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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0001121
                                                              15-MAY-2017
                                                              08:12 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAIʻI,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                          RAYMOND S. DAVIS,
                   Petitioner/Defendant-Appellant.


                            SCWC-12-0001121

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-12-0001121; CASE NO. 1DTA-12-01623)

                              MAY 15, 2017

   McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J.,
           DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

          This case concerns the admissibility of two

Intoxilyzer Supervisor’s Sworn Statements to prove that the

Intoxilyzer used to test Raymond S. Davis’s breath alcohol

content was in proper working order.        The State relied on these

out-of-court statements in establishing the reliability of

Davis’s breath alcohol test results, which in turn served as a
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basis for his conviction for the offense of operating a vehicle

under the influence of an intoxicant.         We consider whether the

Intoxilyzer Supervisor’s Sworn Statements were admissible given

the facts of this case under the Hawaii Rules of Evidence.

                            I.      BACKGROUND

            The State of Hawaiʻi filed a complaint in the District

Court of the First Circuit (district court), charging that, on

March 3, 2012, Raymond S. Davis committed the offense of

Operating a Vehicle Under the Influence of an Intoxicant

(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-

61(a)(1) and/or (a)(3) (Supp. 2011).1         At the commencement of the

bench trial,2 the State orally arraigned Davis only under HRS §

291E-61(a)(3) for operating or assuming actual physical control


      1
            HRS § 291E-61(a) provides in relevant part:

            A person commits the offense of operating a vehicle under
            the influence of an intoxicant if the person operates or
            assumes actual physical control of a vehicle:

               (1) While under the influence of alcohol in an amount
               sufficient to impair the person’s normal mental
               faculties or ability to care for the person and guard
               against casualty; [or]

                  . . . .

               (3) With .08 or more grams of alcohol per two hundred
               ten liters of breath . . . .

HRS § 291E-61(a) (Supp. 2011).
      2
            The Honorable Shirley Kawamura presided.



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of a vehicle upon a public way, street, road, or highway with

.08 or more grams of alcohol per 210 liters of breath.                Davis

entered a plea of not guilty to the charge.

               The State’s first witness was Officer Russell

Maeshiro, who testified that on March 3, 2012, around 2:10 a.m.,

he stopped Davis’s car after observing Davis weave in and out of

marked lanes without using his blinkers or hand signals.

Officer Maeshiro approached the driver’s side of the vehicle and

observed that Davis had red, bloodshot, glassy eyes and noted

that Davis spoke with an apparent slight slur.              The officer

stated that he asked Davis to complete a field sobriety test

after smelling the odor of an alcoholic beverage coming from the

interior of Davis’s car.          At this point in the testimony, Davis

stipulated that, based on Officer Maeshiro’s observations, the

officer had reasonable suspicion to stop Davis and probable

cause to arrest him for OVUII.

               Officer Kimberly Ann Chaney testified that she

transported Davis from the location of the stop to the Kalihi

police station.        Officer Chaney related that she informed Davis

of the implied consent law by reading him form HPD-396K.3                After


      3
               Davis has not challenged the validity of his consent to take the
breath test.     See State v. Won, 137 Hawaiʻi 330, 372 P.3d 1065 (2015).



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Davis elected to take a breath test, Officer Chaney testified

that she turned on the Intoxilyzer 8000, identified as serial

number 80-003486 (Intoxilyzer), and that the machine proceeded

to conduct and pass an internal self-check.

          After questioning Officer Chaney regarding the

internal self-check, the State asked whether “based on [Officer

Chaney’s] training and experience in operating the Intoxilyzer

8000,” the instrument “appear[ed] to be operating properly and

accurately on the date in question.”        Before Officer Chaney

responded, the State showed to defense counsel two Intoxilyzer

8000 Accuracy Test Supervisor’s Sworn Statements, dated February

29, 2012, and March 16, 2012 (Sworn Statements 1 and 2,

respectively).    The State, however, asked no questions of

Officer Chaney regarding Sworn Statements 1 and 2.           Rather, the

State informed the court that Sworn Statements 1 and 2 “show[ed]

that the instrument was working properly” and that it sought to

admit the documents into evidence as proof of the Intoxilyzer’s

condition and accuracy.

          The top half of Sworn Statements 1 and 2 includes a

machine printout of the calibration testing data from the

Intoxilyzer.   The bottom half of Sworn Statements 1 and 2

includes a pre-printed text block in which a person by the name

of Woo Kang is identified as the Intoxilyzer supervisor.            As to

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the machine printout of the calibration testing data, there is a

table listing the following information in this order: (1) air

blank; (2) simulator temperature; (3) reference sample #1; (4)

air blank; (5) air blank; (6) simulator temperature;

(7) reference sample #2; (8) air blank; (9) ITP check; and

(10) air blank.     Next to each category of information, except

the simulator temperatures, is a data entry based on “g/210L

BrAC.”4   Next to each data entry is a time stamp.

            The pre-printed text block located in the bottom half

of Sworn Statements 1 and 2 contains the following statement:

            I, Woo KANG, swear that the aforementioned information is
            true and correct and that I am a duly licensed Intoxilyzer
            8000 supervisor trained to maintain and perform accuracy
            tests on the Intoxilyzer 8000. The Intoxilyzer 8000 is a
            breath alcohol testing instrument approved for use in the
            State of Hawaii pursuant to section 321-161 of the Hawaii
            Revised Statutes as amended. The Intoxilyzer was operating
            accurately in compliance with the State of Hawaii
            Department of Health Administrative Rules, Title Eleven,
            Chapter 114-7, on the date indicated below, when I
            conducted the accuracy test recorded on this document.

Below this pre-printed language are the date, Woo Kang’s

signature, and his license number and its expiration date.

            Davis objected to Sworn Statements 1 and 2 being

entered into evidence based upon, inter alia: (1) lack of


      4
            It appears that “g/210L BrAC” denotes a measurement of alcohol
concentration, which Hawaiʻi Administrative Rules (HAR) § 11-114-4 defines as
“grams of alcohol per two hundred ten liters of breath.” See HAR § 11-114-4
(1993).



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foundation; (2) hearsay; and (3) hearsay within hearsay.            Davis

argued that Sworn Statements 1 and 2 did not substantively

comply with the requirements of Hawaii Rules of Evidence (HRE)

Rule 803(b)(6) (1993 & Supp. 2002), which is the hearsay

exception for records of regularly conducted activity (i.e.,

business records).    Further, Davis maintained that without more

information or testimony as to Sworn Statements 1 and 2, the

data printout reflecting the calibration test results was

meaningless to the court; he noted, for example, that there was

no evidence presented as to what known reference samples were

used in the calibration testing and what their “target values”

or output should have been in the machine’s data printout.

Additionally, Davis contended that there was no information

presented as to the specifics of the calibration procedure

performed by Kang, which apparently differed from the

Intoxilyzer’s internal self-check.        Davis also objected to the

admission of Sworn Statements 1 and 2 into evidence under the

public records exception.      Davis argued that Sworn Statements 1

and 2 lacked reliability on their face because the State failed

to present the circumstances of how the information was

obtained, given that Kang did not testify at trial.

