STATE OF HAWAII v. WERLE

No. 28653 (November 3, 2009)

Opinion pdf

OPINION OF THE COURT BY DUFFY, J.

On July 29, 2009, this court accepted a timely application for a writ of certiorari filed on June 22, 2009 by petitioner/defendant-appellant William Edward Werle (Werle) seeking review of the March 25, 2009 judgment of the Intermediate Court of Appeals (ICA) based on its March 11, 2009 Memorandum Opinion (Mem. Op.) in State v. Werle, No. 28653. The ICA's Mem. Op. affirmed the July 12, 2007 judgment of conviction and sentence of the district court of the second circuit (district court) for Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawai'i Revised Statutes (HRS) § 291E-61 (a) and/or (d) (Supp. 2006).

In his Application, Werle presents the following question: "Whether the ICA gravely erred, in violation of  Werle's rights to due process and fair trial, by affirming the trial court's admission into evidence of his purported blood alcohol test result, despite five evidentiary foundational defects." Oral argument was held on September 3, 2009.

The "five foundational defects" alleged by Werle are that

the State did not present evidence from a duly qualified expert that

(1) the "radiative energy attenuation" method (REA) was a "valid technique" for testing blood alcohol levels;

(2) [the] REA had been approved by the DUI Coordinator, as required by BAR § 11-114-22;

(3) the [Abbott AxSYM] used a blood alcohol testing procedure approved by the DUI Coordinator;

(4) the "dilution method" [the medical technician] employed when analyzing Werle's blood alcohol result (dilution) was reliable; and

(5) the "extrapolation method" [the lab technician] applied to the [Abbott AxSYM]'s blood alcohol reading of the diluted sample (extrapolation) was reliable.

Based on the following, we agree with Werle that there was an insufficient foundation laid for admission into evidence of his blood alcohol test result. Accordingly, we reverse Werle's conviction for OVUll. [footnotes omitted]