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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-29587
                                                               26-JAN-2012
                                                               08:20 AM



             IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                  ---o0o---


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

                                      vs.

             HATEM A. EID, Respondent/Defendant-Appellant.


                               NO. SCWC-29587

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (ICA No. 29587; HPD Traffic No. 1DTC-07-045030)

                              JANUARY 26, 2012

         RECKTENWALD, C.J., NAKAYAMA, DUFFY, AND MCKENNA, JJ.;
                 WITH ACOBA, J., CONCURRING SEPARATELY

                OPINION OF THE COURT BY RECKTENWALD, J.

             Hatem A. Eid was charged with excessive speeding in

violation of Hawai#i Revised Statutes (HRS) § 291C-105(a)(1)

(2007).1    The charge stemmed from an incident on September 19,


     1
             HRS § 291C-105 provides, in pertinent part:

                   Excessive speeding. (a) No person shall drive a motor
             vehicle at a speed exceeding:
                   (1)   The applicable state or county speed limit
                         by thirty miles per hour or more; or
                   (2)   Eighty miles per hour or more irrespective
                         of the applicable state or county speed
                         limit.
             (b)   For the purposes of this section, “the
                   applicable state or county speed limit” means:
                   (1)   The maximum speed limit established by
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2007, when Officer Benjamin Perez allegedly paced Eid’s car with

his own vehicle and concluded Eid was traveling 65 miles-per-hour

(mph) in a 25 mph zone.     Prior to that incident, Officer Perez

had “speed checks” conducted on his vehicle at Roy’s Kalihi

Automotive Center & Towing (Roy’s Automotive), on April 5, 2007

and July 23, 2007.    Those checks were intended to establish that

the speedometer was accurate.

          Prior to trial, Eid filed a motion in limine to exclude

any speed check or speedometer reading evidence on the ground

that the State would be unable to lay a sufficient foundation.

The District Court of the First Circuit2 held an extensive

pretrial hearing, which included testimony from the two mechanics

who owned the speed check equipment and performed the tests

pursuant to a contract with HPD.       After five days of testimony,

the district court denied Eid’s motion in limine.           At trial, the

district court admitted the speed check and speedometer reading

evidence over the objection of defense counsel.           The district

court then found Eid guilty of excessive speeding.


                      county ordinance;
                (2)   The maximum speed limit established by
                      official signs placed by the director of
                      transportation on highways under the
                      director’s jurisdiction; or
                (3)   The maximum speed limit established
                      pursuant to section 291C-104 by the
                      director of transportation or the counties
                      for school zones and construction areas in
                      their respective jurisdictions.
          (c)   Any person who violates this section shall be
                guilty of a petty misdemeanor . . . .

     2
          The Honorable David W. Lo presided.

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           On appeal, the Intermediate Court of Appeals concluded

that the district court erred in admitting the speed check and

speedometer reading evidence.       State v. Eid, No. 29587, 2011 WL

2308055, at *1 (App. June 9, 2011) (SDO).         The ICA determined

that the State did not meet the foundational requirements set

forth by State v. Fitzwater, 122 Hawai#i 354, 376-77, 227 P.3d

520, 542-43 (2010), because the State only established the

manufacturer of the “master head” component of the speed check

equipment and not the entire speed check testing assembly.             SDO

at *1.   The ICA remanded the case for further proceedings “for

consideration of whether the remaining evidence was sufficient to

convict Eid of the lesser included offense of Noncompliance with

Speed Limit.”   Id.   The State of Hawai#i timely sought review in

this court.

           The State raises one question in its application for a

writ of certiorari:     “Whether the ICA gravely erred by concluding

that there was insufficient foundation, as a matter of law, to

admit the speed reading obtained from the speedometer in Officer

Perez’s Ford Crown Victoria patrol car?”

           For the reasons set forth below, we conclude that the

State established a sufficient foundation to admit the speed

check evidence, and consequently, the speedometer reading.

Accordingly, we vacate the ICA’s judgment and remand to the ICA.

                             I.   Background

           The following factual background is taken from the

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record on appeal.

A.    Pretrial Motions

            On January 25, 2008, Eid filed a Motion to Compel

Discovery or in the Alternative, Motion to Dismiss for Violation

of Hawai#i Rules of Penal Procedure (HRPP) Rule 16(b) and (c)3

(motion to compel).4     Eid pointed to a number of items that the

State allegedly failed to produce in response to a discovery

request made by Eid on November 27, 2007.          Specifically, Eid

listed the following items in his motion to compel:
            (a)   HPD departmental policies and procedures for
                  conducting speeding citations;
            (b)   The HPD manual for speeding citations;
            (c)   The make and model of the car or motorcycle;
            (d)   The age of the car or motorcycle;
            (e)   The dates and description of repair work done on the
                  car or motorcycle during the period of any applicable
                  speedometer check;
            (f)   The age of each tire on the car or motorcycle and any


      3
            Although Eid alleged a violation of HRPP Rule 16(b) and (c), Eid
only asserted arguments under HRPP Rule 16(b) in his motion to compel. HRPP
Rule 16(b)(2) provides, in pertinent part:

            Upon written request of defense counsel and specific
            designation by defense counsel of material or information
            which would be discoverable if in the possession or control
            of the prosecutor and which is in the possession or control
            of other governmental personnel, the prosecutor shall use
            diligent good faith efforts to cause such material or
            information to be made available to defense counsel; and if
            the prosecutor’s efforts are unsuccessful the court shall
            issue suitable subpoenas or orders to cause such material or
            information to be made available to defense counsel.

      4
            This is the first document in the record on appeal, although it
appears that the district court held several prior hearings in which Eid was
orally charged and requested continuances for the purpose of filing a motion
to compel discovery.
            In addition, it should be noted that the district court’s denial
of Eid’s motion to compel is not at issue in the instant application, but is
discussed at some length for background purposes because the arguments raised
in that motion are related to the arguments raised in Eid’s motion in limine
regarding the admissibility of the speed check. As discussed infra, the
district court held a single hearing on Eid’s motion to compel and motion in
limine.

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                information regarding maintenance of the tires;
          (g)   The speed check card, including:
                i.    The name of the auto shop used;
                ii.   The name of the person who conducted the speed
                      check;
                iii. A description of the procedures used to test the
                      speedometer;
                iv.   Any other records regarding the speed check.
          (h)   The maintenance records for any vehicle alleged to
                have paced [Eid’s] speed for the period of any speed
                checks (in particular, the records relating to the
                tires and drive train of the vehicle) for one year
                prior to and one year after the date(s) of the alleged
                offense;
          (i)   Any certification from any government or non-
                governmental agency, including any
                speedometer/odometer check, done on any vehicle
                alleged to pace [Eid’s] speed;
          (j)   Any speed reading for [Eid’s] vehicle;
          (k)   The maintenance records, for one year prior and one
                year after the date(s) of any alleged offense(s), for
                any device used to calibrate the speedometer/odometer
                of any motor vehicle used to pace [Eid’s] motor
                vehicle;
          (l)   The police maintenance records for any other speed
                measuring device used in this case, for the year prior
                and one year after the dates of any alleged
                offense(s), done on any vehicle alleged to have paced
                [Eid’s] speed;
          (m)   The manufacturer’s operators and maintenance manuals
                for any other speed measuring device used in this
                case, for the year prior and one year after the dates
                of any alleged offense(s), done on any vehicle alleged
                to have paced [Eid’s] speed;
          (n)   The speed check device manufacturer’s established
                procedures for verifying and validating that the
                instrument was in proper working order;
          (o)   Written verification that said manufacturer’s
                established procedures were followed;
          (p)   Written verification that the speed check device or
                machine was in proper working order;
          (q)   Records of regular maintenance, servicing, upkeep,
                repair, modification and/or calibration of the speed
                check machine or device performed by the manufacturer
                (or the manufacturer’s duly trained and licensed
                representative, a year before and a year after the
                dates of any alleged offenses(s), as well as official
                maintenance, repair, modification, servicing, and/or
                calibration manuals for the device in question
                prepared by and/or relied upon by the manufacturer (or
                the manufacturer’s duly trained and licensed
                representative[)].