          The State contended that there was sufficient legal

basis under HRE Rule 803(b)(8) (1993 & Supp. 2002) for the

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admission of Sworn Statements 1 and 2 into evidence because they

were public records made in the course of a regularly conducted

activity.    The State maintained that each document was a self-

authenticating copy of the original log, which was kept in the

custody of the Honolulu Police Department (HPD), a public

office, and that each document contained a data compilation.

The State further argued that the criteria for admitting Sworn

Statements 1 and 2 into evidence were met because each document,

on its face, complied with the requirements prescribed in the

Hawaiʻi Administrative Rules (HAR), and each document indicated

that the Intoxilyzer was “operating accurately” when calibrated.

The State maintained that the district court did not need to

look at the data printout set forth in Sworn Statements 1 and 2

to determine whether or not the device was operating accurately

because Kang swore that the machine was operating accurately in

compliance with the HAR.

            Over the defense’s objection, the district court

received into evidence Sworn Statements 1 and 2.5           The district

court, also over objection, admitted into evidence the March 3,

2012 Sworn Statement of Intoxilyzer Operator (Operator

     5
            The district court did not expressly indicate on what basis it
was admitting Sworn Statements 1 and 2 into evidence, but it appears that the
court’s ruling was based on HRE Rules 902(4) (1993 & Supp. 2002), 1005
(1993), and 803(b)(8) (1993 & Supp. 2002).


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Statement), which indicated that the breath alcohol content

measured by the Intoxilyzer for Davis was .139 grams of alcohol

per 210 liters of breath.

          Based on the evidence presented, the district court

concluded that the State met the three foundational requirements

to show that Davis’s breath test results could be relied on as

substantive evidence: (1) the Intoxilyzer was in proper working

order; (2) its operator was qualified; and (3) the test was

properly administered.     The court also determined that the State

showed strict compliance with the requirements of the HAR.

Consequently, the district court concluded that the State proved

beyond a reasonable doubt that Davis had .08 or more grams of

alcohol per 210 liters of breath at the time he was driving on

March 3, 2012.    Accordingly, the district court found Davis

guilty of the offense charged and entered its Order and Notice

of Entry of Order on November 29, 2012.

          Davis appealed to the Intermediate Court of Appeals

(ICA), challenging the district court’s admission of Sworn

Statements 1 and 2 into evidence on the grounds that they did

not meet the foundational requirements and failed to comply with




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the requirements of the business records exception.6            Davis noted

that he had objected at trial to the admission of Sworn

Statements 1 and 2 under the Hawaii Rules of Evidence as

inadmissible hearsay.      Davis further contended that because the

district court erred in admitting Sworn Statements 1 and 2, the

State failed to present any evidence that the Intoxilyzer used

to test his breath alcohol content was in proper working order

and thus failed to lay a proper foundation for the admission of

his breath test results.       In response, the State maintained that

the district court properly admitted Sworn Statements 1 and 2

into evidence as public records under HRE Rule 803(b)(8).              The

State therefore argued that the district court did not err in

admitting Davis’s breath test results into evidence.

           In a Summary Disposition Order, the ICA ruled that the

district court did not err by admitting Sworn Statements 1 and 2

into evidence because they were admissible as self-

authenticating public records under HRE Rules 803(b)(8) and

902(4).   The ICA reasoned that because Intoxilyzer calibration

tests by the HPD are required, pursuant to HAR § 11-114-12,7 to

     6
            Davis also contended that Sworn Statements 1 and 2 were
inadmissible because both documents were meaningless and irrelevant due to
the absence of essential information and because their admission violated his
confrontation rights under the Hawaiʻi Constitution.
     7
           HAR § 11-114-12 provides,

                                                              (continued. . .)
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be kept and maintained by the Intoxilyzer supervisor for at

least three years, Sworn Statements 1 and 2 are public records

or reports of a public agency and, therefore, an exception to

hearsay within the meaning of HRE Rule 803(b)(8).8            Accordingly,

the ICA affirmed the district court’s Order and Notice of Entry

of Order entered on November 29, 2012.

                      II.     STANDARDS OF REVIEW

            “When application of a particular evidentiary rule can

yield only one correct result, the proper standard for appellate

review is the right/wrong standard.”         State v. Jhun, 83 Hawaiʻi

(. . .continued)

            (a) Records shall be kept and maintained at the direction
      of a supervisor.

            (b) Records shall include information on:

                   . . . .

            (2) Accuracy tests;

                   . . . .

            (c) Records maintained pursuant to subsection (a) shall be
      retained by the jurisdiction for at least three years.

HAR § 11-114-12 (1993).
      8
            The ICA also concluded that Davis’s objection for lack of
foundation was without merit and noted that Davis’s objection based on
relevance was waived pursuant to Hawaiʻi Rules of Appellate Procedure Rule
28(b)(4). In the alternative, with regard to the relevancy argument, the ICA
indicated that because Sworn Statements 1 and 2 state that “[t]he Intoxilyzer
was operating accurately in compliance with the State of Hawaiʻi Department of
Health Administrative Rules, Title Eleven, Chapter 114-7,” these documents
were relevant to demonstrate that the Intoxilyzer was working properly during
Davis’s breath test on March 3, 2012.



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472, 477, 927 P.2d 1355, 1360 (1996) (quoting Kealoha v. Cty. of

Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)).

However, in cases where the rules of evidence require a

“judgment call” by the trial court, “the traditional abuse of

discretion standard should be applied.”          Id.   Thus, in Jhun, in

reviewing the trial court’s ruling with respect to hearsay and

HRE Rule 803(b)(8), this court applied the right/wrong standard

because the trial court did not have to make a “judgment call”

when it determined that the proffered evidence failed to qualify

under the public records exception, as the report did not set

forth factual findings resulting from an investigation.             Id. at

477-81, 927 P.2d at 1360-64.

                         III.       DISCUSSION

           In his Application for Writ of Certiorari, Davis

contends that the ICA erred in concluding that the district

court properly admitted into evidence Sworn Statements 1 and 2

under the Hawaii Rules of Evidence.9         Davis maintains that

because Sworn Statements 1 and 2 were improperly admitted,

evidence of his breath alcohol content obtained from the


      9
            Davis also challenges the admissibility of Sworn Statements 1 and
2 based on lack of relevance, lack of trustworthiness, and a violation of his
confrontation rights under the Hawaiʻi Constitution. In light of our
disposition of this case, it is not necessary to address these arguments.



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Intoxilyzer was also improperly received and thus there was

insufficient evidence to support his OVUII conviction.

          In State v. Thompson, 72 Haw. 262, 814 P.2d 393

(1991), this court noted that to admit a specific Intoxilyzer

breath alcohol test result into evidence, the prosecution must

lay a proper foundation “to establish the accuracy of the

alcohol concentrations used in breath tests.”          Id. at 263, 814

P.2d at 394.   The foundation must show that “(1) the intoxilyzer

was in proper working order; (2) its operator was qualified; and

(3) the test was properly administered.”         Id. at 263, 814 P.2d

at 394-95 (quoting State v. Souza, 6 Haw. App. 554, 558, 732

P.2d 253, 257 (1987)).     This foundation is necessary to prove

the reliability of the test result that establishes intoxication

before the test result can be relied on as a substantive fact.

