Procedure and Instrument Used in BAC Tests Must be Approved by DUI Coordinator

By Benjamin Lowenthal -

State v. Werle (HSC November 3, 2009)

Background. Werle was charged with operating a vehicle under the influence of an intoxicant. (HRS § 291E-61(a)). At trial, the State's witnesses established that Werle was arrested and submitted to a blood test. The blood sample was drawn and taken to a lab. Jon Tsuchida, a lab technician, testified that he ran the blood through a machine at the lab known as the Abbot AxSYM. Tsuchida also testified about the "enzymatic method" which was used to test Werle's blood. Tsuchida testified that Werle's BAC was 0.370. Dr. Clifford Wong testified. The prosecutor asked Dr. Wong if the lab's testing procedures had been approved by the DOH, but withdrew the question after Werle objected.

The State admitted into evidence a letter from the DOH stating that the lab's license to conduct blood alcohol testing had been updated. The district court also admitted into evidence the DOH-issued license for the lab that was in effect at the time Werle's blood was tested. At some point in the trial, Werle orally moved to strike evidence based on insufficient foundation. The motion was denied. Werle also made a motion to acquit based on insufficient foundation, which was also denied. Werle was found guilty, convicted, and the ICA affirmed.

No Plain Error here. The HSC first held that the ICA erred in reviewing the appeal for plain error. Plain errors, explained the HSC, are "errors that were not brought to the attention of the trial court." See Hawai'i Rules of Penal Procedure Rule 52(b). According to the HSC, Werle preserved his foundational objection to the introduction of his BAC results in his motion to strike evidence and in his motion to acquit. The appeal, therefore, should not have been reviewed by the ICA for plain error alone.

The DOH and Drunk Drivers. The Department of Health regulates which chemical testing procedures may be used to determine a person's blood alcohol content in drunk driving cases. HRS § 321-161. The DOH director issues laboratories licenses to perform these tests for the police. HAR § 11-114-18. A lab can only get a license if it uses "alcohol testing procedures approved in writing by the DUI coordinator[.]" HAR § 11-114-18(b)(5).

General Foundational Requirements Abbreviated upon Proof of DUI-Coordinator-Approved BAC Testing Procedures and Instruments. "A fundamental rule of evidence is that before the result of a test made out of court may be introduced into evidence, a foundation must be laid showing that the test result can be relied on as a substantive fact." State v. Souza, 6 Haw. App. 554, 558, 732 P.2d 253, 256 (1987). A blood alcohol test is based on science. "Whether scientific evidence is reliable depends on three factors, the validity of the underlying principle, the validity of the technique applying that principle, and the proper application of the technique on the particular occasion." State v. Montalbo, 73 Haw. 130, 136, 828 P.2d 1274, 1279 (1992).

License Update Insufficient Proof of Approval. According to the HSC, the reliability requirement in Montalbo is met as a "short cut" when the State presents evidence that the DUI coordinator approved in writing the specific blood alcohol testing procedure and instrument. The HSC concluded that the letter approving of the lab's license was insufficient. According to the HSC, neither the letter nor the license established that the testing procedure or the testing instrument used in Werle's case were approved by the DUI coordinator. Furthermore, Dr. Wong never testified that the procedure and instrument had been approved by the DUI coordinator. The question was withdrawn by the prosecutor.

What kind of Proof of Approval is Needed? What if the prosecutor was able to elicit testimony from Dr. Wong that the testing procedures and instruments in his lab had been approved by the DOH or the DUI coordinator? Would there still be a foundational problem? A lab can only maintain a license if it uses "alcohol testing procedures approved in writing by the DUI coordinator." HAR § 11-114-18(b)(5). The rule specifically provides that the approval by the DUI coordinator must be in writing. Does this necessitate proof of the written approval? Perhaps not. The opinion suggested that had the State elicited testimony from Dr. Wong that his lab's procedures and instruments were approved by the DOH, the foundational requirement would have been met. But then again, that is not quite what HAR § 11-114-18(b) says. If written proof is needed, then Dr. Wong's testimony is insufficient. HRE Rule 1002 ("To prove the content of a writing . . ., the original writing . . . is required"). Of course the HSC did not delve into this issue and we will have to wait for another day.

Don't Look to Lowther. The HSC agreed with Werle that the ICA erred in analogizing his case to State v. Lowther, 7 Haw. App. 2, 740 P.2d 1017 (1987). The HSC also looked to an older case, State v. Tengan, 67 Haw. 451, 691 P.2d 365 (1984). According to the HSC, Tengan and Lowther "teach that when the prosecution proves that a testing procedure has been approved by the DUI coordinator, it relieves the prosecution of the burden of presenting expert testimony to establish the reliability of that procedure." In other words, it is the "short cut" discussed earlier. These cases, explained the HSC, are distinguishable from this one. The record in Tengan showed that the breath intoxilyzer had been approved by the DOH. Tengan, 67 Haw. at 461, 691 P.2d at 372. And Lowther "merely clarified" that the DOH was responsible for monitoring and approving of testing methods and instruments.

Without the "Short Cut," There was no Expert Testimony Showing that the BAC Testing was Reliable. The first Montalbo prong is whether the underlying scientific principle is valid. Here, Dr. Wong, with a doctorate in biochemistry and as the Toxicology Lab Director , would have been able to testify about the validity of the scientific principles at work in the procedure and instruments used in Werle's case. But the State relied on Tsuchida, the lab "alcohol analyst." The Alcohol analyst performs the BAC tests, uses the testing procedures approved by the DOH, and keeps records of the results. HAR § 11-114-20(a). The HSC concluded that Tsuchida is analogous to an "operator" of testing instruments under HAR § 11-114-10. Tsuchida, according to the HSC, was qualified to testify abut the procedures he followed and the test results, but he was not qualified to testify as an expert on the validity of the scientific principles at work. The district court, therefore, erroneously allowed Tsuchida to testify.

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