          Eid argued that “[a]s the accuracy of the pacing method

is contingent upon correct operating procedures employed by HPD,

all information on which the speed check is based and that

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pertain to provide [sic] information relating to the speed of all

vehicles involved in the incident are essential to [Eid’s] case.”

Eid argued that the items listed in his motion to compel must be

provided “in order to adequately prepare not only for trial, but

also for anticipated pretrial motions.”         Eid further argued that

the requested materials would “tend to negate [his] guilt[.]”

          The State argued in its opposition that the discovery

requested in Eid’s motion to compel was beyond the scope of HRPP

Rule 16(a) and (d).     Specifically, the State argued that because

this was not a felony case, and thus, discretionary discovery

applied, Eid “fail[ed] to demonstrate that the requested items

for training documents, records, and manuals [were] material and

reasonable[,]” as required by HRPP Rule 16(d).

          On February 29, 2008, Eid filed a Motion in Limine to

Preclude Evidence of Honolulu Police Officer’s Speed Check Card

and Testimony of any Speedometer Reading (motion in limine).

Specifically, Eid sought an in camera hearing regarding

admissibility and sought to exclude: (1) any speed check card or

testimony related to the contents of a speed check card performed

on any vehicle alleged to have paced Eid’s vehicle; and (2) the

speedometer reading from any officer’s vehicle that was alleged

to have paced Eid’s vehicle.       In support of his motion, Eid

argued: (1) a speed check does not fall within the business

records exception or the public records exception to the hearsay

rule; (2) admission of the speed check into evidence through

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testimony of an HPD officer would violate Eid’s constitutional

right of confrontation; (3) evidence adduced at the in camera

hearing would fail to establish the requisite foundation for

admission of the speed check cards and speedometer reading; and

(4) the accuracy of a speed check and a speedometer go to the

admissibility and not the weight of the evidence.            The State did

not file an opposition to Eid’s motion in limine.

B.    Pretrial Hearing

            A hearing on Eid’s motion to compel commenced on April

16, 2008 and continued over the course of five days.5            At the

outset, the parties stipulated to certain exhibits being admitted

into evidence for purposes of the hearing on the motion to

compel.6   The State presented the testimony of five witnesses:

Roy Ozaki (Roy), Duane Ozaki (Duane), Michelle Oki, Sergeant

Sherman Dowkin, and Officer Benjamin Perez.           The defense’s sole

witness was Marcus Ho.      The following relevant evidence was

adduced at the hearing.

      1.    Roy Ozaki’s Testimony

            Roy, the owner of Roy’s Automotive, and his son, Duane,

      5
            Eid’s case was heard with State v. Montalbo, 1DTC-07-045483, and
the State referred to the two cases as “test cases” for using a police
officer’s speedometer in the prosecution of an excessive speeding charge.

      6
            These exhibits included: State’s Exhibits 1-4 (photographs of the
equipment used during speed checks); State’s Exhibit 5 (Roy Ozaki’s CV);
State’s Exhibit 6 (letters from North Hollywood Speedometer and Clock);
State’s Exhibit 7 (Duane Ozaki’s CV); Defense Exhibit C (duplicates of the
letters from North Hollywood Speedometer and Clock); Defense Exhibit D (a copy
of Sergeant Sherman Dowkin’s July 21, 2007 speed check card); Defense’s
Exhibit E (Marcus Ho’s CV); and Defense Exhibit F (a copy of Officer Benjamin
Perez’s July 23, 2007 speed check card).

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testified as experts for the State.7         Both Roy and Duane are

licensed automotive mechanics and master certified automobile

technicians.    Roy testified that he and Duane are the only

persons who conduct speed checks for customers at Roy’s

Automotive, and they performed speed checks on the speedometer of

the vehicle used by Officer Perez in citing Eid.

            Roy testified that they use three items to conduct

speed checks: (1) a master head; (2) rollers; and (3) a cable

[hereinafter collectively called “speedometer dynamometer”].8

Roy testified that he obtained his speedometer dynamometer from

another mechanic, Jack Higa.        Higa gave Roy the speedometer

dynamometer on the condition that he put in a bid to do speed

checks for HPD.     Roy did, and he was awarded a one-year contract

with HPD from 2007-2008.       After receiving the speedometer

dynamometer, Roy did not immediately start checking HPD vehicles.

Rather, Roy spent two to three weeks conducting at least four to

six speed checks on his own vehicles prior to checking the first

HPD vehicle.    Roy explained that they “wanted to test [the

speedometer dynamometer] and make sure [they] knew what [they]

were doing and the results would be coming out the way [they

were] supposed to be coming out.”          Roy estimated that in 2007, he


      7
            The district court qualified Roy as an automotive vehicle mechanic
expert and a motor vehicle mechanic dealer expert and qualified Duane as an
expert in the fields of automotive mechanics and repair and automotive
technology.

      8
            As explained infra, Roy’s Automotive occasionally used a scanner,
in addition to the speedometer dynamometer, to perform speed checks.

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performed more than 1,200 speed checks for HPD.

            Roy testified that when he obtained the speedometer

dynamometer from Higa, he did not feel that he and Duane, “being

licensed technicians,” needed “special training” to learn how to

use the setup.     Roy explained that “for a mechanic, it’s pretty

straightforward.”9     Roy recounted that Higa told him, “eh, you

guys mechanics, you got two rolling wheels, the one cable, just

get the car on there and you measure everything out.             It’s as

simple as that, and you guys mechanics, you supposed to know what

you’re doing.”     Roy testified that he did not receive a manual

from Higa for the speedometer dynamometer, but added that he did

not feel that a manual was necessary.

            Roy testified that during a speed check, the vehicle is

placed on the rollers of the speedometer dynamometer and the car

is started, causing the wheels of the car to spin and move the

rollers.    A cable connects the rollers to the master head.            When

the car’s wheels turn the rollers, the cable that connects the

rollers to the master head spins.          The spinning cable causes the

needle on the master head display to move and designate a speed,

which is based on the speed at which the rollers are spinning.

Roy’s speedometer dynamometer is strictly mechanical and does not

involve any computer software.



      9
            As discussed infra, the defense’s expert witness, Ho, similarly
testified that he did not believe formal training is necessary to learn how to
use a speedometer dynamometer.

