NO. 21259
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, ) D.C. COMPLAINT NO. 97005934
)
Plaintiff-Appellee, ) APPEAL FROM THE DISTRICT COURT
) OF THE FIRST CIRCUIT, HONOLULU
v. ) DIVISION
)
STANFORD M. ITO, )
)
Defendant-Appellant. )
________________________________)
The opinion of the court, filed on April 29, 1999 (the opinion) is hereby amended as follows:
1. Pages 3 and 4 of the opinion shall be deleted and replaced with pages 3, 4, and 4a attached to this order; and
2. At page 9, line 4 of the first double-spaced paragraph of the opinion, the word "percent" shall be deleted so that the entire paragraph reads:
As to the sufficiency of the evidence issue, the district court concluded that although Defendant's HGN test result was not sufficient to support a DUI conviction, evidence that Defendant had a 0.125 BrAC was sufficient to convict Defendant of DUI.
The Clerk of the Court is directed to incorporate the foregoing changes to the opinion.
DATED: Honolulu, Hawai`i, May 13, 1992.
At about 1:20 a.m. on January 5, 1997, Honolulu Police Department (HPD) Officer Darius Evangelista (Officer Evangelista) stopped Defendant for speeding. Upon initially approaching Defendant, Officer Evangelista did not smell any alcohol on Defendant. On a second approach, however, Officer Evangelista detected a strong odor of alcohol on Defendant's person and noticed that Defendant's eyes were red. Officer Evangelista surmised that he did not smell alcohol on his first approach because the passenger in Defendant's car was smoking. Based on his observations, Officer Evangelista ordered Defendant out of Defendant's car and had Defendant perform three field sobriety tests (FSTs): the walk-and-turn, the one-leg-stand, and the HGN.
During the one-leg-stand test, Defendant stood on one leg without raising his arms for twenty-nine seconds. In a written report documenting Defendant's performance on the FSTs, Officer Evangelista noted that Defendant "[d]id [this] test well."
Prior to administering the walk-and-turn test, Officer Evangelista explained and demonstrated the test to Defendant. Officer Evangelista instructed Defendant to take two sets of nine steps each in a straight line, making sure that the heel of the front foot touched the toes of the back foot. Officer Evangelista also directed Defendant to turn around after the first set by pivoting on the heel of one foot. Officer Evangelista observed that Defendant missed the heel-to-toe on steps seven and eight of the first set. Officer Evangelista also recorded that Defendant missed the heel-to-toe on steps four and nine of the second set. Additionally, Defendant stepped off the line and raised his arms on step four of the second set and, instead of pivoting on the heel of one foot between the first and second sets, picked up both feet and turned around.
While administering the HGN test to Defendant, Officer Evangelista observed that both of Defendant's eyes failed to follow Officer Evangelista's finger smoothly and demonstrated distinct nystagmus at the edge of Defendant's field of vision. Officer Evangelista candidly admitted, however, that in administering the HGN test, he usually did not check for the onset of nystagmus at an angle of forty-five degrees, one of the components of the test, and failed to do so in this instance. Nevertheless, based on Defendant's overall performance on the FSTs, Officer Evangelista arrested Defendant for DUI.
At the police station, Defendant elected to take the Intoxilyzer(1) test, which measured his breath alcohol concentration level (BrAC) at 0.125.
Defendant and the State also stipulated that: (1) HPD had trained Officer Evangelista to administer the FSTs, including
1. 1/ The Intoxilyzer is a machine that measures the concentration of alcohol in a breath sample (BrAC). 2 R. Erwin, Defense of Drunk Driving Cases § 21.01, at 21-2 to 21-3 (3d ed. 1999) (Defense of Drunk Driving); see also State v. Gates, 7 Haw. App. 440, 777 P.2d 717 (1989). The Intoxilyzer then reports either an assumed blood alcohol concentration (BAC) (which is achieved by multiplying the individual's BrAC by a conversion factor, a partition ratio of 2100 to 1), Gates, 7 Haw. App. at 443, 777 P.2d at 719, or a BrAC which is "usually in terms of grams [of] alcohol per 210 liters of breath, such as 0.10g/210L." 2 Defense of Drunk Driving § 21.01, at 21-2 to 21-3. "The assumption is that a BrAC of 0.10g/210L is equivalent to a BAC of 0.10 [percent]." Id. at 21-3. Strictly speaking, expressing BAC as a percentage is not truly accurate because what is being expressed as a percentage is really a comparison of weight to volume. City of Monroe v. Robinson, 316 So. 2d 119, 121 n.1 (La. 1975); 2 Defense of Drunk Driving § 15.02[3], at 15-9. The practice of expressing BAC as a percentage of weight per volume (% w/v) stems from "[a] laboratory practice widely followed in this country and elsewhere for expressing solution strengths when small quantities of a liquid or a solid are dissolved in a relatively large amount of a liquid[.]" City of Monroe, 316 So. 2d at 121 n.1; Commonwealth v. Brooks, 319 N.E.2d 901, 906 (Mass. 1974).
The reason for this is that measurement by weighing is the only accurate way to quantify extremely small amounts of substance. Expensive analytical balances in laboratories . . . are capable of precisely determining weight even down to the fraction of a milligram. For the liquid, however, the most convenient method of measurement is volumetric.
The most straightforward method of expressing solution strength is to put it simply in terms of number of milligrams of the substance per milliliter of solution--or, if more convenient, per 100 milliliters of solution.
City of Monroe, 316 So. 2d at 121 n.1 (internal quotation marks omitted).