Souza, 6 Haw. App. at 558, 732 P.2d at 256.

          “[I]n meeting the foundational prerequisites for the

admission of the Intoxilyzer test result[,] there must be a

showing of strict compliance with those provisions of the

[Hawaiʻi Administrative] Rules [governing the testing of blood,

breath, and other bodily substances for alcohol concentration]

which have a direct bearing on the validity and accuracy of the




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test result.”10    State v. Kemper, 80 Hawaiʻi 102, 105, 905 P.2d

77, 80 (App. 1995) (quoting State v. Matsuda, 9 Haw. App. 291,

293, 836 P.2d 506, 508 (1992)).        This includes establishing that

the calibration procedure used to test the accuracy of the

Intoxilyzer strictly complied with the HAR because the

calibration test has a “direct bearing on the validity and

accuracy of the test result obtained from that Intoxilyzer.”

Souza, 6 Haw. App. at 562, 732 P.2d at 259.           Accordingly, in

order “to fulfill the foundational prerequisites of

admissibility” of the test result in this case, the State was

required to show that the Intoxilyzer calibration test, which

has a direct bearing on the validity and accuracy of Davis’s

breath test result, was in compliance with HAR § 11-114-711 and



     10
            Title 11, chapter 114 of the HAR provides the relevant rules and
regulations for the “Testing of Blood, Breath, and Other Bodily Substances
for Alcohol Concentration.” It applies to “individuals or laboratories who
collect samples for or conduct forensic alcohol testing for the purpose of
introduction of the alcohol test results into evidence in . . . criminal
proceedings under applicable State driving under the influence of alcohol
statutes.” HAR § 11-114-1(b) (1993).
     11
           HAR § 11-114-7 provides the following:

            (a)   Every accuracy test procedure shall be approved by the DUI
coordinator in writing and shall include, but not be limited to the following
requirements:

                  (1)   The test shall be conducted by a supervisor;

                  (2)   At least two different reference samples and an
                        air blank shall be run with each accuracy test;


                                                              (continued. . .)
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was therefore in proper working order on the calibration testing

dates.     See id.

           A. Admissibility under Public Records Exception,
                          HRE Rule 803(b)(8)

            The State contended at trial, and the ICA agreed, that

Sworn Statements 1 and 2 were admissible public records under

HRE Rule 803(b)(8) (1993 & Supp. 2002) and thus demonstrated

that the Intoxilyzer was in proper working order on the dates of

the calibration testing.12


(. . .continued)

                   (3)   Reference samples shall be chosen so that their
                         target values are not less than 0.04gm alcohol/210
                         liters and not greater than 0.25gm alcohol/210
                         liters;

                   (4)   Reference sample target values shall differ from
                         each other by at least 0.04gm alcohol/210
                         liters;

                   (5)   Reference sample test results which vary from the
                         target value by more than plus or minus 0.0/gm
                         alcohol/210 liters or plus or minus ten percent,
                         whichever is greater, shall be cause for the
                         breath alcohol testing instrument used to be
                         removed from service until the fault has been
                         corrected; and

                   (6)   An accuracy test shall be performed on an
                         operating instrument at intervals not to exceed
                         thirty-one days.

HAR § 11-114-7 (1993).
      12
            At oral argument, counsel for the State maintained that Sworn
Statements 1 and 2 would not be admissible hearsay under the public records
exception, but that they would instead be admissible under the business
records exception. See Oral Argument at 20:10-26, 23:25-58, State v. Davis,
SCWC-12-0001121 (argued Dec. 17, 2015), http://oaoa.hawaii.gov/jud/oa
/15/SCOA_121715_scwc12_1121.mp3. In response to a question by the court,

                                                               (continued. . .)
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      i. Analysis of “Matters Observed,” HRE Rule 803(b)(8)(B)

            HRE Rule 803(b)(8) sets forth the public records

hearsay exception:

            Records, reports, statements, or data compilations, in any
            form, of public offices or agencies, setting forth (A) the
            activities of the office or agency, or (B) matters observed
            pursuant to duty imposed by law as to which matters there
            was a duty to report, excluding, however, in criminal cases
            matters observed by police officers and other law
            enforcement personnel, or (C) in civil proceedings and
            against the government in criminal cases, factual findings
            resulting from an investigation made pursuant to authority
            granted by law, unless the sources of information or other
            circumstances indicate lack of trustworthiness.

HRE Rule 803(b)(8) (1993 & Supp. 2002).

            Thus, the public records exception to the hearsay rule

allows for the admission of records, reports, statements, or

data compilations, in any form, of public offices or agencies if

those documents contain certain categories of information and

meet other requirements of this hearsay exception.            Id.   Under

HRE Rule 803(b)(8)(B), a public record may be admissible if it

sets forth “matters observed pursuant to a duty imposed by law

as to which there was a duty to report.”          A record or report

will not be admissible under the public records exception,

however, if it falls within the exclusion clause of HRE Rule

803(b)(8)(B), which prohibits the admission in criminal cases of

(. . .continued)

counsel changed his position and argued that the public records exception
would be a basis for admitting Sworn Statements 1 and 2 into evidence. Id.



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“matters observed by police officers and other law enforcement

personnel.”    Id.

           Therefore, determining whether proffered hearsay

evidence falls within HRE Rule 803(b)(8)(B) requires a two-part

inquiry.   First, the proponent of the evidence must establish

that the record or report presents “matters observed” and that

there existed a duty to make and report the observations.              Id.

Second, the proffered evidence must not fall within the criminal

case exclusion clause as a matter observed by law enforcement

personnel.13    Id.; see also Addison M. Bowman, Hawaii Rules of

Evidence Manual § 803-3[8][D], at 8-44 (2016-2017 ed.).

           As to the first inquiry, the phrase “matters observed”

“could reach virtually everything, but apparently it was

intended to have [a] narrower meaning.”          Christopher B. Mueller

& Laird C. Kirkpatrick, Evidence § 8.50, at 910 (5th ed. 2012).

That is, the term “matters observed” narrows the coverage of

subsection (B) “to information that is concrete and simple in

nature,” rather than encompassing all “records describing an

almost endless variety of acts, events, and conditions in the


     13
            Because we conclude below that Kang’s statement in the bottom
half of Sworn Statements 1 and 2 does not constitute a “matter observed,” we
need not reach the issue of whether Sworn Statements 1 and 2 fall within the
public records exclusion for criminal cases as matters observed by law
enforcement personnel. See HRE Rule 803(b)(8)(B).



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world observed and depicted by public officials.”           Id. at 910.

Indeed, “matters observed” are “routine recordations not

resulting from analysis or judgment” and do not encompass

“conclusions, opinions, and evaluative findings.”           Bowman,

supra, § 803-3[8][D], at 8-44 (emphasis added); see also Pool v.