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           Roy further testified that during the speed check, the

speed reading from the master head is compared with the speed

shown on the car’s speedometer at ten mile-an-hour increments,

starting at 25 mph and ending at 95 mph.         When asked whether he

is “accurately recording the numbers on a speed check card[,]”

Roy affirmatively responded that he “write[s] down what [he]

see[s].”   Roy explained that the speed check card reflects the

readings of the car’s speedometer and the master head at various

speeds, including the extent to which the car’s speedometer

reading differs from the master head’s reading.

           Roy testified that in February or March of 2007, he

noticed that comparison readings from the master head and the

speedometer were “okay” up to 75 mph, but the car’s speedometer

was “showing typically two or three [mph] fast at eighty-five;

four or five [mph] fast at ninety-five.”         Roy called Hartmut

Behrens, of North Hollywood Speedometer, and notified Behrens of

the master head readings.      North Hollywood Speedometer was the

manufacturer of the master head, and Roy believed that Behrens

was the owner of North Hollywood Speedometer.          Roy testified that

he explained to Behrens how he was working his speedometer

dynamometer and the types of cars being tested.           Behrens told

him, “you don’t have to send it back, nothing’s wrong, you’ve

fallen close to that two percent [margin of error] and from what

you’re telling me, it’s okay[.]”

           Roy testified that he sent the master head to North

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Hollywood Speedometer in January 2008 to “get it checked out.”

Although Roy only sent the master head, he conveyed the necessary

measurements of his rollers to North Hollywood Speedometer.10               In

response to Roy’s inquiry, North Hollywood Speedometer sent two

letters to Roy’s Automotive signed by Behrens.           In the

January 16, 2008 letter, Behrens stated that the master head had

been overhauled and calibrated to the “specifications of the

speedometer roller device” used by Roy’s Automotive.             Behrens

indicated in the second letter11 that the master head was checked

for accuracy before it was overhauled by North Hollywood

Speedometer, with the following results:

            MPH Readout at:                Masterhead indicated
                 30                                  31
                 60                                  62
                 80                                  82
                 90                                  93

            The second letter further reported that “[b]esides the

damage to the outside casing and lens we found the instrument to

be in working condition.”       Below the results, the letter

indicated that “[c]onsidering a [plus or minus two-percent]

accuracy tolerance on the Masterhead[,] the readout is considered

to be accurate.”     As noted supra, the parties stipulated to both


      10
            Roy testified that North Hollywood Speedometer has a “similar
setup” as his shop based upon his correspondence with Behrens. Roy further
testified that he did not know who manufactured the rollers or the cable on
his setup, but he indicated that sometime in 2007 he replaced the original
cable he received with one made by Higa.

      11
            Roy testified that even though the second letter was dated
“January 29, 2009,” the “2009” was a typographical error and should have read
“2008.”

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letters being admitted into evidence for the purpose of the

pretrial hearing.

            The July 23, 2007 speed check card prepared by Roy’s

Automotive for Officer Perez’s vehicle was also admitted into

evidence by stipulation.       A notation on the speed check card

indicated that the speed check was performed through the use of

the speedometer dynamometer and a “snap on scanner.”12            The

July 23, 2007 speed check card showed that Officer Perez’s

speedometer was tested and found to have no discrepancies with

the speedometer dynamometer at speeds up to 65 mph.            At higher

speeds, Officer Perez’s speedometer was registering: 1 mile slow

at 75 mph; 2 miles slow at 85 mph; 3 miles slow at 95 mph; 3

miles slow at 105 mph; and 3 miles slow at 110 mph.            The initials

on the speed check card indicated that Roy performed the speed

check.

            In addition, Roy testified about how a vehicle’s tire

size and tire pressure can affect a vehicle’s speed, as well as



      12
            In addition to using the master head to perform speed checks, Roy
testified that for a brief period in July 2007, Roy’s Automotive used devices
called scanners to test HPD speedometers at speeds faster than 100 mph.
According to Roy, a scanner is a “diagnostic tool” that is attached to the
vehicle’s on-board computer that produces speedometer readings. The scanner
reads data sent to a car’s computer system, including the data used to produce
the speed reading shown on the car’s speedometer. When a scanner is used,
three things are looked at, “[t]he speedometer head of the vehicle, the master
head and the scanner.”
            For speed checks in which a scanner was used, Roy testified that
they would place the car on the speedometer dynamometer and also connect the
scanner. Roy or Duane would look at the readings from both the master head of
the speedometer dynamometer and the scanner in testing the car’s speedometer
up to 100 mph. When the speed reached 100 mph, the master head of the
speedometer dynamometer would be disconnected and only the scanner used.

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their impact on the results of a speed check.

     2.   Duane Ozaki’s Testimony

          Duane’s testimony was substantially similar to Roy’s.

Duane testified that the purpose of the speedometer dynamometer

is “to check speedometer accuracy.”        Duane testified that during

a speed check, if there are discrepancies between the readings of

the master head and the vehicle’s speedometer, he will slow down

the vehicle and then accelerate it again to confirm the readings.

To Duane’s knowledge, the rollers and cable were never checked by

the manufacturers while in their possession.

          On cross-examination, Duane conceded that all the

components of the speedometer dynamometer needed to be working

properly in order to get accurate readings.          Duane also responded

to extensive questions about how tire size and tire pressure

could affect speedometer readings.

     3.   Marcus Ho’s Testimony

          The district court qualified Eid’s expert witness, Ho,

as an expert on the mechanics of a dynamometer.           Ho testified

that he did not have any formal training in auto mechanics, but

he did not believe that formal training was necessary to operate

a speedometer dynamometer.      Rather, Ho believed that a person

could “gain knowledge about the [speedometer] dynamometer by

using it” “a couple [of] times.”       Ho testified that he owned and

operated a chassis speedometer dynamometer, which operated under



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the same mechanical principles as Roy’s Automotive’s speedometer

dynamometer, but differed in that it was not purely mechanical.

Instead, Ho’s produced a “digital readout[.]”          The manufacturer

of Ho’s speedometer dynamometer was Dyno Jet.          According to Ho, a

speedometer dynamometer can measure horsepower, torque, and/or

speed, depending on how it is set up.        Ho testified at length

about a number of factors that could affect the accuracy of the

test, including the stretching or twisting of the cable, tire

size, and tire pressure.      Ho opined that there were “more

variables than real-world conditions than on [Roy Automotive’s

speedometer dynamometer].”      When defense counsel asked whether

all three components of the speedometer dynamometer would need to

be calibrated properly to give an accurate reading, Ho responded

affirmatively.

     4.   Officer Benjamin Perez’s Testimony

          Officer Perez did not testify at the pretrial hearing.

Rather, the defense and State stipulated to various facts

relating to Officer Perez’s purchase and maintenance of his

subsidized vehicle.     The parties did not stipulate to any facts

related to the speed check, apparently because one of Officer

Perez’s speed check cards was already in evidence for the purpose

of the hearing.

     5.   Michelle Oki’s Testimony

          Oki, a supervisor for the HPD Vehicle Maintenance



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Section, testified that Roy was the vendor that HPD used for

speed checks, and no one at HPD calibrated speedometers.            Oki

testified that she has been working for HPD for almost 20 years

in various positions, including a vehicle dispatch service

writer, an automotive mechanic, and an automotive repair

supervisor, her current position.         Oki testified that based on

her experience it was “very rare [to] have speedometer problems”

in the patrol cars.     HPD had procedures in place when a problem

with a speedometer occurred.       Oki further testified that in the

last six years, a broken speedometer occurred “[a]bout nine

times.”

