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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000374
                                                              13-FEB-2014
                                                              07:51 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


         STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                                    vs.

         JOHN N. AMIRAL, Petitioner/Defendant-Appellant.


                            SCWC-11-0000374

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-11-0000374; CASE NO. 1DTI-10-123021)

                           February 13, 2014

    ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J.,
             CONCURRING, WITH WHOM NAKAYAMA, J. JOINS

                OPINION OF THE COURT BY POLLACK, J.

          Petitioner/Defendant-Appellant John Amiral (Amiral)

seeks review of the Intermediate Court of Appeals’ (ICA) May 31,

2013 Judgment (ICA Judgment), filed pursuant to its April 30,

2013 Summary Disposition Order, affirming the Notice of Entry of

Judgment and/or Order and Plea/Judgment (Judgment) entered by the
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District Court of the First Circuit, #Ewa Division (district

court) on April 12, 2011.        For the reasons set forth herein, we

vacate the ICA Judgment and the district court Judgment and

remand the case to the district court for further proceedings.

                               I.   BACKGROUND

A.   Pre-Trial Proceedings

            On July 26, 2010, Honolulu Police Department (HPD)

Officer Zenas Ondayog issued a citation to Amiral for driving his

vehicle sixty-five miles per hour in an area where the posted

speed limit was fifty miles per hour.

            The State of Hawai#i (State) filed a Notice of Traffic

Infraction on July 28, 2010, charging Amiral with the offense of

Exceeding the Speed Limit in violation of Hawai#i Revised

Statutes (HRS) § 291C-102 (2007).1

            Amiral submitted via mail his Answer to Notice of

Traffic/Parking Infraction form (Answer), which was filed on




      1
            HRS § 291C-102 provides:

            Noncompliance with speed limit prohibited. (a) A person
            violates this section if the person drives:
                  (1) A motor vehicle at a speed greater than the maximum
                  speed limit other than provided in section 291C-105; or
                  (2) A motor vehicle at a speed less than the minimum
                  speed limit, where the maximum or minimum speed limit is
                  established by county ordinance or by official signs
                  placed by the director of transportation on highways
                  under the director's jurisdiction.
            (b) If the maximum speed limit is exceeded by more than ten miles
            per hour, a surcharge of $10 shall be imposed, in addition to any
            other penalties, and shall be deposited into the neurotrauma
            special fund.

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September 1, 2010.      In his Answer, Amiral denied the charge and

contested it by submission of a written statement.

            In his written statement, Amiral contended that Officer

Ondayog wrongfully issued a citation to him, as the Officer

failed to indicate on the citation that the “device/speedometer

was accurate, tested, [and] working properly.”2

            On October 7, 2010, the district court held a “Chambers

Review” regarding the charge against Amiral for Exceeding the

Speed Limit.3    Having reviewed Amiral’s written statement, the

district court ruled in favor of the State and issued its

Judgment and Notice of Entry of Judgment.          The district court

imposed a $75 fine, a $7 driver education assessment, a $10

neurotrauma surcharge, and a $40 administrative fee.

            Amiral filed a Request for Trial on November 8, 2010.

December 8, 2010, Amiral sent the State a Request for Disclosure,

requesting all documents related to Officer Ondayog’s Laser

Technology Incorporated (LTI) UltraLyte 20-20 laser gun

(UltraLyte), including the manual, maintenance logs, and Officer

Ondayog’s training in the use of the UltraLyte.

      2
             In his written statement, Amiral also contended that Officer
Ondayog: (1) erred in writing on the citation that Amiral was a “Navy
Captain” as his uniform reflected that he was a “Navy Lieutenant”; (2) failed
to properly identify himself on the citation as his name and identification
number were illegible; and (3) was not “professional” in his behavior. Amiral
also attached copies of his (1) military orders to attend an annual training
in Hawai#i on the date of the citation, (2) car rental invoice, (3) driving
abstract for the State of Virginia, and (4) citation.

      3
            The Judgment and Notice of Entry of Judgment indicated that Amiral
was not present at the October 7, 2010 hearing.

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            After receiving Amiral’s Request for Disclosure, the

State responded that the information requested by Amiral was

either not available to their office or not discoverable under

Hawai#i Rules of Penal Procedure (HRPP) Rule 16 (2010).

