TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0001121; CASE
Phyllis J. Hironaka for petitioner
M. Anderson for respondent
McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J.,
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
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 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.
State of Hawai'i 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). At the
commencement of the bench trial,  the State orally arraigned
Davis only under HRS § 291E-61(a)(3) for operating or
assuming actual physical control 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.
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.
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. After 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.
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.
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 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/21OL BrAC." Next to each data entry is a time
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.
this pre-printed language are the date, Woo Kang's
signature, and his license number and its expiration date.
objected to Sworn Statements 1 and 2 being entered into
evidence based upon, inter alia: (1) lack of 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.
State contended that there was sufficient legal basis under
HRE Rule 803(b)(8) (1993 & Supp. 2002) for the 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 Hawai'i 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.
the defense's objection, the district court received into
evidence Sworn Statements 1 and 2. The district court, also
over objection, admitted into evidence the March 3, 2012
Sworn Statement of Intoxilyzer Operator (Operator Statement),
which indicated that the breath alcohol content measured by
the Intoxilyzer for Davis was .139 grams of alcohol per 210
liters of breath.
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.
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 the requirements of the business records
exception. 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.
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,
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). Accordingly, the ICA affirmed the district
court's Order and Notice of Entry of Order entered on
November 29, 2012.
STANDARDS OF REVIEW
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
Hawai'i 472, 477, 927 P.2d 1355, 1360 (1996) (quoting
Kealoha v. Cty. of Hawai'i, 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.
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. Davis maintains that because Sworn
Statements 1 and 2 were improperly admitted, evidence of his
breath alcohol content obtained from the Intoxilyzer was also
improperly received and thus there was insufficient evidence
to support his OVUII conviction.
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
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] 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.
Admissibility under Public Records Exception, HRE Rule
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.
Analysis of "Matters Observed, " HRE Rule
Rule 803(b)(8) sets forth the public records hearsay
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).
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
"matters observed by police officers and other law
enforcement personnel." Id.
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. Id.;
see also Addison M. Bowman, Hawaii Rules of
Evidence Manual § 8O3-3[D], at 8-44 (2016-2017
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 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[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
flevaluations' or 'interpretations' of . . .
events or transactions." (quoting
Weissenberger's Ohio Evidence § 803.105, at
409 (1996))) .
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 Hawai'i 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 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.
Comparison to "Factual Findings, " HRE Rule
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 counterpart have been interpreted by the
United States Supreme 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 Hawai'i
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 the Advisory Committee "surely"
intended that "factual findings" subsection would
allow for admission of "evaluative reports").
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 "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 ...