           Additionally, Oki testified about the potential impact

on her ability to perform her job if the court compelled her to

provide some of the items requested by Eid’s counsel in every

traffic case.

     6.    Sergeant Sherman Dowkin’s Testimony

           Sergeant Dowkin, Traffic Enforcement Supervisor for the

windward side of Oahu, testified that he drove a subsidized

police vehicle, which he described as “a vehicle that the

officers can select from a list of approved vehicles from a

police department.”

           Sergeant Dowkin also provided testimony on the “pace-

clock method” that officers use to measure the speed of another

vehicle.   He described it as following a vehicle for ideally

“two-tenths of a mile[,]” while “attempting to maintain a steady

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distance between the target vehicle and [the officer’s] vehicle,”

and then using the officer’s speedometer to measure “the speed of

the target vehicle[.]”     Sergeant Dowkin was not aware of any

manual “on how to do pace clocks[.]”        He testified that he was

aware of “HPD departmental policies and procedures for conducting

speeding citations[,]” but that there were policies against

disseminating that information to the public.

          After hearing five days of testimony and considering

summation memoranda submitted by both parties, the district court

found that:
                [T]he defendants’ expert, Marcus Ho, is an individual
          with experience in auto racing with construction and
          modification of cars for racing purposes. That Mr. Ho’s
          Dynojet is utilized more for purposes of determining
          horsepower, drive training, engine performance issues,
          rather than for determining speed.
                The [c]ourt will further find that Mr. Ho’s testimony
          was neither persuasive nor convincing in establishing that
          the requested discovery documents are reasonable and
          material, and as such, this [c]ourt will deny the
          defendants’ motion to compel discovery.
                In terms of relevant information for pace cases, this
          [c]ourt will allow the following information, not by
          pretrial discovery, but rather upon testimony elicited by
          either direct or cross-examination of the citing officer.
          First being the applicable speed check card covering the
          date of citation, any repairs to the speedometer made since
          the date of the applicable speed check and any change in
          tire size made since the date of the applicable speed check.
                In light of this [c]ourt’s ruling, the [c]ourt finds
          that there is no need for a hearing on the defendants’
          motion in limine, and hereby deny [sic] same, and that these
          matters are to be set for trial forthwith.

(Emphasis added).

          Eid filed a motion for clarification on September 23,

2008, requesting that “the court clarify whether, in denying the

[m]otion in [l]imine, it relied upon the evidence adduced during

the hearing on the [m]otion to [c]ompel [d]iscovery on April 16,

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April 30, May 14, June 4, and June 18, 2008[.]”            At a October 3,

2008 hearing, the district court clarified that “the court’s

denial of the motion in limine [was] based on the same ruling and

reasoning [the] court articulated for its denial of [Eid’s]

motion to compel.”

C.   Bench Trial

           On December 19, 2008, a one-day bench trial was held.

At the outset, the parties stipulated that it was “proper for the

court to consider the entirety of the hearings as to the motion

to compel for its ruling on the motion in limine.”            Additionally,

the parties stipulated that the three transcripts of the

testimony of Roy and Duane would be entered into evidence.              After

going over a colloquy with Eid, and informing him of, inter alia,

his right to confront and cross-examine Roy and Duane, the

district court approved the stipulation and entered the three

transcripts into evidence.

           The State then proceeded to call its first witness,

Mark Kikuchi, an employee of the City and County of Honolulu,

Department of Transportation Services.          Kikuchi testified that

not all City and County streets and roads are listed within the

speed schedules.     Kikuchi further testified that Oneawa Street in

Kailua is not listed on the speed schedule, but the speed limit

for Oneawa Street is “25 [mph]” based on the default speed limit




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set by the Revised Ordinances of Honolulu (ROH).13           Kikuchi also

stated that there were signs posted on Oneawa Street that

indicated the speed limit of 25 miles per hour.            Over defense

counsel’s objections, the court eventually took judicial notice

“that the default speed limit for Oneawa Street is 25 miles per

hour” based on the default speed limit in ROH § 15-7.2(b)(1).

            The State then called Officer Perez as its next and

final witness.     Officer Perez testified about the maintenance of

his subsidized vehicle, a 2004 Ford Crown Victoria, which he was

driving on September 19, 2007.        Pursuant to HPD requirements,

Officer Perez had a speed check conducted on his vehicle several

times, because speed checks are good for “one year from the date

of the speed check.”      Officer Perez testified that “speed checks

are conducted to ensure the accuracy of the individual vehicle

that is being checked,” and that they are used “[t]o make sure

that [his] speedometer is accurate when [he is] pace clocking

other vehicles.”     He further testified that “speed checks [are]

conducted on [his] vehicle in the course of regularly maintaining

[his] subsidized HPD vehicle[.]”


      13
            It appears that Kikuchi was referring to ROH § 15-7.2(b)(1)
(1983), which provides:

                  No person shall drive a vehicle on a public highway or
            street at a speed in excess of the following speed limit
            zones established or hereafter established therefor by
            ordinance of the city council.
            . . . .
            (b)   Twenty-five miles per hour.
                  (1)   Any street or highway within the City and County
                        of Honolulu where a speed limit has not been
                        otherwise established.

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          Officer Perez testified that he had two speed checks

that covered September 19, 2007, the day he issued the citation

to Eid.   Specifically, Officer Perez had a speed check conducted

on his vehicle on April 5, 2007, the results of which were

“written on a card with Roy’s letterhead on it.”           Officer Perez

explained that he personally took his car down to Roy’s

Automotive and waited for 20 to 25 minutes while Roy performed

the speed check.    When the State attempted to move the April 5,

2007 speed check card into evidence, defense counsel objected,

arguing that “[it was] hearsay and it [did] not fall into the

business records exception because the speed check card [was]

being used purposely or solely in anticipation of litigation in

issuing citations.”     Defense counsel further objected “pursuant

to all the reasons included in [Eid’s] motion in limine.”

          The State argued that it was “simply trying to lay [a]

foundation under [Hawai#i Rules of Evidence] HRE Rule 104.”

Alternatively, the State argued that it had “laid a sufficient

foundation for . . . the admission of the speed check card as a

regularly conducted activity under HRE [R]ule 803(b)(6).”             The

court adopted the State’s arguments and overruled defense

counsel’s objections.     Accordingly, a copy of the speed check

card was admitted into evidence as State’s Exhibit 1.            The State

proceeded to ask Officer Perez about his understanding of the

April 5, 2007 speed check card.       Officer Perez explained that Roy

checked his speedometer at given speeds, and the results showed

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that when tested at 65 mph, his “vehicle[’s] speedometer was also

reading 65 [mph.]”

          Officer Perez testified that he also had a speed check

performed on July 23, 2007 at Roy’s Automotive.           The court also

admitted a copy of the July 23, 2007 speed check card into

evidence over the same defense objections.         Officer Perez

testified that the July 23, 2007 speed check card also showed

that when tested at 65 mph, his speedometer was reading 65 mph.

When asked whether this “show[ed] that [his] vehicle[’s]

speedometer [was] working properly[,]” Officer Perez answered

affirmatively.    Officer Perez explained that he had two speed

check cards because the April 5, 2007 speed check was conducted

using only the speedometer dynamometer, while the July 23, 2007

speed check was conducted using a scanner and the dynamometer.