            Amiral filed a Motion to Compel arguing that the

documents he requested from the State were discoverable under

HRPP Rule 16 as material that “tends to negate the guilt of the

defendant as to the offense charged.”

            On January 11, 2010, the district court held a hearing

on Amiral’s Motion to Compel and ordered that the State allow

defense counsel to review and make one copy of the following:

(1) “Marksman instructor manual”; (2) “Marksman (trainee)

manual”; (3) “LTI UltraLyte operator (user) manual”; and (4) “LTI

Marksman operator (user) manual.”

B.   Trial Proceedings

            The district court held a bench trial on April 12,

2011.4   Prior to the commencement of trial the district court

addressed outstanding discovery matters.           Defense counsel argued

that although he had a copy of the UltraLyte manual from a prior

trial, the State failed to produce all of the other documents

that were requested by Amiral’s Motion to Compel.             The district

court found that since defense counsel had a copy of the manual


       4
            The district court allowed Amiral’s counsel to waive Amiral’s
presence because Amiral was stationed in the State of Virginia at the time of
trial.

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and Amiral’s motion had been ruled upon by the prior judge, it

was not necessary to address the discovery issue further and

proceeded with trial.

            Officer Ondayog, who testified for the State, was the

only witness.    At approximately 7:34 a.m., on July 26, 2010, he

was conducting speed enforcement of the westbound traffic along

Moanalua Freeway, where the posted speed limit was fifty miles

per hour.    At the same time, Amiral was driving his vehicle

westbound on Moanalua Freeway.       As Amiral’s vehicle approached

his vantage point, Officer Ondayog observed that Amiral’s vehicle

was traveling at a higher rate of speed than the other vehicles

in the flow of traffic and aimed his LTI UltraLyte at Amiral’s

vehicle.

            Officer Ondayog indicated that in January 2002 he was

trained and certified in the use of the UltraLyte by HPD Sergeant

Ryan Nishibun at the police academy.        On November 4, 2010,

Officer Ondayog attended a “refresher course” on the use of the

UltraLyte that was taught by HPD Officers Jeremy Franks and

Ikaika Lee.

            Both the training at the police academy and the

“refresher course” consisted of a four-hour “lecture class” on

the mechanics of the UltraLyte and four hours of “practice.”

Officer Ondayog recalled that there were thirty-two trainees in




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his class and none of the participants “failed” the course, as

the course did not include a written or practical examination.

          Officer Ondayog testified that he received a manual as

a part of his training.     He did not indicate whether the manual

that he had been given and used for comparison was a: 1)

“Marksman instructor manual”; (2) “Marksman (trainee) manual”;

(3) “LTI UltraLyte operator (user) manual”; or (4) “LTI Marksman

operator (user) manual.”

          The prosecutor asked Officer Ondayog if the

instructions in the manual specified how to test the UltraLyte to

verify that it was accurate and operating properly.           Defense

counsel objected on the basis of foundation and hearsay, arguing

that Officer Ondayog did not have personal knowledge of the

instructions in the manual.      The district court initially

sustained the objection, but later overruled the objection on the

basis that “this is foundation for foundation because the

training itself is foundation.”

          Over objection, Officer Ondayog testified that the

instructions in the manual specified the tests to ensure that the

UltraLyte is “working accurately and being operated properly,”

and his training in the use of the UltraLyte was based upon those

instructions in the manual.

          Officer Ondayog stated that he was trained to conduct

the following four tests in order to verify that the UltraLyte is


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working properly:    (1) the “self-test”; (2) the “display test”;

(3) the “scope alignment test”; and (4) the “delta distance

velocity test” (delta/distance test) or the “calibration test”

(collectively “four tests”)      The “self-test” confirms that the

lights on the display of the UltraLyte are working properly.                In

order to conduct the “self-test,” Officer Ondayog explained that

“you need to depress the trigger of the [UltraLyte].            Four

numerical 8’s will display.      If there is a numerical like 5-0 or

a 5-5, . . . the [display of the UltraLyte] is not working

accurately.”

