Friday, October 2, 2009

Manufacturer has Final say in Foundation for Laser Gun Readings

State v. Assaye (HSC September 30, 2009)

Background. Assaye was charged with excessive speeding (HRS § 291C-105(a)). At his bench trial, Officer Franks testified that with a laser gun he clocked Assaye driving at 90 m.p.h. in a 55 m.p.h. zone. Officer Franks testified that he had been certified to use the laser gun and was trained to use and test the gun. He also said that he conducted four tests on the laser gun to ensure its accuracy. Assaye objected to the foundation of the reading from the laser gun. The trial court overruled the objection. Assaye was found guilty, he appealed, and the ICA affirmed.

So Long Stoa: Manufacturer-Recommended Tests Necessary to Establish Foundation of the Laser Gun Reading. The HSC agreed with Assaye that the State was required to adduce evidence of manufacturer-recommended testing procedures before it could have been admitted at trial. In State v. Stoa, 112 Hawai'i 260, 265, 145 P.3d 803, 808 (App. 2006), the ICA examined the scientific accuracy of a laser gun and held that the laser technology was an accurate and reliable means of measuring speed. In doing so, the ICA also examined the foundational requirements of getting in the laser gun reading, which included the same tests used by Officer Franks.

But according to the HSC, Stoa is "obviously inconsistent" with State v. Manewa, 115 Hawai'i 343, 167 P.2d 336 (2007). In that case, an expert qualified to testify about drug analysis and identification could not testify that the electronic scale he routinely used was accurately calibrated. The Manewa court held that there must be "an established manufacturer's procedure that could be conducted by the user to ensure that the [scales] were in working order according to the manufacturer's specifications." Id. at 354, 167 P.3d at 347. The HSC overruled the foundation analysis in Stoa and held that laser guns, like the scale in Manewa, called for manufacturer-recommended testing procedures. Here, there was no evidence that Officer Frank's laser gun was tested according to manufacturer-recommended procedures.

Manufacturer-Recommended Training also Required. The HSC also extended Manewa to officer training and held that the nature and extent of an officer's training in the operation of the laser gun must also meet the requirements indicated by the manufacturer. See State v. Ito, 90 Hawai'i 225, 244, 978 P.2d 191, 210 (App. 1999). Officer Franks testified that he was certified to use the laser gun and that he was instructed in the testing and operating of the machine through a four-hour class taught by another officer. But this, according to the HSC, was insufficient foundation because it did not show that Officer Franks met the manufacturer's requirements for the operation and use of the laser gun.

Speed was the case. Because the precise speed from the laser gun was a necessary element to the offense of excessive speeding there was no proof beyond a reasonable doubt that Assaye committed the offense. The HSC reversed the conviction.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority that the State needed proof that the laser gun was tested by manufacturer-recommended procedures and that the officer training was also manufacturer-recommended. He wrote separately to note that Manewa "imposes the additional requirement" for the State to show that the device "had been properly calibrated by the manufacturer's service representatives[.]" Manewa, 115 Hawai'i at 354, 167 P.3d at 347. There was insufficient evidence, according to Justice Acoba, establishing that the laser gun in this case had been properly calibrated or turned in for maintenance to a service representative. This was yet another reason--at least for Justice Acoba--to reverse. Justice Acoba wrote for the HSC in Manewa.

A Hefty Burden? So when it comes to devices that are used to record things--be it weight or speed--the foundation requires two things: (1) the device was tested according to manufacturer-recommended procedures; and (2) the user of the device underwent manufacturer-recommended training. Without this foundation, the reading cannot come in. It raises interesting questions about devices and who makes them. There must certainly be a number of devices out there that have no such recommendations or training to operate. What then? Does that mean it that the reading from the device cannot come in at all? Or is that an instance where this foundation is not required? If it's the latter, then it would seem that the police want devices that have manufacturer recommendations. That matter, must be settled on another day.

So What Else is out There? We have seen two cases where this foundation is particularly important: here, in cases of excessive speeding where the precise speed is an essential element and in Manewa where the weight of the drugs was an essential element. What else is out there? It would seem to apply to breath, urine, and blood readings for OUI trials. It may also apply to probation revocation hearings where the basis for the probation violation is a dirty UA. Civil cases may not escape either. In fact, it would seem that whenever there is a device with a reading that constitutes an essential element to an offense or claim, the proponent of the reading has a Manewa-Assaye foundation to overcome.

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