          Officer Perez further testified to the events leading

to Eid’s citation for excessive speeding.         Officer Perez

testified that on September 19, 2007, at 1:20 a.m., he was on

duty and noticed Eid on Mokapu Boulevard turning onto Oneawa

Street.   Traveling behind Eid’s car, Officer Perez observed that

Eid started to accelerate in the area of Kaha Street “faster than

what appeared to be 25 [mph].”       Officer Perez testified that he

then pace-clocked Eid’s vehicle for over two-tenths of a mile.

Over defense counsel’s objection,14 Officer Perez testified that



     14
          The basis for the objection was “indiscernible.”

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during the pace-clock, his speedometer read “65 [mph].”            Officer

Perez further testified that as he was pacing Eid, they passed at

least three signs that indicated a speed limit of 25 miles per

hour.    Officer Perez then stopped Eid’s vehicle and issued Eid a

citation for traveling 65 mph in a 25 mph zone.

            On cross-examination, defense counsel questioned

Officer Perez about the two speed check cards.          Specifically,

defense counsel pointed to the fact that “in April 2007 [Officer

Perez’s] speedometer was reading five miles fast at 95 miles an

hour,” while “three months later, in July of 2007 [Officer

Perez’s] speedometer was reading three miles slow at 95 miles an

hour[.]”    Officer Perez testified that he was not bothered by

this discrepancy, because the differences were explained to him

and “made sense[.]”     Officer Perez further testified that he had

no opinion as to whether one card was more accurate than the

other.    At the conclusion of Officer Perez’s testimony, the State

rested.

            The defense then moved for judgment of acquittal,

arguing that the “State [had] failed to make a prima facie case

as to each and every material element of the offense charged,

specifically, [] the establishment of the speed limit zone.”               The

district court denied Eid’s motion for judgment of acquittal.

            Eid chose not to testify.      The parties stipulated that

Ho would not be called as a witness in the defense’s case in

chief, but the testimony of Ho from the hearing on the motion to

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compel would be received into evidence.          After a colloquy with

Eid, the district court accepted the stipulation, and the defense

rested.

            Both the State and the defense waived closing

arguments.    Thereafter, the court ruled in relevant part as

follows:
            Based on the evidence presented at this trial today as well
            as taking into consideration the testimony by way of
            stipulation, the exhibits presented and the arguments made,
            the representation made by counsel throughout the trial,
            . . . the State has presented convincing evidence beyond a
            reasonable doubt that the defendant was accurately paced by
            Officer Perez for three-tenths of a mile at 65 [mph] and
            that his speedometer indicating on the –- both speed checks
            were accurate despite the fact that there were discrepancy
            at higher rates of speed. The court is satisfied that the
            State has proven that the defendant was travelling [sic] in
            the -- in the pace clock distance at 65 [mph] in a 25 [mph]
            zone, and as such, will find [Eid] guilty.

            The court entered judgment the same day, sentencing Eid

to pay a $500 fine, a $30 criminal injuries fund fee, a $7 driver

education assessment, a $75 driver education assessment, and a

$25 neurotrauma fee.      Additionally, the court ordered Eid to

complete a driver’s education improvement course and perform 36

hours of community service.       Lastly, the court suspended Eid’s

license for 30 days.      The court granted defense counsel’s request

to stay the sentence pending appeal.

D.    ICA Appeal

            On January 13, 2009, Eid filed his Notice of Appeal.15



      15
            Note that the Notice of Appeal and ICA briefs submitted by the
parties in this case predated Fitzwater, which this court decided on March 3,
2010.

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In his Opening Brief, Eid argued that the district court abused

its discretion:    (1) in denying his motion to compel; and (2) in

denying his motion in limine to preclude the evidence of Officer

Perez’s speed check card and speedometer reading.           Regarding the

denial of his motion to compel, Eid contended that “the items

requested were material and the request was reasonable[,]” and

thus, pursuant to HRPP Rule 16(b)(vii) and (d), the district

court abused its discretion in denying the motion.           As for the

denial of his motion in limine, Eid contended that an

insufficient foundation was laid to admit evidence related to the

alleged speedometer reading.       Specifically, Eid asserted that

“the State failed to adduce the requisite foundation that the

speedometer could be relied upon as substantive fact and that it

was in proper working order.”

          In its Answering Brief, the State argued that much of

the information requested was disclosed at the hearing on the

motion to compel and any further discovery would amount to an

“open-ended fishing expedition.”       Additionally, the State argued

that Eid failed to show that discovery of certain requested items

was material and reasonable as required by HRPP Rule 16(d).                As

for the motion in limine, the State contended that Officer

Perez’s speedometer was calibrated by Roy’s Automotive using

Roy’s speedometer dynamometer.       Evidence adduced at the hearing

indicated that “the speedometer in Officer Perez’s Crown

[Victoria] was accurate at 25, 35, 45, 55, and 65.”           Given the

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fact that Eid was cited for “going 40 mph over the applicable

speed limit,” the State argued that there was room for a 10 mph

margin of error and that nothing in the record indicated that any

potential error amounted to that.

     1.     The ICA’s Lead Opinion

            The ICA issued its SDO on June 9, 2011.         The ICA’s lead

opinion held that “[t]here was insufficient evidence presented to

satisfy the foundational requirements of [Fitzwater] for

admissibility of the speed check card, and consequently, the

speedometer reading in this case.”        SDO at *1 (internal citation

omitted).    The lead opinion noted that “the State failed to prove

‘the manufacturer of the equipment used to perform the check[,]’

insofar as only the manufacturer of the ‘master head’ and not the

entire speed check testing assembly referred to as ‘the

dynamometer,’ was established.”       Id.   Accordingly, the lead

opinion held that “it was error to deny Eid’s motion in limine to

exclude evidence of the speed check card and speedometer

reading[,]” and concluded that “there was insufficient evidence

supporting [Eid’s] conviction for Excessive Speeding and that

conviction must be reversed.”       Id.   As a result, the ICA lead

opinion found it unnecessary to address Eid’s point of error

concerning discovery, and remanded the case to the district court

for consideration of whether the remaining evidence was

sufficient to convict Eid of the lesser included offense of



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Noncompliance with Speed Limit.         Id.

      2.    The ICA Dissent

            In his dissent, Chief Judge Nakamura disagreed with the

majority’s reading of Fitzwater.         Chief Judge Nakamura noted that

on its face, Fitzwater required evidence that the speed check was

“performed in the manner specified by the manufacturer of the

equipment used to perform the check.”          SDO Dissent at *5.       Chief

Judge Nakamura contended that the foundational requirements

established in Fitzwater “must be viewed in the context of the

assumptions the court was required to make due to the lack of

information about the kind of test performed.”            Id. at *6.     Thus,

he did not “read Fitzwater as imposing an inflexible rule that,

regardless of whether the court’s assumptions about speed checks

are true, the only way to establish the foundational requirements

for admission of speed check results and speedometer readings is

by reference to procedures and training established by the

manufacturer.”      Id.   Based on the testimony and evidence

presented at the pretrial hearing, Chief Judge Nakamura concluded

that the State was “able to lay an adequate foundation for the

admission of Officer Perez’s speedometer reading[,]” and “the

admission of the July 23, 2007, speed check evidence.”              Id. at

*7.




