State v. Botelho

231 P.3d 1009

• Court: Hawaii Intermediate Court of Appeals
• Decided: June 22, 2010
• Docket: 30019
• Status: Published

Opinion

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
WAYNETTE W. BOTELHO, Defendant-Appellant.

No. 30019.

Intermediate Court of Appeals of Hawaii.

June 22, 2010.

On the briefs:

Jennifer D.K. Ng, Deputy Public Defender, for Defendant-Appellant.

Delanie D. Prescott-Tate, Deputy Prosecuting Attorney, City and County of Honolulu, for Plaintiff-Appellee.

SUMMARY DISPOSITION ORDER

FUJISE, Presiding Judge, LEONARD and REIFURTH, JJ.

Defendant-Appellant Waynette W. Botelho (Botelho) appeals the judgment, entered on July 1, 2009, in the District Court of the First Circuit, `Ewa Division (district court).^[1]

Botelho was convicted of Excessive Speeding, in violation of Hawaii Revised Statutes (HRS) § 291C-105 (2007 and Supp. 2009).

On appeal,^[2] Botelho contends the district court erred by (1) denying her Motion to Compel and (2) convicting her based on insufficient evidence to establish the accuracy of the laser gun in accordance with State v. Assaye, 121 Hawai'i 204, 216 P.3d 1227 (2009). The State agrees that there was insufficient foundation for the laser gun reading under Assaye.

Based on our review of the evidence presented, we conclude there was insufficient evidence that the laser gun was tested according to the manufacturer's recommended procedures in order to establish sufficient foundation for the laser gun reading. Assaye, 121 Hawai'i at 214, 216 P.3d at 1237. Without this evidence, there was insufficient evidence to support Botelho's conviction for Excessive Speeding. We need not address Botelho's other point of error.

Therefore,

IT IS HEREBY ORDERED that the judgment, entered on July 1, 2009, in the District Court of the First Circuit, `Ewa Division is reversed.

NOTES

[1] The Honorable Faye M. Koyanagi presided.

[2] At trial, Botelho objected to the evidence of the laser gun's speed reading.