Extensive Testimony on Speedometer Tests Holds (Fitz)water

State v. Eid (HSC January 26, 2012)

Background. Hatem Eid was charged with excessive speeding. HRS § 291C-105(a)(1). At trial, the prosecution called Roy and Duane Ozaki as expert witnesses. The Ozakis owned and operated Roy's Automotive. They are licensed automotive mechanics and certified automobile technicians. Roy Ozaki testified that only he and Duane perform speed checks cars for HPD. At trial, Roy explained that to check the accuracy of the speed of a car, with a method called the speedometer dynamometer. He places the car on a bed of rollers. A cable connects the rollers to a master head with a speedometer. The car is started and rolls on the rollers, which causes the cable to give a reading to the master head. No computer software is involved. During this test, the speedometer in the vehicle is compared with the reading on the master head. Roy compares the reading at 10-mile-per-hour increments from 25 mph to 95 mph.

Roy further testified that in 2007, he noticed that the comparison readings were adequate up until 75 mph. After that, the car's speedometer reading was faster than the master head reading by up to 5 mph. Roy called the manufacturer of the master head in California about it, and turned in the machine in 2008. It was returned with a letter stating that before it was recalibrated, the manufacturer tested it and concluded it was in working order with a margin of error of two percent.

Roy wrote a speed check card for Officer Perez's vehicle. According to the card, the speed check was performed in July 2007--before it was turned into the manufacturer for re-calibration. The speed check card stated that there were no discrepancies at speeds up to 65 mph. Ultimately, the district court allowed the speed check card to be admitted. At trial, Officer Perez testified that he was pacing Eid on a street where the speed limit was 25 mph. According to Officer Perez, his speedometer on his 2004 Crown Victoria read 65 mph. Eid was found guilty. He appealed and the ICA vacated judgment and remanded with directions to enter finding of regular speeding. Chief Judge Nakamura dissented.

Establishing the Foundation of a Test Result. "[B]efore 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. Wallace, 80 Hawai'i 382, 407, 910 P.2d 695, 720 (1996). A test result is reliable when there is "a showing that the measuring instrument is in proper working order." Id. The HSC has held in the past that in order for an instrument to be in "proper working order," there must be some evidence that it was adequately calibrated through testimony of a service representative or some kind of business record of the manufacturer. State v. Manewa, 115 Hawai'i 343, 357, 167 P.3d 336, 350 (2007). Furthermore, before an out-of-court instrument result is admitted, the movant must also establish that the operator of the instrument "is qualified by training and experience to operate" the instrument. State v. Assaye, 121 Hawai'i 204, 215-16, 216 P.3d 1227, 1238-39 (2009).

That said, the foundational issue of a speed check card requires the prosecution to show "(1) how and when the speed check was performed, including whether it was performed in the manner specified by the manufacturer of the equipment used to perform the check, and (2) the identity and qualifications of the person performing the check, including whether that person had whatever training the manufacturer recommends in order to competently perform it." State v. Fitzwater, 122 Hawai'i 354, 376-77, 227 P.3d 520, 542-43 (2010).

Adequate Foundation that Machine in Proper Working Order. The HSC held that in this case, the Fitzwater foundation requirements had been met. In other words, "the State established that the speedometer dynamometer was in proper working order, and used by persons qualified to operate the device." The prosecution established Officer Perez testified he took his vehicle to Roy's Automotive for the test. Roy testified that the speedometer dynamometer is comprised of three components: the bed of rollers, the cable, and the master head. It is a strictly mechanical test. There is evidence that the instrument was in "proper working order." When Roy noticed a slight difference, he returned the master head to the manufacturer, which gave it an approval.

. . . and Operated by Qualified People. The HSC also held that Roy and Duane were qualified to operate the device. Roy's testimony that he had done several of these speed checks, and was an expert in automotive technology. This is sufficient foundation for the operation of the speedometer dynamometer.

So much for Manufacturer-Approved Qualifications? The HSC in Assaye made much ado about manufacturer-approved methods of calibrating a machine. When that came out, we raised the question of what would happen if there was no manufacturer-approved method. Here, it seems we may have found an answer: if there is no manufacturer-approved method, then any sufficiently qualified operator can use it properly. The HSC never specifically dispensed with the requirement from Assaye. Perhaps this means that if there is prima facie proof of

Justice Acoba's Concurrence. Justice Acoba agreed that there was an adequate foundation laid before the results of the speedometer were admitted at trial. He wrote separately to note that in Fitzwater, there was absolutely no evidence of the foundation for the accuracy of the officer's speedometer. He felt that it was unnecessary to delve into constitutional issues and even hearsay issues that were addressed in Fitzwater. This, wrote Justice Acoba, is the proper time to raise this sort of thing.