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                        II.    Standards of Review

A.   Motion in Limine

            The granting or denying of a motion in limine is reviewed
            for abuse of discretion. The denial of a motion in limine,
            in itself, is not reversible error. The harm, if any,
            occurs when the evidence is improperly admitted at trial.
            Thus, even if the trial court abused its discretion in
            denying a party’s motion, the real test is not in the
            disposition of the motion but the admission of evidence at
            trial.

Miyamoto v. Lum, 104 Hawai#i 1, 7, 84 P.3d 509, 515 (2004)

(internal quotation marks, citations, ellipses, and brackets

omitted).

B.   Admissibility of Evidence

            When a question arises regarding the necessary foundation
            for the introduction of evidence, the determination of
            whether proper foundation has been established lies within
            the discretion of the trial court, and its determination
            will not be overturned absent a showing of clear abuse.

State v. Assaye, 121 Hawai#i 204, 210, 216 P.3d 1227, 1233 (2009)

(internal quotation marks and brackets omitted).

                              III.   Discussion

            In his opening brief to the ICA, Eid argued, inter

alia, that the district court erred in denying his motion in

limine to preclude the admission of the speed check cards and

Officer Perez’s testimony as to his speedometer reading.             Eid

asserted that “the State failed to adduce the requisite

foundation that the speedometer could be relied upon as

substantive fact and that it was in proper working order[,]”

under principles set forth in State v. Wallace, 80 Hawai#i 382,

910 P.2d 695 (1996), and State v. Manewa, 115 Hawai#i 343, 167


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P.3d 336 (2007).      This court subsequently decided Fitzwater,

which specifically addressed the foundation needed to admit

speedometer readings and speed check card evidence.             122 Hawai#i

at 365-77, 227 P.3d at 531-43.         Based on its reading of

Fitzwater, the ICA majority concluded that the State did not

establish sufficient foundation, because it had not proved the

identity of the manufacturer of the entire dynamometer.              SDO at

*1.   For the reasons set forth below, the ICA erred in reaching

that conclusion, since the evidence adduced at the pretrial

hearing was sufficient to establish that “the speed check could

be relied on as a substantive fact[.]”           Fitzwater, 122 Hawai#i at

377, 227 P.3d at 543 (quoting Wallace, 80 Hawai#i at 412, 910

P.2d at 725) (internal quotation marks omitted).             Accordingly,

the district court did not abuse its discretion in overruling

Eid’s lack of foundation objection and admitting the speed check

evidence and Officer Perez’s testimony.

A.    Foundational requirements required for admission of test
      results

            Fitzwater is the leading case on point because it

involved the reliability of speed check and speedometer reading

evidence in an excessive speeding case.           Id.   Fitzwater, however,

relied on prior cases regarding the admissibility of test results

involving other types of testing instruments.            Id. at 374-78, 227

P.3d at 540-44.      Accordingly, a review of those cases follows.

            In Wallace, this court examined the admissibility of


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test results relating to the weight of cocaine.             80 Hawai#i at

409-16, 910 P.2d at 722-29.        At issue in Wallace was the

reliability of the scale a chemist used to weigh the cocaine.

Id.   This court reiterated the fundamental evidentiary rule 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.”             80 Hawai#i at

407, 910 P.2d at 720 (quoting State v. Kemper, 80 Hawai#i 102,

105, 905 P.2d 77, 80 (App. 1995)).          This court stated that the

reliability of a test result requires “a showing that the

measuring instrument is ‘in proper working order.’”             Id. (quoting

State v. Thompson, 72 Haw. 262, 263, 814 P.2d 393, 395 (1991))

(internal quotation marks omitted).          Because the chemist “lacked

personal knowledge that the balance had been correctly calibrated

and merely assumed that the manufacturer’s service representative

had done so[,]” this court concluded that the State failed to

show that the balance was “in proper working order.”16             Wallace,

80 Hawai#i at 412, 910 P.2d at 725.         Accordingly, this court held

that the chemist’s testimony as to the net weight of cocaine was

inadmissible because inadequate foundation was laid.              Id.

            Similarly, in Manewa, this court examined the

admissibility of testimony relating to the results of an

      16
            This court noted that defendant Wallace had conceded that the
necessary information could have been, but was not, provided via a document
from the calibrating agency “showing the name of the person calibrating the
[balance], that he was qualified, [and] that [the balance] was calibrated on a
certain date[.]” 80 Hawai#i at 412 n.28, 910 P.2d at 725 n.28.

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analytical balance used to weigh methamphetamine.              115 Hawai#i at

345-46, 167 P.3d at 338-39.         At trial, an HPD criminalist

testified to the weight of the methamphetamine, but he had not

actually calibrated or serviced the balance himself, nor did he

have knowledge about how it was done.           Id. at 346, 167 P.3d at

339.    The HPD criminalist merely testified that a manufacturer’s

representative “checks out and services the balance two times a

year” and fills out a form indicating that the balance is in

proper working condition.17        Id. at 346, 355, 167 P.3d at 339,

348.    This court identified the same foundational concerns that

it identified in Wallace:         first, the manufacturer’s service

representative did not testify to calibration of the balance, and

second, the State offered no business records of the manufacturer

indicating a correct calibration of the balance.              Id. at 357, 167

P.3d at 350.      Accordingly, the court held that an “inadequate

foundation was laid to show that the weight measured by the

balance could ‘be relied on as a substantive fact[.]’”               Id. at

356, 167 P.3d at 349 (quoting Wallace, 80 Hawai#i at 412, 910

P.2d at 725).

             In State v. Assaye, this court applied the reasoning of

Wallace and Manewa to a laser gun used to measure a defendant’s



       17
            This court noted that such documents were in existence, but were
not offered by the state at trial. See Manewa, 115 Hawai#i at 355-56, 167
P.3d at 348-49 (“[A]s in Wallace, [the state] did not offer any business
records of the manufacturer indicating a correct calibration of the
balance. . . . Although available per the testimony of [the criminalist], [the
state] did not offer such records into evidence.”).

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speed in an excessive speeding case.          121 Hawai#i 204, 216 P.3d

1227 (2009).     At trial, the officer testified that he was

certified to use the laser gun and had also been instructed on

how to test and operate it.        Id. at 205-06, 216 P.3d at 1228-29.

When asked about the results of the tests he had conducted on the

laser gun prior to his shift, defense counsel objected as to lack

of foundation.      Id. at 206, 216 P.3d at 1229.        The trial court

overruled the objection and admitted the officer’s testimony.

Id. at 207, 216 P.3d at 1230.         This court held that the officer’s

testimony did not provide a sufficient foundation for the laser

gun’s speed reading to be admitted as “substantive fact.”               Id. at

212-14, 216 P.3d at 1235-37.         Specifically, this court held that

“the prosecution must prove that the laser gun’s accuracy was

tested according to procedures recommended by the manufacturer.”

121 Hawai#i at 215, 216 P.3d at 1238.          The court further held

that “the same burden of proof is applied to the issue of whether

the officer is qualified by training and experience to operate

the particular laser gun[,]” and found that the prosecution did

not satisfy this burden either.         Id. at 215-16, 216 P.3d at 1238-

39.