            The “display test” verifies that the lights on the

display and the “test mode button” of the UltraLyte are working

properly.    The “display test” is conducted by pressing the “test

mode button” on the UltraLyte.       If a “TT” symbol and “four

numerical 8’s” appear on the display, then the “test mode button”

and the lights on the display are working properly.           Officer

Ondayog testified that he conducts the “display test” before and

after his shift.

            The “scope alignment test” confirms that “the red dot

within the center of the scope” and the UltraLyte laser are

aligned.    In order to conduct the “scope alignment test,” Officer

Ondayog aims and holds the trigger of his UltraLyte at a light

pole while panning the pole horizontally and vertically.            If the

scope and laser are aligned, the UltraLyte makes a high-pitched


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clicking sound, which is the same sound the device makes while it

is tracking a vehicle.      Officer Ondayog acknowledged that

“hearing different pitches is a subjective thing as opposed to if

a green light came on and it said [the UltraLyte was] working[.]”

Officer Ondayog testified that he conducts the “scope alignment

test” prior to his shift and after every traffic stop, and has

never had to adjust the scope of his UltraLyte.

            With respect to the delta/distance test, Officer

Ondayog utilizes two concrete pillars and a marked parking stall

on the “P1” level of the parking structure at the HPD main

station.    Officer Ondayog testified that he personally measured

the distances between the marked parking stall and the two

pillars and found that the distance to the nearest pillar was 130

feet and the distance to the furthest pillar was 155 feet.

Officer Ondayog explained that based on an internal calculation

of the two fixed distances, the UltraLyte should display “50” to

verify the accuracy of the device.

            Defense counsel then had Officer Ondayog read part of

the manual, which indicated that “[f]or uniformity [in conducting

the delta/distance test], [the fixed distance] should be 175 feet

from the shooting mark.”       Officer Ondayog acknowledged that the

“[pillars] were [constructed] to hold up the parking garage,”

rather than to conduct the delta/distance test on his UltraLyte.5
      5
            Officer Ondayog also testified that he had not performed the “time
over distance checks” as he was not instructed on those procedures during his
                                                                (continued...)

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            As to the calibration of his UltraLyte, Officer Ondayog

testified that had not sent his UltraLyte to the manufacturer for

maintenance since receiving the device in 2009.6 During this

period, he also had not performed any maintenance on the

Ultralyte other than to change the battery.           Officer Ondayog

explained, “I’m not an employee.        I don’t calibrate.       I just

conduct those four tests, that’s it.”

            Officer Ondayog acknowledged that the UltraLyte was an

electronic device that required software “to figure out what’s

going in to spit out some number on the display[,]” but he did

not know what type of software his UltraLyte required in order to

work properly or how the software works.          Officer Ondayog

testified that he had neither checked for the internal software

revision number nor did he know how to locate it.            Officer

Ondayog also had not sent his UltraLyte to the manufacturer for a

software upgrade.

            Officer Ondayog elaborated upon the usage and storage

of his UltraLyte.     On average, he stops more than forty cars a

day when he conducts speed enforcement.          Officer Ondayog

testified that he had measured the speed of “hundreds of

vehicles, maybe thousands[.]”       When he is not using his


      5
       (...continued)
training. With regard to the “instrument confidence check” on the UltraLyte,
Officer Ondayog could not recall if the manual contained any information as to
that procedure.
      6
            The device had previously been assigned to another officer.

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UltraLyte, the device is stored in the trunk of his duty

motorcycle.

          On the date of the incident, Officer Ondayog performed

the four tests on his UltraLyte before his shift, “in accordance

with LTI’s recommended procedures[.]”        Defense counsel objected

based on lack of foundation, and the district court overruled the

objection.    Officer Ondayog testified that based on the results

of the four tests he determined that the UltraLyte was in “good

working condition.”     Upon triggering his UltraLyte on Amiral’s

vehicle, the device indicated that Amiral’s vehicle was traveling

sixty-five miles per hour.      Although there were other vehicles in

the area, Officer Ondayog testified that if the UltraLyte

detected more than one vehicle then the device would display an

error sign.

          Officer Ondayog indicated that he operated the

UltraLyte in accordance with his training and the manufacturer’s

recommended procedures when he triggered the UltraLyte on

Amiral’s vehicle.   Again, defense counsel’s objection as to lack

of foundation was overruled.