Wade, 685 N.E.2d 791, 793 (Ohio Ct. App. 1996) (analyzing

“matters observed” subsection of similar Ohio public records

exception and stating that “[n]otably, the Rule does not include

records, or portions of records, that may be characterized as

‘evaluations’ or ‘interpretations’ of . . . events or

transactions.” (quoting Weissenberger’s Ohio Evidence § 803.105,

at 409 (1996))).

          Examples of data or information compilations that do

constitute “matters observed” include official weather

observations, Village of Evanston v. Gunn, 99 U.S. 660, 666-67

(1878) (meteorological observations by U.S. Signal Service);

judgments or orders of the court, State v. Samonte, 83 Hawaiʻi

507, 538, 928 P.2d 1, 32 (1996) (court record of judgment of

conviction); a Coast Guard description of a damaged buoy, United

States v. Tug Otto, 296 F. Supp. 1130, 1133 (S.D. Tex. 1967)

(record of the board of survey finding that the buoy was damaged

beyond economic repair admissible because “[n]o particular

degree of expertise would be required to make a determination if

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a particular buoy were damaged beyond economic repair”); reports

detailing observed conditions at institutional facilities,

Schwartzberg v. Califano, 453 F. Supp. 1042, 1046 (S.D.N.Y.

1978) (U.S. Department of Health, Education, and Welfare report

recounting observations of nursing home and health facility);

and “observations in an accident report that describe the scene

and equipment and report concrete measurements and easily

observable damage or destruction,” Mueller & Kirkpatrick, supra,

§ 8.50, at 911.

    ii. Comparison to “Factual Findings,” HRE Rule 803(b)(8)(C)

           Comparing the term “matters observed” within

subsection (B) of HRE Rule 803(b)(8) and the term “factual

findings” within subsection (C) further demonstrates the

former’s limited scope.      “Factual findings from an

investigation” admissible under HRE Rule 803(b)(8)(C)’s federal

counterpart14 have been interpreted by the United States Supreme



      14
            The federal public records hearsay exception is codified at
Federal Rules of Evidence (FRE) 803(8) and provides in relevant part:

           (8) Public Records.   A record or statement of a public
           office if:

                  (A) it sets out:

                        (i) the office’s activities;

                        (ii) a matter observed while under a legal duty
                        to report, but not including, in a criminal case,

                                                              (continued. . .)
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Court to include “conclusions or opinions that flow from a

factual investigation.”          See Beech Aircraft Corp. v. Rainey, 488

U.S. 153, 164 (1988); see also State v. Jhun, 83 Hawaiʻi 472,

481, 927 P.2d 1355, 1364 (1996) (noting that “independent

conclusions or opinions” may be admissible as “factual findings”

under HRE Rule 803(b)(8)(C)).           Notably, the legislative history

of the federal public records exception suggests that its

drafters envisioned the “factual findings” subsection--rather

than the “matters observed” or “activities of an office or

agency” subsections--as providing the gateway for admission of

“evaluative reports” that would otherwise constitute hearsay.

See Beech Aircraft Corp., 488 U.S. at 164-67 (discussing

legislative history of FRE 803(8)(A)(iii) and determining that


(. . .continued)

                           a matter observed by law-enforcement personnel;
                           or

                           (iii) in a civil case or against the government
                           in a criminal case, factual findings from a
                           legally authorized investigation; and

                     (B) the opponent does not show that the source of
                     information or other circumstances indicate a lack of
                     trustworthiness.

FRE 803(8) (2014).

            “Although cases interpreting provisions in the Federal Rules of
Evidence are of course not binding on us, we may refer to them for their
persuasive authority in interpreting similar provisions of the Hawaii Rules
of Evidence.” State v. Jhun, 83 Hawaiʻi 472, 478, 927 P.2d 1355, 1361 (1996).



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the Advisory Committee “surely” intended that “factual findings”

subsection would allow for admission of “evaluative reports”).

          In keeping with this distinction, the term “matters

observed” within the federal public records exception has been

interpreted as excluding evaluative findings and opinions.             See

Baker v. Elcona Homes Corp., 588 F.2d 551, 556-57 (6th Cir.

1978).   In Baker, a defendant in a vehicular negligence lawsuit

sought to introduce a police accident report to settle the

disputed fact of whether a traffic light was red or green at the

time of an accident.     Id. at 555.     The police report included

(1) the responding officer’s visual description of the accident

scene upon arrival, including measurements and physical

markings, (2) a transcript of the officer’s subsequent interview

with one of the parties, (3) a notation that “apparently unit #2

(the Valiant) entered the intersection against a red light,” and

(4) notations that “unit #2” failed to yield the right-of-way

and that both drivers were “preoccupied.”         Id. at 554-55.      The

police report was admitted into evidence over the plaintiff’s

hearsay objection.    Id. at 555.      On appeal, the Sixth Circuit

Court of Appeals determined that the “matters observed” and

“factual findings” subsections of FRE 803(8) were applicable.

Id. at 555-56.    The Court of Appeals first concluded that “the

direct observations and recorded data” of the responding officer

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“clearly” constituted “matters observed” within the meaning of

FRE 803(8)(A)(ii).    Id. at 556.     The Sixth Circuit’s “principal

concerns,” however, related to, inter alia, whether the traffic

light and fault notations were properly admissible under either

the “matters observed” or “factual findings” subsections.             Id.

The Court of Appeals concluded that the traffic light and fault

notations were more appropriately characterized as “factual

findings” falling under FRE 803(8)(A)(iii), because they related

to “whether the light was red or green for one driver or the

other at the time of the accident.”        Id. at 557.     In so

deciding, the Sixth Circuit made the following distinction

between the “matters observed” and “factual findings”

subsections:

          Applying the rule and its background to the facts here, it
          is apparent that whether the light was red or green for one
          driver or the other at the time of the accident is
          distinctly a factual finding within the meaning of the rule
          . . . . It is also clear from the construction of the rule
          itself that factual findings admissible under Rule
          803(8)[(A)(iii)] may be those which are made by the
          preparer of the report from disputed evidence, as
          contrasted to those facts which are “matters observed
          pursuant to duty imposed by law as to which matters there
          was a duty to report” called for under Rule
          803(8)[(A)(ii)].

Id. at 557–58.    Thus, the court considered that the “matters

observed” subsection of the public records exception encompassed

the “direct observations and recorded data” included by the

officer in his accident report, whereas the “factual findings”

subsection applied to conclusions or evaluations (i.e., whether
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the light was red or green at the time of the accident) based on

those observations or data.       Id.; see also Bradbury v. Ford

Motor Co., 358 N.W.2d 550, 552 (Mich. 1984) (noting the

distinction between the “concepts” in the “matters observed” and

“factual findings” subsections of the public records hearsay

exception).