            Similar to the present case, Fitzwater involved charges

of excessive speeding.       122 Hawai#i at 357, 227 P.3d at 523.            In

Fitzwater, the State offered testimony from Officer Neal Ah Yat,

who stopped and cited Fitzwater for excessive speeding.              Id. at

357-58, 227 P.3d at 523-24.        Officer Ah Yat testified that a

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speed check was conducted on his police vehicle by “Jack’s

Speedo” in August 2006, but Officer Ah Yat did not testify about

how the speed checks were done.           Id. at 358, 227 P.3d at 524.

Over defense counsel’s objections, Officer Ah Yat testified to

the results of the speed check, which indicated that “‘[t]he

highest speed tested [was] at 75 miles per hour [and it] show[ed]

that the vehicle was indeed going 75 miles per hour.’”                  Id. at

358-59, 227 P.3d at 524-25.          Thereafter, the court admitted a

copy of the speed check card into evidence over the objection of

defense counsel.        Id. at 359, 227 P.3d at 525.        On cross-

examination, Officer Ah Yat acknowledged that he had not

personally taken his vehicle to Jack’s Speedo and did not know

how the speed check was conducted.            Id.   Based in large part on

the testimony of Officer Ah Yat, the court found Fitzwater guilty

of excessive speeding.         Id. at 360, 227 P.3d at 526.

              Fitzwater challenged his conviction on several grounds,

including insufficient foundation for the admission of the speed

check card and insufficient foundation to establish the

speedometer had been properly calibrated.             Id. at 361-62, 227

P.3d at 527-28.        As a preliminary matter, this court addressed

whether a speed check card could be admitted as a business record

under HRE Rule 803(b)(6).18         Id. at 362-63, 227 P.3d at 528-29.

        18
              HRE Rule 803(b)(6) (1993 and Supp. 2002) provided in pertinent
part:

                    Records of regularly conducted activity. A
              memorandum, report, record, or data compilation, in any

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After noting that Officer Ah Yat’s speed check card was most

likely prepared by a private shop and then incorporated by HPD

into its records, this court held that the card was not

admissible since the state had offered insufficient evidence to

establish the reliability of the document.19          Id. at 369, 227

P.2d at 535.

            This court also addressed Fitzwater’s argument that

“the State failed to establish a sufficient foundation to show

that the speedometer had been properly calibrated under

principles set forth in [Wallace] and [Manewa].”            Id. at 374, 227

P.2d at 540.    As a preliminary matter, this court examined

Wallace and Manewa, which, as discussed supra, established the

foundational requirements necessary before results of the

calibration scales used to weigh narcotics can “be relied on as a

substantive fact[,]” and observed that those underlying

principles had been extended to the results of laser guns in

Assaye.   Fitzwater, 122 Hawai#i at 376, 227 P.3d at 542.            This



            form, of acts, events, conditions, opinions, or diagnoses,
            made in the course of a regularly conducted activity, at or
            near the time of the acts, events, conditions, opinions, or
            diagnoses, as shown by the testimony of the custodian or
            other qualified witness, or by certification that complies
            with rule 902(11) or a statute permitting certification,
            unless the sources of information or other circumstances
            indicate lack of trustworthiness.

      19
            In contrast to the circumstances in Fitzwater where there was no
evidence to establish the reliability of the speed check card, the parties
here stipulated to Roy and Duane’s pretrial testimony being admitted at trial.
As discussed supra, that testimony involved detailed information regarding how
speed checks are performed at Roy’s Automotive, as well as the existence of a
contractual relationship between HPD and their shop.

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court then stated: “Based on the record before us, we see no

reason to apply different foundational requirements in the

context of speed checks, since the underlying concerns about the

reliability of the testing appear to be similar.”              Id.   (Emphasis

added).

             After determining that the foundational requirements of

Wallace and Manewa should be extended to speed checks, given

similar underlying concerns about the reliability of the testing,

this court stated:
             [I]n order for the results of speed checks to be admissible,
             the State must establish: (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.

Id. at 376-77, 227 P.3d at 542-43 (citing Assaye, 121 Hawai#i at

212-14, 216 P.3d at 1235-37; Wallace, 80 Hawai#i at 412 n.28, 910

P.2d at 725 n.28; Manewa, 115 Hawai#i at 355-57, 167 P.3d at 348-

50).

             As this court noted, “[t]he record [did] not indicate

exactly what kind of test was performed at Jack’s Speedo Shop,”

because the person(s) who actually conducted the speed check did

not testify at trial.        Fitzwater, 122 Hawai#i at 375, 227 P.3d at

541.    Although the citing officer, Ah Yat, testified that a speed

check was conducted on his police vehicle, his testimony did not

establish how the test was conducted or the qualifications of the

person who conducted it; rather, it was clear that his knowledge

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was based solely on the contents of the inadmissible speed check

card itself.    Id. at 358, 375, 227 P.3d 520 at 524, 541.           Given

these circumstances, we concluded that the “required information

was missing from the record here[,]” and that “[a]s a result,

inadequate foundation was laid to show that the speed check could

be relied on as a substantive fact.”         Fitzwater, 122 Hawai#i at

377, 227 P.3d at 543 (citations and quotation marks omitted).

B.   The ICA erred in concluding that the State failed to
     establish a sufficient foundation for the reliability of the
     speed checks, and consequently, the speedometer reading

           Unlike Fitzwater, where there was no evidence to

establish the reliability of the speed check, in the present case

there is extensive evidence, including lengthy testimony from

master certified automobile technicians Roy and Duane about the

procedures and equipment used to conduct the checks, as well as

Roy’s discussions with North Hollywood Speedometer, the

manufacturer of the master head, and correspondence from North

Hollywood Speedometer documenting its calibration of the master

head.   As set forth below, this evidence established a sufficient

foundation that the results from the speed checks conducted using

the speedometer dynamometer could be relied on as substantive

fact.   See Wallace, 80 Hawai#i at 412, 910 P.2d at 725.            More

specifically, the State established that the speedometer

dynamometer was in proper working order, and used by persons

qualified to operate the device.        See Wallace, 80 Hawai#i at 407,



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412, 910 P.2d at 720, 725; see also State v. Tailo, 70 Haw. 580,

582, 779 P.2d 11, 13 (1989) (“The accuracy of a particular radar

unit can be established by a showing that the operator tested the

device in accordance with accepted procedures to determine that

the unit was functioning properly and that the operator was

qualified by training and experience to operate the unit.”).

            The State established that Officer Perez’s speedometer

was tested for accuracy through the use of the speedometer

dynamometer on April 5, 2007 and on July 23, 2007.           Officer Perez

testified that he personally took his vehicle to Roy’s Automotive

for a speed check on April 5, 2007, and waited for 20-25 minutes

before he received the results of his speed check from Roy the

same day.   Officer Perez also testified that he had a speed check

conducted on July 23, 2007, and Roy’s Automotive prepared the

second speed check card as well.       In contrast to the record in

Fitzwater, Roy and Duane presented detailed testimony about how

speed checks are conducted at their shop.         Cf. Fitzwater, 122

Hawai#i at 375, 227 P.3d at 541 (noting that “[t]he record did

not indicate exactly what kind of test was performed”).

Specifically, Roy testified that they use a speedometer

dynamometer, which is comprised of the master head, rollers, and

a cable, to perform speed checks.         Roy testified that the

speedometer dynamometer is capable of calculating speed, and that

it is strictly mechanical.      Roy further testified that they

compare the reading of the master head to that of the vehicle’s

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speedometer at different speeds, and note any differences on the

speed check card.

