)).

The supreme court held that, while the data reported

from the Accuracy Test could be introduced as a "matter[]

observed" under HRE Rule 803(b)(8)(B), the conclusion that the

Intoxilyzer "was operating accurately" was not itself a matter

observed, in that it was not a "direct observation," a "routine

recordation," or "recorded data" reflecting observations that are

concrete and simple; rather, it was an evaluative finding or

opinion. Id. at 260-61, 400 P.3d at 461-62. The supreme court

noted, however, that:
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). This additional evidence may come in a
variety 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 .

Id. at 264–65, 400 P.3d at 465–66 (footnote omitted).

Regarding the requirement of a showing of strict

compliance with HAR § 11-114-7, in State v. Ofa, 9 Haw. App. 130,

139, 828 P.2d 813, 818 (1992), this court reviewed a challenge to

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the introduction of Breath Test results into evidence on the

basis that there was no showing that the Accuracy Test was

performed in strict compliance with the then-applicable

administrative rules governing BAC testing. Specifically, the

applicable rules required, inter alia, that the Accuracy Test

utilize "two reference samples of known alcohol concentration at

a known temperature." Id. at 134, 828 P.2d at 816. The

defendant appealed arguing that the prosecution failed to show

the "known temperature" of the simulator solutions used. Id. at
139, 828 P.2d at 818. This court agreed and reversed the

conviction because, without evidence of the known temperature of

the reference samples, the prosecution failed to make a "showing

of strict compliance" with the applicable rule, thus no

foundation was laid to introduce the Breath Test results. Id. at

140, 828 P.2d at 818-19; see also Davis, 140 Hawai#i at 256, 400

P.3d at 457.

Here, the State introduced no data report(s) from the

Accuracy Test detailing any of the steps taken, readings, or

results, but only introduced the Calibration Statement, which

contains a copy of Officer Keli#ipa#akaua's Intoxilyzer supervisor

license and states that Officer Keli#ipa#akaua conducted an

Accuracy Test on September 29, 2018, and that the Intoxilyzer

"was properly maintained and in proper working order when [he]

conducted the accuracy test." Officer Keli#ipa#akaua did not

testify that he had a present recollection of conducting the

September 29, 2018 Accuracy Test and testified that he did not

know, for example, the target values of the test cannisters he

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used. Instead, he testified more generally as to what his

process is for running an Accuracy Test. In addition, Officer

Keli#ipa#akaua did not testify that the Calibration Statement was

a police record under which he had a duty to report by law.

We conclude that the State failed to lay a foundation

for a hearsay exception under HRE Rule 803(b)(8)(B) to introduce

the Calibration Statement, and even if a foundation was laid,

under Davis, the statement that the Intoxilyzer was "in proper

working order" is an evaluative opinion rather than a matter
observed, and thus, would not fall under the HRE Rule

803(b)(8)(B) exception. Thus, the District Court erred in

admitting the Calibration Statement into evidence. We further

conclude that the Calibration Statement is incomplete in that it

contains no data report(s) from the Accuracy Test showing any of

the steps taken. Therefore, even if it were admissible, it

contains no information that could make a showing of strict

compliance with HAR § 11-114-7.

The State argues that Officer Keli#ipa#akaua's testimony

sufficiently shows he conducted the Accuracy Test in strict

compliance with HAR § 11-114-7. However, Dumford contends no

such showing was made, as Officer Keli#ipa#akaua admitted that he

did not remember the "exact details" of conducting the Accuracy

Test and did "not remember the specific reading for each of the

test canisters" he used.

Davis and Ofa require a showing of strict compliance

with HAR § 11-114-7 as to the testing procedure used. Davis, 140

Hawai#i at 256, 400 P.3d at 457; Ofa, 9 Haw. App. at 139-140, 828

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P.2d at 818-19. HAR § 11-114-7 contains specific parameters for

test canister target values used in the Accuracy Test. See HAR §

11-114-7(a)(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[.]"). Without the data

reports from the Calibration Test, testimony from present memory

of the test canister readings, or some other evidence showing the

target values of the test canisters actually used, the State

failed to provide a basis for the District Court to find a
"showing of strict compliance" with HAR § 11-114-7. Davis, 140

Hawai#i at 256, 400 P.3d at 457.

Absent a showing of strict compliance with HAR § 11-

114-7, the District Court erred in finding that the State met the

foundational requirement of showing that the Intoxilyzer was in

proper working order. Without a proper foundation, Dumford's

Breath Test results were inadmissible. Absent the Breath Test

results, there is no other basis in the record to determine

Dumford's BAC, and thus, we conclude that there is no evidence of

an essential element of HRS § 291E-61(a)(3). For these reasons,

we reverse Dumford's conviction. See State v. Nakamitsu, 140

Hawai#i 157, 164, 398 P.3d 746, 753 (2017) (affirming this

court's reversal of the defendant's conviction for OVUII under

HRS § 291E-61(a)(3) because, without admissible BAC evidence,

there was insufficient evidence to support the conviction); Ofa,

9 Haw. App. at 141, 828 P.2d at 819-20 (reversing conviction on

basis of insufficiency of evidence at trial).

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In light of this conclusion, we need not reach

Dumford's other arguments.

For the reasons set forth above, the District Court's

September 20, 2019 Judgment is reversed.

DATED: Honolulu, Hawai#i, May 28, 2021.

On the briefs:
/s/ Lisa M. Ginoza
Taryn R. Tomasa, Chief Judge
Deputy Public Defender,
for Defendant-Appellant. /s/ Katherine G. Leonard
Associate Judge
Stephen L. Frye,
Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth
County of Hawai#i, Associate Judge
for Plaintiff-Appellee.

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