           In this case, to meet the requirements under HRE Rule

803(b)(8)(B), Kang’s statement in the bottom half of Sworn

Statements 1 and 2 that the “Intoxilyzer was operating

accurately” must constitute a “matter[] observed.”15            See HRE

Rule 803(b)(8)(B).      In his sworn statement, Kang indicated that

he was a “duly licensed Intoxilyzer 8000 supervisor trained to

maintain and perform accuracy tests on the Intoxilyzer 8000.”

Indeed, HAR § 11-114-7 requires that an Intoxilyzer supervisor

conduct the calibration tests, and HAR § 11-114-916 prescribes


     15
            The machine printout of the calibration testing data included
within the top half of Sworn Statements 1 and 2 may constitute a collection
of “routine recordations” qualifying as “matters observed” within the meaning
of HRE Rule 803(b)(8)(B). Bowman, supra, § 803-3[8][D], at 8-44. Because
this court concludes that the sworn statement of Kang included within the
bottom half of Sworn Statements 1 and 2 does not constitute a “matter
observed,” we do not analyze HRE Rule 803(b)(8)(B) with respect to the
testing data.
     16
           HAR § 11-114-9 provides in relevant part:

                 (b)   No person shall serve as a supervisor without a
           valid license issued by the DUI coordinator or the chief of
           police.


                                                              (continued. . .)
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the training and licensing requirements for Intoxilyzer

supervisors.       Thus, based on the record and the qualification

requirements for Intoxilyzer supervisors, Kang was required to

have specialized knowledge, experience, and training in

Intoxilyzer calibration testing.            Kang’s sworn statement that

the “Intoxilyzer was operating accurately” was based upon his

technical analysis of the data included within the top half of

Sworn Statements 1 and 2, which he collected in conducting the

Intoxilyzer calibration tests.          Therefore, Kang’s sworn
(. . .continued)

                  (c)   A supervisor may practice only in the
            jurisdiction designated on the license.

                   . . . .

                  (e)   A supervisor’s license shall be effective for
            three years from date of issuance unless revoked by the
            issuer.

                   . . . .

                   (h)   Training programs for supervisors shall:

                   (1)   Be conducted either by the DUI coordinator,
                   the chief of police, the chief’s
                   representative(s) or, with the written
                   approval of the DUI coordinator or the
                   chief of police, by a representative(s) of
                   the manufacturer of the breath alcohol
                   testing instrument;

                   (2)    Consist of a minimum of eight hours; and

                   (3)   Be approved in writing by the DUI
                   coordinator except as provided in
                   subsection (j)(1).

HAR § 11-114-9 (1993).



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statement that the “Intoxilyzer was operating accurately” is an

expert conclusion based on his technical proficiency in

Intoxilyzer calibration testing.

           Kang’s conclusion that the Intoxilyzer was functioning

accurately is similar to the responding officer’s conclusion in

Baker that a driver ran a red light and was at fault for a

resulting accident.     588 F.2d at 556-57.      The responding officer

in Baker gathered data by observing the physical circumstances

of the accident scene and conducting other investigative

measures; then, based on that data, the officer made a

conclusion that the light was red at the time of the accident.

Id. at 554-55.    Here, Kang gathered data by conducting

calibration testing on the Intoxilyzer; then, based on the data

he recorded in the top half of Sworn Statements 1 and 2 and

using his training and specialized knowledge, he rendered a

conclusion that the Intoxilyzer was functioning accurately and

included this conclusion in the bottom half of Sworn Statements

1 and 2.

           As in Baker, Kang’s interpretive conclusion cannot be

characterized as a “matter observed” because it is not a “direct

observation,” a “routine recordation,” or “recorded data”

reflecting observations that are concrete and simple.            588 F.2d

at 556; Bowman, supra, § 803-3[8][D], at 8-44.          Kang’s

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conclusion therefore does not constitute a “matter observed.”17

Accordingly, the ICA and the district court erred in admitting

Sworn Statements 1 and 2 into evidence as public records under

HRE Rule 803(b)(8)(B).18

     iii. State v. Ofa Does Not Provide for a Different Result

           The dissenting opinion relies primarily on an ICA

decision, State v. Ofa, 9 Haw. App. 130, 828 P.2d 813 (1992), in

support of its position.       Initially, it is noted that the

dispositive issue in Ofa was whether the State’s failure to

include the known temperature of the solutions used to test an

Intoxilyzer rendered the resulting calibration tests

insufficient to lay a foundation for Ofa’s breath test results.

     17
            The dissent seeks to distinguish Baker by describing Sworn
Statements 1 and 2 as “routine determination[s] that a piece of equipment
works properly,” or alternatively, as “record[s] of the direct observations
of the Intoxilyzer supervisor” and thus “plainly . . . ‘matter[s] observed.’”
Dissent at 6, 8. Even assuming Kang’s testing of the Intoxilyzer may be
characterized as “routine” in the sense that HAR § 11-114-7(6) requires that
such equipment be tested for accuracy by a qualified professional “at
intervals not to exceed thirty-one days,” Kang’s statement as set forth in
the bottom half of Sworn Statements 1 and 2 is not a “direct observation[]”
or simple “determination that a piece of equipment works properly.” Dissent
at 6, 8. Rather, for the reasons described above, the statement reflects an
evaluative opinion that was based on Kang’s specialized knowledge of
Intoxilyzer calibration procedures. See HAR § 11-114-7(6) (1993), supra note
11.
     18
            Kang’s conclusion contained in Sworn Statements 1 and 2 is not
admissible under HRE Rule 803(b)(8)(C) as a “factual finding[] resulting from
an investigation made pursuant to authority granted by law” because HRE Rule
803(b)(8)(C) is restricted in criminal cases to use only against the
government and thus may not be used against Davis in this case. HRE Rule
803(b)(8)(C); see also Jhun, 83 Hawaiʻi at 477, 927 P.2d at 1360 (quoting
same).



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Id. at 139, 828 P.2d at 818.         The ICA answered this question in

the affirmative and reversed Ofa’s conviction on that basis

alone.     Id. at 141, 828 P.2d at 820.        As such, the ICA’s other

rulings in the case are dicta.          Although one of those rulings

addressed whether a log book was admissible under HRE Rule

803(b)(8)(B), it is not contrary to our decision in this case.

             In Ofa, the defendant was charged with driving under

the influence of intoxicating liquor.           Id. at 132, 828 P.2d at

815.    At trial, the State sought to introduce evidence of the

defendant’s Intoxilyzer breath test result.             Id. at 133, 828

P.2d at 816.      As foundational evidence that the relevant

Intoxilyzer was functioning accurately on the date that the

breath test was administered, the State offered into evidence a

copy of a page of a “log book” (Log) maintained by HPD.               Id. at

132-33, 828 P.2d at 815-16.         HPD criminalist Gilbert Chang, a

certified Intoxilyzer operator-supervisor, testified that

“certified operator-supervisors periodically test or calibrate

the HPD’s intoxilyzers for accuracy” and that “the date and

results of the testing for accuracy” were entered into the Log.

Id.    Chang testified that the initials “JW” appearing on the Log

signified that John Wadahara “had tested the Intoxilyzer for




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accuracy on [the noted] dates.”19         Id. at 133, 828 P.2d at 816.