            Other evidence supported the conclusion that the

speedometer dynamometer was in “proper working order.”             Wallace,

80 Hawai#i at 407, 910 P.2d at 720.        Roy testified that he called

North Hollywood Speedometer, the manufacturer of the master head,

in February or March of 2007 when he noticed slight discrepancies

between the readings of the master head and a vehicle’s

speedometer at higher speeds.        After listening to Roy explain how

he was operating the machine, North Hollywood Speedometer

indicated to Roy that “nothing’s wrong[.]”          Also, within six

months of the July 23, 2007 speed check, Roy sent his master head

in for calibration in January, 2008.         At that time, Roy provided

the manufacturer with measurements of the size of the rollers,

which were needed to perform the calibration.           The manufacturer

then sent Roy a letter, which was admitted into evidence, that

showed that Roy’s master head was accurate within 2 mph for

speeds up to 80 mph.20     Thus, the evidence in the instant case

contrasts with previous cases in which the testifying witness

assumed that the device had been properly calibrated, but did not

have any personal knowledge.        See Fitzwater, 122 Hawai#i at 358,

375, 227 P.3d at 524, 541 (noting that the testifying witness’s



      20
            The evidence established that the calibration was performed prior
to the refurbishment of the master head, which was documented in a separate
letter.

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testimony did not establish a sufficient foundation because it

was clear that his knowledge was based solely on the contents of

the inadmissible speed check card itself); Wallace, 80 Hawai#i at

412, 910 P.2d at 725 (finding that the testifying witness “lacked

personal knowledge that the balance had been correctly calibrated

and merely assumed that the manufacturer’s service representative

had done so”); Manewa, 115 Hawai#i at 355-56, 167 P.3d at 348-49

(noting that the state “did not call the manufacturer’s service

representative to testify to [the] calibration of the balance”).

          Additionally, the State established that the persons

conducting the speed check were qualified by experience to

operate the device.     See Tailo, 70 Haw. at 582, 770 P.2d at 13.

The State established at the pretrial hearing that only Roy and

Duane, experienced auto mechanics, performed speed checks on HPD

vehicles in 2007.    The district court qualified Roy as an

automotive vehicle expert and a motor vehicle mechanic dealer

expert and qualified Duane as an expert in the fields of

automotive mechanics and repair and automotive technology.

Although Roy did not receive specific training on how to use the

speedometer dynamometer, Roy testified that “for a mechanic, it’s

pretty straightforward.”      Notably, Eid’s expert witness, Ho,

similarly testified that he was not aware of any certification,

school, or formal training for operating or using a speedometer

dynamometer.   Rather, Ho testified that a person would gain

knowledge about a speedometer dynamometer by using it and through

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experience.

            By showing that the speedometer dynamometer was in

proper working order and used by qualified mechanics in

conducting the speed checks, the State provided adequate

assurances that the results of the speed checks were reliable.

However, the ICA’s lead opinion rejected that conclusion, because

although the State established the manufacturer of the master

head (North Hollywood Speedometer), it did not establish the

manufacturer of the rollers and cable.          SDO at *1.    Thus, the ICA

reasoned, there was insufficient evidence to establish the

foundational requirements of Fitzwater.          Id.

            We do not read Fitzwater as imposing a requirement that

the manufacturer of the entire dynamometer assembly be

established, if there is sufficient evidence in the record to

establish that the equipment that was used was reliable.

Although Roy testified that he did not know who manufactured the

rollers and cables,21 he further testified that their operation

is purely mechanical and was within his expertise as a licensed

mechanic:    the rollers are spun by the wheels of the car being

tested, and that spin is transmitted to the master head by the

cable.     Moreover, the master head, which is a more sophisticated

piece of equipment, was calibrated by its manufacturer North

Hollywood Speedometer in January 2008, about six months after the


      21
            At some point during 2007, Roy testified that he installed a
replacement cable that had been made by Higa.

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second of the two speed checks performed on Officer Perez’s car,

and nine months after the first test; in connection with that

calibration, Roy provided North Hollywood Speedometer with the

size of the rollers, which was needed to determine the accuracy

of the readings provided by the master head when used in Roy’s

dynamometer set-up.     Also, in February or March of 2007, which

was a month or two before the first of the two speed checks

performed on Officer Perez’s car, Roy spoke to North Hollywood

Speedometer, described the way he was working his dynamometer and

the cars that he was testing, and confirmed that the results he

was obtaining were “okay” because they were within the expected

margin of error.

          All of this evidence was sufficient to satisfy the

requirement set forth in Fitzwater that the speed check be

“performed in the manner specified by the manufacturer of the

equipment[.]” 122 Hawai#i at 377-78, 227 P.2d at 542-43.            While

the manufacturer of the rollers and cable was not established,

the absence of that information was not material, since their

operation was straightforward and within the expertise of Roy and

Duane as licensed mechanics.

          Moreover, there was additional evidence that supports

the admission of the evidence.       During the second of the two

speed checks, Roy used a digital scanner as well as the

dynamometer, and the record supports the inference that its



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readings were consistent with those of the dynamometer.22

Although the record does not contain detailed information about

the recommended procedures for the use of the digital scanner,23

nevertheless the readings provided by the scanner provide some

additional corroboration for the accuracy of the dynamometer.

            Lastly, we note that we are reviewing the district

court’s determination that adequate foundation was established

for abuse of discretion.       Assaye, 121 Hawai#i at 210, 216 P.2d at

1233 (noting that the trial court’s determination “will not be

overturned absent a showing of clear abuse”) (citation omitted).

Given the evidence adduced here to establish a foundation, we

cannot say that the district court abused its discretion in

admitting the speed check evidence.          That evidence in turn

provided a sufficient foundation for Officer Perez’s testimony

regarding his speedometer reading on the day he cited Eid for

excessive speeding.      Specifically, both speed check cards showed

that Officer Perez’s speedometer was accurately reading 65 mph

when it was tested at that speed.          Additionally, Officer Perez

testified that prior to September 19, 2007, the day he cited Eid

for excessive speeding, he did not have any repairs done to his

speedometer.    Accordingly, a sufficient foundation was laid for


      22
            Roy testified that when a scanner is used, he compares the
readings of the master head, scanner, and the vehicle’s speedometer at speeds
up to 100 mph. Roy testified that when they would reach 100 mph, they would
detach the master head, and continue the speed check with just the scanner.

      23
            Roy testified that he updates the software for his scanners at
least once every two or three years.

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Officer Perez to testify that he paced Eid at 65 mph in a 25 mph

zone.

                             IV. Conclusion

          For the foregoing reasons, we conclude that the State

established a sufficient foundation to admit the speed check

evidence, and consequently, the speedometer reading in this case.

Accordingly, we vacate the judgment of the ICA, and remand to the

ICA for a determination of whether the district court abused its

discretion in denying Eid’s motion to compel.

On the briefs:
                                   /s/ Mark E. Recktenwald
Brian R. Vincent, Deputy
                                   /s/ Paula A. Nakayama
Prosecuting Attorney, for
petitioner/plaintiff-
                                   /s/ James E. Duffy, Jr.
appellee.
                                   /s/ Sabrina S. McKenna
Jon N. Ikenaga, Deputy
Public Defender, for
respondent/defendant-
appellant.




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