## Facts

- Raymond S. Davis was charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII) based on an alleged March 3, 2012 incident.
- At a bench trial, the State proceeded under HRS § 291E-61(a)(3), requiring proof that Davis operated or controlled a vehicle with a breath-alcohol concentration of .08 or more.
- The State introduced Davis’s Intoxilyzer 8000 breath-test result and sought to prove its reliability by showing the instrument was in proper working order at the time of testing.
- Instead of calling the Intoxilyzer supervisor who tested and verified the instrument, the State offered two Intoxilyzer Supervisor’s Sworn Statements describing prior checks and asserting the instrument was in “proper working order” and produced “accurate” measurements.
- Over Davis’s objection, the district court admitted the sworn statements under the public records hearsay exception, HRE Rule 803(b)(8), and convicted Davis.
- The Intermediate Court of Appeals affirmed; the Hawaiʻi Supreme Court granted certiorari.

## Issues

1. Whether Intoxilyzer Supervisor’s Sworn Statements asserting the Intoxilyzer was in proper working order were admissible under HRE Rule 803(b)(8) as public records.
2. If the sworn statements were inadmissible, whether the remaining evidence established a sufficient foundation that the Intoxilyzer was working properly to support a conviction under HRS § 291E-61(a)(3).

## Decision

- The Hawaiʻi Supreme Court held the sworn statements were inadmissible under HRE Rule 803(b)(8) because they contained evaluative opinions (e.g., “proper working order,” “accurate”), not merely “matters observed” within the rule’s scope.
- The Court held that, without the sworn statements, the State failed to lay an adequate foundation that the Intoxilyzer was in proper working order when Davis was tested.
- Because the breath-test result lacked a proper evidentiary foundation, the State failed to prove an essential component of the per se OVUII charge under HRS § 291E-61(a)(3).
- The Court vacated the conviction and remanded for further proceedings.

## Legal Principles

- Under HRE Rule 803(b)(8), public records are admissible for agency activities and certain matters observed pursuant to a legal duty to report, but the exception does not extend to evaluative conclusions offered to prove technically significant facts.
- Assertions that a scientific testing instrument was in “proper working order” and produced “accurate” measurements constitute evaluative opinion when offered to establish reliability, and are not admissible as “matters observed” under HRE Rule 803(b)(8).
- To admit breath-test results in an OVUII prosecution, the State must establish an evidentiary foundation for reliability, including proof the instrument was in proper working order at the time of the defendant’s test.
- When foundational proof for the breath-test result is absent or inadmissible, the breath-test result cannot support proof beyond a reasonable doubt of the per se alcohol element under HRS § 291E-61(a)(3).

## Conclusion

The Hawaiʻi Supreme Court ruled that Intoxilyzer supervisor sworn statements containing evaluative assertions about accuracy and proper operation are not admissible as public records under HRE 803(b)(8); without admissible proof the instrument was working properly, the breath-test result lacked foundation and the OVUII per se conviction was vacated and remanded.


State v. Davis, 140 Haw. 252, 400 P.3d 453 (Haw. 2017)