Chang further testified that “the Log indicated that the

Intoxilyzer was operating accurately on May 31 and June 28,

1990.”    Id.

            Over the defendant’s objection, the trial court

admitted the Log as a public record under HRE Rule 803(b)(8)(B).

Id. at 135, 828 P.2d at 816.        Ofa raised several issues in

appealing his subsequent conviction, including that the Log

constituted hearsay and that the trial court erred in admitting

it into evidence.     Id. at 134, 828 P.2d at 816.

            The ICA concluded that “the only issue” on appeal with

respect to the admissibility of the Log was “whether the Log

[was] excludable from the public records and reports exception

to the hearsay rule as ‘matters observed by . . . law

enforcement personnel’ in a criminal case.”           Id. at 135, 828

P.2d at 817.    Thereafter, the ICA devoted its analysis to the

issue of whether the Log fell within HRE Rule 803(b)(8)(B)’s

exclusion clause.20     Id. at 135-137, 828 P.2d at 817.         There was


     19
            The Ofa opinion provides no additional information on the
contents of the Log. 9 Haw. App. at 133, 828 P.2d at 815. The ICA noted
that Wadahara did not testify in the case. Id. at 133, 828 P.2d at 816.
     20
            In determining whether the Log fell within the exclusion clause,
the ICA discussed the Log’s nonadversarial and trustworthy nature. Ofa, 9
Haw. App. at 136, 828 P.2d at 817. As in Ofa, issues of the adversarial
nature or trustworthiness of evidence proffered under the “matters observed”

                                                              (continued. . .)
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no discussion with respect to the first step of the inquiry

under HRE Rule 803(b)(8)(B) regarding whether the Log’s contents

constituted “matters observed.”        Id.   Accordingly, Ofa does not

speak to the issue in this appeal--whether evaluative opinions

and analyses constitute “matters observed.”21

            In this case, the State sought to lay a foundation for

Davis’s breath test results through a document that contained

both data and evaluative opinion.         Although the numerical data

included in the top half of Sworn Statements 1 and 2 may be

admissible under HRE Rule 803(b)(8)(B), Kang’s opinion regarding

the Intoxilyzer’s accuracy included in the bottom half is not.

(. . .continued)

subsection of the public records hearsay exception often arise under this
second part of the inquiry rather than the rule’s definitional clause. See,
e.g., United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir. 1986)
(concluding that “maintenance operator’s calibration report” of breathalyzer
machine did not fall within exclusion clause because it was a routine act of
a nonadversarial nature); United States v. Hernandez-Rojas, 617 F.2d 533,
534-35 (9th Cir. 1980) (concluding that deportation warrant with signed and
dated notation “deported to Mexico, Calexico, California” did not fall within
exclusion clause because it was a “ministerial, objective observation”).
      21
            Thus, neither the holding nor the reasoning of Ofa is “directly
applicable to this case,” dissent at 5, as Davis does not argue that Sworn
Statements 1 and 2 fall within the rule’s exclusion clause.

            However, although dicta, Ofa does provide an example of the
intersection of data, evaluative opinion, and hearsay evidence in OVUII
prosecutions in laying a proper foundation for a defendant’s breath test
results: “[b]ased on the Log and other exhibits in evidence, [the certified
Intoxilyzer operator-supervisor] gave his opinion testimony regarding the
accuracy of the Intoxilyzer.” 9 Haw. App. at 137, 828 P.2d at 817. This
combination of evidence, the Ofa court determined, was sufficient to support
the admission of the breath test results under the Hawaii Rules of Evidence.
Id.



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See Bowman, supra, § 803-3[8][D], at 8-44 (“matters observed”

falling within HRE Rule 803(b)(8)(B) do not include

“conclusions, opinions, and evaluative findings”).           Thus, Sworn

Statements 1 and 2 are not admissible hearsay under HRE Rule

803(b)(8)(B).

  iv. Use of Sworn Statements in Administrative Driver’s License
                        Revocation Proceedings

          Our determination that Kang’s evaluative conclusions

as included within the bottom half of Sworn Statements 1 and 2

do not fall within HRE Rule 803(b)(8)(B) is also consistent with

statutory provisions relating to administrative driver’s license

revocation proceedings following an OVUII arrest.           In the

administrative revocation process, which is civil in nature, the

State is specifically authorized by statute to rely on

evaluative conclusions virtually identical to those contained in

Sworn Statements 1 and 2 in this case.         See HRS § 291E-37(c)(3)

(Supp. 2012); HRS § 291E-38(g) (Supp. 2012).          Although written

statements including conclusions on an Intoxilyzer’s accuracy

are permitted in a civil process designed to expeditiously

revoke the license of the arrestee-driver, reliance on such

relaxed evidentiary procedures in criminal proceedings against

an individual facing penal sanctions is neither authorized nor

called for by time considerations.


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           Under the Hawaii Revised Statutes, administrative

driver’s license revocation procedures may be initiated

following an OVUII arrest when the arresting officer issues a

notice of administrative revocation.         HRS § 291E-33(a), (c)

(Supp. 2012).     Where the officer has administered a breath,

blood, or urine test establishing the driver’s alcohol

concentration, the relevant authority is required to immediately

forward to the director22 the “sworn statement of the person

responsible for maintenance of the testing equipment” to

establish, pursuant to HRS § 321-16123 and rules adopted

thereunder, the following information:

           (A) The equipment used to conduct the test was approved for
           use as an alcohol testing device in this State;

           (B) The person had been trained and at the time the test
           was conducted was certified and capable of maintaining the
           testing equipment; and

           (C) The testing equipment used had been properly maintained
           and was in good working condition when the test was
           conducted . . . .




     22
            See HRS § 291E-1 (2007) (defining “director” as “the
administrative director of the courts or any other person within the
judiciary appointed by the director to conduct administrative reviews or
hearings or carry out other functions relating to administrative revocation
under part III”).
      23
            See HRS § 321-161 (2010) (authorizing the department of health to
establish and administer a statewide program relating to alcohol
concentration testing for purposes of HRS chapter 291E).



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HRS § 291E-36(a), (a)(2) (2007 & Supp. 2012) (emphasis added).24

The director is then required to review the issuance of the

notice of revocation, which must include consideration of the

sworn statement regarding the working condition of the machine

at the time the breath, blood, or urine test was conducted.                 HRS

§ 291E-37(a), (c)(3) (Supp. 2012).