          On cross-examination, Officer Ondayog testified that he

did not have personal knowledge of (1) “any tests that can be

conducted on the [UltraLyte] that the manufacturer recommends

that ensures it’s operating as intended[,]” (2) “how those tests

worked[,]” or (3) the “internal operation of the [UltraLyte and]

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how it works.”    Officer Ondayog’s knowledge of the four tests was

based on his reading of the manual and his training.

          Defense counsel then made an oral motion to strike

Officer Ondayog’s testimony on the basis that Officer Ondayog

lacked independent knowledge that the four tests were recommended

by the manufacturer to ensure that the UltraLyte was accurate and

working properly.    The district court allowed the State to

conduct its redirect examination of Officer Ondayog before ruling

on the defense’s motion.

          During redirect and re-cross examinations, Officer

Ondayog testified regarding the sound that the UltraLyte makes

when it is tracking a vehicle and the error sign the device

displays when more than one vehicle is detected.

          The State and defense rested their cases, without the

court having ruled on the motion to strike.

          The State argued in closing argument that Officer

Ondayog’s testimony satisfied evidentiary requirements under

State v. Assaye, 121 Hawai#i 204, 216 P.3d 1227 (2009).            The

State maintained that Officer Ondayog tested and operated the

UltraLyte according to the manufacturer’s recommended procedures

          The State maintained that Officer Ondayog was not

required to understand the “internal mechanisms and software” of

the UltraLyte.    Additionally, the State argued that the pillars

Officer Ondayog utilized to perform the delta/distance test were


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“reasonably close” to the manufacturer’s recommended distance of

175 feet.

            Thus, the State contended that it had proven by a

preponderance of the evidence that Amiral’s vehicle was traveling

sixty-five miles per hour in an area where the speed limit was

fifty miles per hour.

            The defense argued in response that Officer Ondayog did

not have personal knowledge that the four tests were recommended

by the manufacturer and that the training Officer Ondayog

received was inadequate, as there was no written or practical

examination.

            The defense also contended that the State did not

produce evidence that the UltraLyte was working properly based on

the following:     (1) the evidence of the results from the “self-

test” and the “display test” were irrelevant as they did not

verify that the UltraLyte was accurate; (2) Officer Ondayog’s

UltraLyte had never been serviced by the manufacturer for

software upgrades or maintenance since it was issued to him;7 (3)

the scope alignment test was arbitrary because it was based on

Officer Ondayog’s subjective hearing and was conducted using a


      7
             Defense counsel also argued that the State “need[s] to produce
other things [as to the maintenance of the UltraLyte] because apparently
they’re made once and they never need upkeep other than a battery. They never
need any maintenance.” Defense counsel observed that the UltraLyte software
was also suspect because “[it] apparently put some software engineers out of
business because whenever they designed this thing in the 90s nobody’s ever
had to improve on the software. There’s no updates. There’s no codes. There
is nothing.”

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random light pole that Officer Ondayog could not recall the

distance for; and (4) Officer Ondayog failed to perform the

delta/distance test according to the manufacturer’s recommended

distance.    Thus, the defense contended that the State did not

satisfy the evidentiary requirements under State v. Manewa, 115

Hawai#i 343, 167 P.3d 336 (2007) and Assaye, 121 Hawai#i 204, 216

P.3d 1227.

            The district court found that although Officer Ondayog

used a 155-foot marker to conduct the delta/distance test, it was

not a “fatal flaw,” as the distance recommended by the manual was

not a requirement and the UltraLyte would have to be accurate at

any distance.    The district court also found that Officer Ondayog

was qualified to operate his UltraLyte, and the State therefore

established a sufficient foundation as to the speed reading.

Accordingly, the district court denied the defense’s motion to

strike Officer Ondayog’s testimony and held that the State met

its burden of proof by a preponderance of the evidence that

Amiral’s vehicle was traveling sixty-five miles per hour in an

area where the speed limit was fifty miles per hour.

            The district court imposed a $75 assessment, a $40

administrative fee, a $7 application assessment, and a $10

neurotrauma fee.




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            On April 12, 2011, the district court entered its

Notice of Entry of Judgment and/or Order and Plea/Judgment

reflecting its disposition at trial.

            On May 3, 2011, Amiral filed a Notice of Appeal to the

ICA.

C.   Appellate Proceedings

            Amiral filed an Opening Brief with the ICA and raised

the following point of error on appeal:

            (a) The [district] court erred when it failed to sustain
                defendant counsel’s objection pertaining to lack of
                foundation and hearsay to the admission of the laser gun
                evidence.

            Amiral argued that the district court erred in failing

to sustain defense counsel’s foundation and hearsay objections to

the admission of the speed reading from Officer Ondayog’s

UltraLyte.     Amiral contended that the State did not provide

sufficient evidence demonstrating that Officer Ondayog’s

UltraLyte was working properly on the date of the citation.

Amiral maintained that the State failed to establish that Officer

Ondayog had personal knowledge as to whether the four tests were

recommended by the manufacturer or as to how the four tests

worked.    Amiral also argued that the delta/distance test was not

conducted according to the manufacturer’s recommendation.

            Additionally, Amiral argued that the State failed to

prove that Officer Ondayog was properly trained and certified in

the use of the UltraLyte as required under Assaye.             Amiral


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maintained that there was no evidence as to the “nature and

extent” of Officer Ondayog’s training or that the training

satisfied the manufacturer’s requirements.         Amiral also asserted

that the evidence in the record demonstrated that the training

did not include a written or practical examination to verify that

Officer Ondayog had acquired the required knowledge to correctly

operate his UltraLyte and conduct the four tests.

          Finally, Amiral contended that the State failed to

establish that Officer Ondayog’s UltraLyte was properly

calibrated as he did not have personal knowledge of the procedure

to calibrate the UltraLyte or knowledge that his UltraLyte was

calibrated by the manufacturer.       Accordingly, Amiral argued that

the speed reading should not have been admitted into evidence

under Manewa, as Officer Ondayog admitted that he had not

submitted his UltraLyte to the manufacturer for maintenance or

calibration since he had been assigned the device.

          In its Answering Brief, the State argued that the

district court did not abuse its discretion in finding that there

was sufficient foundation for the admission of the speed reading

into evidence.    The State maintained that Officer Ondayog’s

testimony demonstrated that (1) he was provided the UltraLyte

manual, and (2) his training in the use of the UltraLyte was

based on the manufacturer’s recommended procedures in the manual.

The State therefore contended that there was sufficient evidence


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demonstrating that Officer Ondayog’s training and experience

satisfied the manufacturer’s requirements.

          The ICA issued its Summary Disposition Order on April

30, 2013, which included a dissenting opinion by the Honorable

Chief Judge Craig H. Nakamura.       The majority opinion found that

Officer Ondayog’s testimony that he had conducted the four tests

on his UltraLyte in accordance with the manufacturer’s

recommended procedures established that he was sufficiently

trained in the use of the UltraLyte.        The majority also found

that Officer Ondayog’s testimony established that the nature and

extent of his training met the requirements indicated by the

manufacturer.

          The majority distinguished this case from State v.

Gonzalez, 128 Hawai#i 314, 288 P.3d 788 (2012), where the record

was silent as to what type of training was recommended by the

manufacturer.   128 Hawai#i at 327, 288 P3d at 801.         The majority

found that Officer Ondayog’s testimony was similar to the

testimony of the chemist in State v. Manewa, 115 Hawai#i 343, 167

P.3d 336 (2007), “who testified that he tested the device and

determined that ‘the parameters are within the manufacturer’s

specification[s.]’”     The majority further noted that the Assaye

court relied upon the chemist’s testimony in Manewa in stating

that “the ‘expert’s personal knowledge that was adduced through

his testimony at trial was sufficient to establish that the [gas


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chromatograph mass spectrometers] were in proper working

condition.’”

          In addition, the majority found that under Assaye

Officer Ondayog’s testimony of the manufacturer’s recommended

procedures, which according to the majority was based upon his

personal knowledge of the contents of the manual reflecting those

procedures, was not hearsay.       Furthermore, as to calibration, the

majority found that the evidence showing that the device had been

tested in accordance with the manufacturer’s procedures was

sufficient, and under the majority opinion in Assaye no further

showing of inspection or servicing by the manufacturer was

necessary.

          Consequently, the majority rejected Amiral’s contention

that the district court abused its discretion in admitting the

speed reading.