           If the director administratively revokes the

individual’s driver’s license, the driver may request an

administrative hearing to seek review of the decision to revoke

the driver’s license.      HRS § 291E-38(a) (Supp. 2012).         At the

hearing, the sworn statements relating to the accuracy and

condition of the testing equipment must be admitted into

evidence, and the director “shall” consider the statements


     24
            We note that the requirements for accuracy testing of breath
testing machines as set forth in HAR § 11-114-7(a) (see supra note 11) apply
to all “individuals or laboratories who collect samples for or conduct
forensic alcohol testing for the purpose of introduction of the alcohol test
results into evidence in either civil or criminal proceedings under
applicable State driving under the influence of alcohol statutes.” HAR § 11-
114-1(b) (emphasis added). This suggests that Sworn Statements 1 and 2, like
the sworn statements contemplated by the administrative driver’s license
revocation statute, are completed pursuant to the accuracy testing procedures
of HAR § 11-114-7(a). See Park v. Tanaka, 75 Haw. 271, 278-79, 859 P.2d 917,
920-21 (1993). In fact, at least with respect to the predecessor revocation
statute, Sworn Statements 1 and 2 are substantively identical to the sworn
statements used in revocation proceedings, in that the top half contains a
machine printout from the calibration testing data of the Intoxilyzer, and
the bottom half includes a pre-printed text block of the Intoxilyzer
supervisor regarding the machine’s accuracy. See Ige v. Admin. Dir. of the
Court, 93 Hawaiʻi 133, 139-40, 997 P.2d 59, 65-66 (App. 2000) (detailing
contents of sworn statements used in driver’s license revocation proceedings
under HRS chapter 286 (repealed 2000)).



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without requiring the testimony of a law enforcement officer or

other person.   See HRS § 291E-38(a) (Supp. 2012); HRS § 291E-

38(g).   However, should the individual request to “examine a law

enforcement officer or other person who made a sworn statement,”

the director is required to issue a subpoena for that person to

appear at the hearing.     HRS § 291E-38(g).      Thus, the

administrative driver’s license revocation procedures require

admission and consideration of sworn statements regarding a

breath test equipment’s accuracy and condition, while also

mandating that, upon request, the officer or other qualified

person be subpoenaed to give testimony at an administrative

hearing.

           Specifically with respect to the administrative

revocation of a driver’s license, part III of HRS chapter 291E

therefore allows for the submission of documentary evidence to

prove that breath test equipment was operating accurately at the

time that the test was administered to the individual whose

license the State seeks to revoke.        Permitting relaxed

evidentiary procedures in this civil setting is in keeping with

the purpose of the administrative revocation process itself,

which is to “provide for the public safety by establishing a

quick, administrative procedure for revoking the licenses of

drunk drivers while they are awaiting trial on criminal DUI

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charges.”    State v. Toyomura, 80 Hawaiʻi 8, 20, 904 P.2d 893, 905

(1995) (quoting Conf. Comm. Rep. No. 137, in 1990 House Journal,

at 824, 1990 Senate Journal, at 825) (analyzing predecessor

administrative driver’s license revocation procedures under HRS

§ 286-260 (repealed 2000)).       In fact, the key benefit of

administrative revocation procedures is the ability to bypass

those protections afforded to criminal defendants at trial:

            [T]he main benefit of administrative revocation is that it
            allows the State to remove a drunk driver’s license before
            the culmination of a lengthy prosecution under the criminal
            statute. Currently, a person charged with driving under
            the influence must be allowed to continue driving until he
            or she is found guilty in a court of law. This process
            takes an average of seven or eight months in Hawaii, and
            even longer, and while this process is going on, the
            dangerous driver, who quite likely is an inveterate repeat
            offender, remains on the road.

State v. Higa, 79 Hawaiʻi 1, 6, 897 P.2d 928, 933 (1995) (quoting

Conf. Comm. Rep. No. 137, in 1990 House Journal, at 824-25, 1990

Senate Journal, at 825).       Deeming sufficient a sworn statement

regarding maintenance testing on a breath or other test machine,

rather than requiring a qualified person to testify at a

hearing, is thus one way the administrative revocation process

avoids evidentiary and other procedural rules in an effort to

prevent “potentially threatening drivers” from continuing to

drive “between the time [they] are cited and their criminal

adjudication.”     Id. at 6, 897 P.2d at 933.




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          Significantly, unlike the “legitimate, nonpunitive,

and purely remedial functions” of the administrative driver’s

license revocation process, see Higa, 79 Hawaiʻi at 7, 897 P.2d

at 934, a defendant in an OVUII prosecution faces criminal

penalties and loss of the constitutional right to liberty.             See

HRS § 291E-61(b) (Supp. 2011) (providing imprisonment penalties

for the offense of operating a vehicle under the influence of an

intoxicant).   An individual subject to an OVUII prosecution is

guaranteed the protections afforded to criminal defendants by

the Hawaiʻi Constitution, the United States Constitution, and the

Hawaii Revised Statutes (which includes the Hawaii Rules of

Evidence).   Misconstruing HRE Rule 803(b)(8)(B) to allow into

evidence in an OVUII criminal prosecution out-of-court

evaluative opinions and conclusions similar to those contained

within the sworn statements deemed admissible in the civil

driver’s license revocation process would essentially allow

procedures designed specifically for a civil administrative

process to be used in a criminal trial.

   v. Davis’s Breath Test Results Lacked Sufficient Foundation

          As Professor Bowman explains in his evidence treatise,

evaluative opinions that constitute hearsay may not be admitted

into evidence under HRE Rule 803(b)(8)(B).         Bowman, supra, §

803-3[8][D], at 8-44.     Public records that include “information

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that is concrete and simple in nature” or “routine recordations

not resulting from analysis or judgment” may constitute “matters

observed” within the meaning of HRE Rule 803(b)(8)(B) and merit

admission into evidence under the rule.25         Mueller & Kirkpatrick,

supra, § 8.50, at 910; Bowman, supra, § 803-3[8][D], at 8-44.

Public records that do not constitute “matters observed” because

they include “conclusions, opinions, and evaluative findings”

will not be admissible under the public records exception.26

Bowman, supra, § 803-3[8][D], at 8-44.


     25
            Our opinion does not preclude any “document or record that
requires any sort of training or specialized knowledge” from being admitted
into evidence under HRE Rule 803(b)(8). Dissent at 9. Rather, a record
prepared using training or specialized knowledge may be admissible under the
rule provided that its contents constitute “matters observed,” in that it
does not contain conclusions, opinions, or evaluative findings. Bowman,
supra, § 803-3[8][D], at 8-44.
      26
            Though the dissent states that our decision is inconsistent with
those of other federal and state courts on “this issue,” dissent at 2, 7, it
appears that the trial courts of other jurisdictions have routinely utilized
a combination of testimony and written data to lay a foundation for
evaluative opinions and reports, thereby avoiding the precise issue in this
case. See, e.g., Best v. State, 328 A.2d 141, 142-43 (Del. 1974)
(Intoxilyzer calibration tests by state chemist introduced in conjunction
with testimony of police officer/record-keeper regarding “[the Intoxilyzer’s]
proper operation and condition at the time of [the defendant’s] arrest and
testing”); United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985) (card
containing impression of fingerprint and “notation that the fingerprint had
been ‘lifted’ from one of the wooden statuettes by Criminologist Sally Jones”
introduced in conjunction with testimony of different criminologist that the
print on the card was a match to defendant’s left thumb); People v. Black,
406 N.E.2d 23, 24-25 (Ill. App. Ct. 1980) (testimony of evidence technician
that decal affixed to breathalyzer machine “indicated that it had been
recently tested and proven accurate” was sufficient to establish machine’s
accuracy); State v. Jensen, 351 N.W.2d 29, 31, 32-33 (Minn. Ct. App. 1984)
(breathalyzer certification records introduced in conjunction with testimony
of operator who administered defendant’s breath test regarding “the
administration and the reliability of the [breath] test”).