          The dissent cited to State v. Eid, 126 Hawai#i 430,

443-33, 272 P.3d 1197, 1210-11 (2012), which held that in order

to lay an adequate foundation that the speed reading was

sufficiently reliable to warrant admission, the prosecution was

required to show that (1) the UltraLyte was in proper working

order (the proper functioning prong), and (2) the officer who

used the UltraLyte was qualified to operate it (qualified

operator prong).    The dissent found that Officer Ondayog’s

testimony that he conducted the four tests set forth in the


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operating manual to determine whether the UltraLyte was in good

working order satisfied the proper functioning prong.            However,

the dissent stated that the State failed to distinguish between

the proper functioning prong and the qualified operator prong.

          As to the qualified operator prong, the dissent found

that the State only presented Officer Ondayog’s “conclusory

assertion that he was trained to operate the laser gun according

to the manufacturer’s recommended procedure.”          Inasmuch as Amiral

had adequately raised an objection based on lack of foundation

regarding Officer Ondayog’s competency to use his UltraLyte, the

dissent reasoned that the State was required under State v.

Gonzalez to introduce more specific evidence from which the

conclusion that Officer Ondayog was qualified to operate the

UltraLyte could be drawn.

          The dissent observed that, in addition to the

manufacturer’s training requirements, the State could have

provided evidence that (1) Officer Ondayog was tested and

demonstrated his ability to operate the UltraLyte to obtain

accurate speed readings, or (2) the manual contains specific

instructions on how to operate the UltraLyte and Officer Ondayog

demonstrated competence in following those instructions.

          The dissent concluded that without such evidence the

State did not satisfy the qualified operator prong and therefore

failed to lay an adequate foundation for the admission of the


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speed reading.      Without evidence of the speed reading, the

evidence was insufficient to prove that Amiral committed the

traffic infraction of Exceeding the Speed Limit.

            Pursuant to the majority opinion, the ICA affirmed the

district court Judgment.

D.   Application for Writ of Certiorari

            On June 4, 2013, Amiral filed an Application and

presented the following question:

            (a) Did the [ICA] err when it ruled that the [district] court did
                not err when it found that sufficient foundation had been laid
                for the laser gun reading?


            Amiral argues that the ICA erroneously upheld the

district court’s finding that a sufficient foundation had been

established for the admission of the speed reading into evidence.

            Amiral contends that the State failed to produce

evidence of the manufacturer’s training requirements to operate

the UltraLyte or that Officer Ondayog’s training met those

requirements as required by Gonzalez. Thus, Amiral argues, there

was no evidence as to the “nature and extent” of Officer

Ondayog’s training as required by Assaye.

            Amiral also argues that the State failed to prove that

Officer Ondayog’s UltraLyte was calibrated as there was no

evidence that he was trained or qualified to calibrate his

UltraLyte.     Amiral maintains that there was no evidence of the

manufacturer’s recommendations as to the calibration and



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maintenance of the UltraLyte.       Further, Amiral asserts that there

was no evidence demonstrating that the UltraLyte was accurate as

required by Manewa because the device had not been submitted to

the manufacturer for calibration or maintenance services since

Officer Ondayog was assigned the device.

          Lastly, Amiral argues that the State failed to produce

evidence that the UltraLyte was working properly on the date of

the citation.   Amiral maintains that Officer Ondayog did not have

personal knowledge as to whether the four tests were recommended

by the manufacturer or how the tests worked.          Therefore, Officer

Ondayog’s testimony was based upon inadmissible hearsay.

          The State did not file a Response.

                            II.    DISCUSSION

                                    A.

          Amiral contends that the ICA erred in affirming the

district court’s finding that Officer Ondayog was qualified to

operate his UltraLyte, as there was no evidence that his training

met the manufacturer’s requirements.

          In order to establish a sufficient foundation for the

admission of a speed reading from a laser gun, the prosecution is

required to produce evidence that the “nature and extent of an

officer’s training in the operation of the laser gun meets the

requirements indicated by the manufacturer.”          State v. Assaye,

121 Hawai#i 204, 215, 216 P.3d 1227, 1238 (2009).          “[T]o meet


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this burden the prosecution must establish both (1) the

requirements indicated by the manufacturer, and (2) the training

actually received by the operator of the laser gun.”            Gonzalez,

128 Hawai#i at 327, 288 P.3d at 801.

          In Gonzalez, the State provided evidence regarding the

extent of the training that the officer who operated the laser

gun had received.    Id.   The evidence demonstrated the officer

received four hours of training in 2003, and further training in

2009 and 2010.    Id.   However, the record was silent as to “what

type of training is recommended by the manufacturer.”            Id.    The

court in Gonzalez, therefore held that “[w]ithout a showing as to

the manufacturer’s recommendations, the court could not possibly

have determined whether the training received by [the officer]

met ‘the requirements indicated by the manufacturer.’”            Id.

          Similarly in this case, Officer Ondayog testified that

he received training in January 2002 and November 2010.            Both

courses consisted of a four-hour lecture class on the mechanics

and operation of the UltraLyte and four hours of practice.

Officer Ondayog also testified that his training “was based upon

those instructions” in the manual.        The ICA majority opinion held

that “Officer Ondayog’s testimony was sufficient to establish

that the nature and extent of Officer Ondayog’s training in the

operation of a laser gun meets the requirements indicated by the

manufacturer.”    The majority opinion differentiated this case


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from Gonzalez, stating that in Gonzalez “the record [was] silent

as to what type of training is recommended by the manufacturer.”

               However, as the ICA dissenting opinion notes, “Officer

Ondayog’s conclusory assertion that he was trained to operate the

laser gun according to the manufacturer’s recommended procedure”

is insufficient to demonstrate that he was qualified to operate

the laser gun.       As further noted by the dissent, Gonzalez

requires, in addition to proof of the “extent” of the officer’s

training, evidence of “what type of training is recommended by

the manufacturer.”       Gonzalez, 128 Hawai#i at 327, 288 P.3d at

801.       In this case, the evidence did not establish what type of

training the manufacturer recommended.

               Officer Ondayog’s testimony that the training he

received was consistent with what he read in the manual regarding

the manufacturer’s recommended procedures is insufficient under

the standard established by Gonzalez, for the following reasons.

               First, no evidence was presented showing that the

manual relied upon by Officer Ondayog to perform the four tests

actually set forth the manufacturer’s recommended training

requirements.8

       8
            It is unclear what “manual” Officer Ondayog was referring to when
he testified that the training he received was consistent with the recommended
procedures in the manual. The district court’s January 11, 2011 “Order
Regarding Production of the Laser Technology, Incorporated Manuals,” provides
that defense counsel “shall be allowed to review” and make a copy of the
“Marksman instructor manual (pages 1-13),” “Marksman (trainee) manual (pages
14-44),” “LTI Ultralyte operator (user) manual,” and “LTI Marksman operator
(user) manual.” It is also unclear what the differences are between the four
manuals listed in the order.

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            Although Officer Ondayog testified that his training

conformed with the manufacturer’s requirements because his

training conformed with the manual, the contents of the manual as

to those requirements were not established by the State.             Thus,

it is not possible to determine whether the manufacturer’s

recommendations were actually described in the manual, so that

conformance with the manual would be equivalent to conformance

with the manufacturer’s recommendations.

            Second, assuming that the manufacturer’s

recommendations were contained in the manual relied upon by

Officer Ondayog, his conclusory statement that the manual

conformed to the training he received did not describe the type

of training stated in the manual.

            Third, there was no other evidence to demonstrate that

an officer learning to perform the four tests described by

Officer Ondayog satisfies the manufacturer’s training

requirements.     Consequently, the officer’s description of the

four tests did not identify the type of training recommended by

the manufacturer.9

            Fourth, there is no indication in the record that the

instructors of the training courses Officer Ondayog attended were

actually certified by the manufacturer or had been trained by the

manufacturer.     Additionally, there was no evidence that the

      9
            Cross-examination demonstrated that Officer Ondayog was unfamiliar
with various aspects of the UltraLyte.

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training course itself was approved by the manufacturer or was

consistent with the manufacturer’s requirements.            Such evidence

together with the Officer’s learning to perform the four tests

could have established the type of training the manufacturer

recommended.10

            Based on the foregoing, the ICA majority erred in

holding that Officer Ondayog’s training met the manufacturer’s

requirements on the basis of his testimony that his training was

consistent with the instructions and recommendations he read in

the manual.    As recognized by the ICA dissent, Gonzalez requires

“the introduction of more specific evidence from which the

conclusions that the officer was qualified to operate the laser

gun could be drawn.”      Accordingly, the State failed to lay an

adequate foundation for the introduction of the laser gun

reading, and thus the trial court erred in admitting the speed

reading into evidence.