                                                              (continued. . .)
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            In order to render evaluative opinions or conclusions

based on “matters observed,” other evidence may be introduced in

conjunction with data properly admitted under HRE Rule

803(b)(8)(B).27    This additional evidence may come in a variety


(. . .continued)

             Further, the dissent has not identified a case in which this
specific issue--i.e., whether evaluative opinions and conclusions constitute
“matters observed” within the meaning of HRE Rule 803(b)(8)(B) or its state
or federal analogs--has been explicitly considered, reasoned, and ruled on in
the affirmative. See, e.g., State v. Smith, 675 P.2d 510, 511-12 (Or. Ct.
App. 1984) (concluding that “two documents certifying that the breathalyzer
equipment was in proper operating order” were admissible into evidence under
state law public records exception but declining without explanation to
address defendant’s argument that the two documents “encompass[ed] expert
testimony”).
      27
            To the extent that the dissent suggests that such a combination
of evidence is inconsistent with 24 years of practice in Hawaiʻi courts,
dissent at 2, we note that in numerous cases, the State has laid a foundation
for test results in OVUII prosecutions in part by introducing testimony of a
qualified Intoxilyzer supervisor or other professional familiar with test
equipment calibration procedures. See, e.g., State v. Werle, 121 Hawaiʻi 274,
278, 218 P.3d 762, 766 (2009) (testimony from licensed medical technologist
that he tested the defendant’s blood for alcohol concentration and
“outlin[ing] his training and experience in the use and calibration of . . .
the device he used to test [the defendant’s] blood sample” (internal
quotations omitted)); State v. Kemper, 80 Hawaiʻi 102, 104-05, 905 P.2d 77,
79-80 (App. 1995) (testimony from qualified HPD criminalist that she
calibrated the Intoxilyzer and that “the test was performed properly and that
the results are accurate” (internal quotations omitted)); State v. Young, 8
Haw. App. 145, 148, 795 P.2d 285, 288 (1990) (testimony from HPD certified
Intoxilyzer operator-supervisor that, based on her accuracy checks, the
Intoxilyzer was working “properly and accurately” on the date it was
administered to the defendant); State v. Ofa, 9 Haw. App. 130, 132-33, 828
P.2d 813, 815-16 (1992) (testimony from HPD criminalist and certified
Intoxilyzer operator-supervisor that calibration checks of an Intoxilyzer
were periodically performed and that results were reflected in a
concurrently-admitted record book); State v. Matsuda, 9 Haw. App. 291, 293,
836 P.2d 506, 507 (1992) (testimony from “HPD evidence specialist” and
certified Intoxilyzer supervisor that “he tested the Intoxilyzer . . . for
accuracy” prior to and following its use on the defendant); State v.
Hamasaki, 7 Haw. App. 542, 542, 783 P.2d 1235, 1236 (1989) (testimony from
HPD criminalist and certified Intoxilyzer operator-supervisor that he
conducted calibration testing of the Intoxilyzer).



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of forms, and our decision in this case will not require the

State in every OVUII prosecution to bring to the trial the

Intoxilyzer supervisor who conducted the machine’s most recent

calibration testing.     In this particular case, however, no

admissible evidence was adduced in conjunction with the

calibration testing data to establish the Intoxilyzer’s

accuracy, therefore rendering Davis’s breath test results

inadmissible for lack of the requisite foundation.

         B. Admissibility under Business Records Exception,
                         HRE Rule 803(b)(6)

           The State also sought to admit Sworn Statements 1 and

2 as business records under HRE Rule 803(b)(6) (1993 & Supp.

2002).   “Although ordinarily the proponent of hearsay is

entitled to ‘shop around’ among the exceptions, the public

records exception of [the Federal Rules of Evidence] preempts

this subject matter [of business records] and forecloses access

to business records admissibility.”        Addison M. Bowman, Hawaii

Rules of Evidence Manual § 803-3[6][F], at 8-41 (2016-2017 ed.).

Thus, it is generally understood that records excluded by HRE

Rule 803(b)(8) cannot be admitted through the “back door” as a

business record under HRE Rule 803(b)(6).         See United States v.

Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) (“The government

may not circumvent the specific requirements of [Federal] Rule

[of Evidence] 803(8) by seeking to admit public records as
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business records under Rule 803(6).        Nor may the government

attempt to combine Rules 803(6) and 803(8) into a hybrid rule to

excuse its failure to comply with either.”); United States v.

Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002) (“When

public records are used against a defendant in a criminal

prosecution, the public records exception is the exclusive

applicable hearsay exception.”); United States v. Cain, 615 F.2d

380, 382 (5th Cir. 1980) (“[S]tatements inadmissible as public

agency reports under Rule 803(8) may not be received merely

because they satisfy Rule 803(6) . . . section (6) does not open

a back door for evidence excluded by section (8).”).

          As discussed above, Sworn Statements 1 and 2 were not

admissible as public records under HRE Rule 803(b)(8).            The

State may not “circumvent the requirements” of HRE Rule

803(b)(8)(B) by seeking their admission under HRE Rule

803(b)(6).   Bowman, supra, § 803-3[6][F], at 8-41; Weiland, 420

F.3d at 1074 (indicating that the business records hearsay

exception is not an avenue for admitting evidence that is

inadmissible under the public records exception).           Therefore,

Sworn Statements 1 and 2 were not admissible as business records

under HRE Rule 803(b)(6).




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                         IV.      CONCLUSION

          Sworn Statements 1 and 2 were improperly admitted

under the public records exception, as they contained an

evaluative opinion that does not constitute a “matter observed”

within the meaning of HRE Rule 803(b)(8).         Because there was no

other evidence presented in this case as to the Intoxilyzer

calibration testing, the State failed to lay a sufficient

foundation that the Intoxilyzer was in proper working order when

the breath test was administered to Davis.         The district court

thus erred in admitting the Operator Statement (which contained

the result of Davis’s breath test) into evidence in light of the

improper introduction of the calibration records.           As the breath

test result was wrongly admitted, the State failed to show that

Davis’s breath alcohol concentration was .08 or more grams of

alcohol per 210 liters of breath, an essential element of the

offense of OVUII under HRS § 291E-61(a)(3).




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          Accordingly, the ICA erred in affirming the district

court’s November 29, 2012 Order and Notice of Entry of Order.

We therefore vacate the ICA’s July 29, 2015 Judgment on Appeal

and the district court’s November 29, 2012 Order and Notice of

Entry of Order and remand the case for a new trial.

Phyllis J. Hironaka                   /s/ Sabrina S. McKenna
for petitioner
                                      /s/ Richard W. Pollack
James M. Anderson                     /s/ Michael D. Wilson
for respondent




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