                                     B.

            Amiral argues that the ICA erroneously held that the

State established a sufficient foundation to admit the speed

reading into evidence because there was no evidence that Officer

Ondayog’s UltraLyte was properly calibrated. The ICA majority

      10
            The ICA’s dissent states that “there is more than one way to
establish the officer’s competency,” suggested that the State may prove that
an officer is qualified to operate a laser gun by producing evidence showing
that the officer was tested and demonstrated the ability to operate the laser
gun to obtain accurate results. There is no indication in the record that
Officer Ondayog had completed any type of proficiency test administered or
approved by the manufacturer regarding the proper use of the UltraLyte.

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held that under Assaye, the State was not required to produce

evidence that the UltraLyte had been inspected or serviced by the

manufacturer because Officer Ondayog conducted the four tests in

accordance with the procedures recommended by the manufacturer.

While we do not agree that Assaye is authority for the principle

for which it was cited, in light of our disposition of this case

we do not resolve this issue.11

                                     C.

            Amiral contends that the district court abused its

discretion by admitting Officer Ondayog’s testimony that his

UltraLyte was working properly because Officer Ondayog (1) relied

      11
            In State v. Wallace, this court held that the accuracy of an
electric balance used to weigh cocaine was not established, where the
operator, a forensic chemist, “lacked personal knowledge that the balance had
been correctly calibrated and merely assumed that the manufacturer’s service
representative had done so.” 80 Hawai#i 382, 412, 910 P.2d 695, 725 (1996).
In State v. Manewa, the court applied the Wallace analysis and held that the
reliability of an “analytical balance,” a scientific device that measures
weight, required proof that it was properly calibrated by a representative of
the manufacturer. 115 Hawai#i 343, 354, 167 P.3d 336, 347 (2007).
            In the context of laser guns, the Assaye court held that the
prosecution failed to establish a foundation for the admission of a speed
reading because there was no evidence showing that the four tests the officer
conducted on his laser gun “were recommended procedures by the manufacturer
for the purpose of showing that the laser gun was in fact operating
properly[.]” 121 Hawai#i 204, 217, 216 P.3d 1227, 1240 (2009). However, the
majority opinion in Assaye did not reach the issue of calibration as discussed
in Manewa, and therefore did not hold that evidence of calibration was not
required. Thus, the conclusion of the ICA’s majority opinion, that “[t]he
Assaye majority did not require any further showing of inspection and service
by the manufacturer,” is not dispositive.
            In addition, the concurrence in Assaye indicated that Manewa not
only requires that the State show that there is an accepted manufacturer’s
procedure for ensuring that the instrument is in proper working order, but
also that the instrument has been inspected and serviced as required by the
manufacturer. 121 Hawai#i at 217, 216 P.3d at 1240 (Acoba, J., concurring).
            Officer Ondayog initially testified that the delta/distance test
verified the “accuracy of the instrument, the calibration.” He later
testified, “I don’t calibrate. I just conduct those four tests, that’s it.”
As Officer Ondayog explained, “I’m not an [LTI] employee.” Consequently, the
record is unclear as to whether calibration or maintenance of the Ultralyte is
periodically necessary to assure its accuracy.

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on the instruction he received during his training and his

reading of the manual, and (2) lacked personal knowledge that the

four tests were recommended by the manufacturer or how the tests

worked.   Our disposition of this case as previously discussed

renders it unnecessary to address this issue.

                            III.   CONCLUSION

           For the foregoing reasons, we vacate the ICA Judgment

and the district court Judgment, and remand the case to the

district court for further proceedings.

Kevin O’Grady                          /s/ Simeon R. Acoba, Jr.
for petitioner
                                       /s/ Sabrina S. McKenna

                                       /s/ Richard W. Pollack




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