Opinion of the Court by
RECKTENWALD, J.
Petitioner/defendant-appellant Zachariah I. Fitzwater was convicted of excessive speeding in violation of Hawaii Revised Statutes (HRS) § 291C-105(a)(l) (2007).1 At Fitzwa-ter’s trial in the District Court of the First Circuit (district court),2 a Honolulu police officer testified that he followed Fitzwater’s motorcycle after he observed Fitzwater traveling at what appeared to be a high rate of speed. According to the officer, the speedometer in his police vehicle indicated that Fitzwater was traveling 70 miles per hour in an area where the speed limit was 35 miles per hour. The officer further testified that a “speed check” had been conducted to determine the accuracy of the police vehicle’s speedometer about five months before the incident involving Fitzwater. Over the objection of Fitzwater’s counsel, a card purporting to document the results of that speed check was admitted into evidence, and the officer was allowed to testify that the results of the speed check showed that the speedometer was accurate.
The Intermediate Court of Appeals (ICA), in a Summary Disposition Order (SDO), concluded that the district court did not err in admitting the speed check evidence. State v. Fitzwater, No. 28584, 120 Hawai'i 383, 205 P.3d 648, 2009 WL 1112602, at *1-2 (App. Apr. 27, 2009). Fitzwater then timely sought review in this court.
This appeal requires us to resolve several issues relating to the admission of the speed check evidence. We hold that although the speed check was conducted with the understanding that its results would likely be used in the prosecution of speeding cases, the card could nevertheless qualify as a record of regularly conducted activity (“business record”) under Hawaii Rules of Evidence (HRE) Rule 803(b)(6), quoted infra. However, there was insufficient foundation to admit the card as a business record under that rule, and there was additionally insufficient foundation regarding the reliability of the speed check. Finally, we reject Fitzwater’s argument that the admission of the speed check evidence violated his right to confrontation under the Sixth Amendment of the United States Constitution.
Absent the speed check evidence, there was insufficient evidence to establish the accuracy of the speedometer in the officer’s vehicle, and to support Fitzwater’s conviction for excessive speeding in violation of HRS § 291C-105(a)(l). Accordingly, we vacate the judgments of the ICA and the district court. However, because there was sufficient evidence to establish that Fitzwater was speeding in violation of HRS § 291C-102(a)(1),3 a lesser included non-criminal traffic infraction, we remand for entry of a judgment that Fitzwater violated that section.
I. BACKGROUND
A. Proceedings in the District Court
On May 9, 2007, the State of Hawaii orally charged Fitzwater with “driving a motor vehicle at a speed exceeding the (indiscernible) speed or (indiscernible) speed limit [by] 30 miles per hour or more in violation of Hawaii Revised Statutes 291C-105(A)(1), driving 70 in a 35 mile-per-hour-zone.” Fitzwater pleaded not guilty.
Officer Neal Ah Yat testified that around 11:20 p.m. on the evening of January 24, 2007, he was patrolling Kamehameha High[358] way near Waipio Uka Boulevard in his blue and white police vehicle. He was parked in a driveway “shooting laser” when four motorcycles passed him “at an extremely high rate of speed.” He was not able to get a laser reading on the motorcycles because they were too small, and because there were trees in the way. Ah Yat then attempted to catch up to the motorcycles “to pace [them].” Three of the motorcycles sped up and took off, and Ah Yat testified that it was too dangerous for him to attempt to follow them. He followed the fourth motorcycle, which was being driven by Fitzwater, maintaining a distance of approximately six car lengths directly behind him at a speed of 70 miles per hour for approximately two-tenths of a mile. He checked his speedometer at least three times to confirm that he was traveling at 70 miles per hour. As he was pacing Fitzwater, they passed a 30-mile-per-hour sign and a 35-mile-per-hour sign. Ah Yat stopped Fitzwa-ter and cited him “for excessive speeding, 70 in a 35, as well as no insurance and no license.”4 When Ah Yat informed Fitzwater why he had stopped him, Fitzwater stated that he was “just trying to keep up” with the other motorcycles.5
Ah Yat testified a speed check was conducted on his police vehicle by “Jack’s Spee-do” in August of 2006, although he wasn’t sure of the exact day it was done. He testified that a speed cheek “calibrated the actual speed of the ear with the speedometer.” He stated that the speed is calibrated so that “we know that our speedometers are accurate, and when we pace vehicles at a certain speed, we know for sure that the vehicle is going that speed.” He said speed checks are “taken care of by the vehicle maintenance section [ (VMS),]” which “take[s] the vehicle to the shop[.]” The Deputy Prosecuting Attorney (DPA) asked him if “the speed check [is] conducted in the regular course of maintaining HPD vehicles[,]” to which he responded “[y]es.” Ah Yat did not testify about how the checks are done. He testified that they are conducted once a year, and are good for one year. The result of a speed check is recorded “[o]n a card that is given and assigned to each vehicle that shows that at whichever speed it’s tested, the vehicle is actually going what the speedometer says it is.”
When the DPA asked Ah Yat what the result of the speed check on his vehicle was, defense counsel objected on the ground that the information on the speed check card was inadmissible hearsay. The court overruled the objection based on State v. Ing, 53 Haw. 466, 497 P.2d 575 (1972). Defense counsel then argued that Ing:
has been qualified substantially by Crawford v. Washington, [541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)], as well [as by] the Hawaii companion case, State v. Grace, [107 Hawai'i 133, 111 P.3d 28 (App.2005)], that new foundation requirements imposed by [Crawford ] and [Grace ] are not based upon any court rules and/or the Hawaii Rules of Evidence, but are constitutional.
[[Image here]]
We argue that the (indiscernible) now requires exclusion of any testimony or statement made by a declarant who is not here to testify (indiscernible) another witness, that absent (indiscernible) statement cannot be elicited from the witness (indiscernible) consequence unless the prosecution shows that first, declarant is quote, unquote unavailable, and there’s no (indiscernible) cross-examine.
Although Crawford does not (indiscernible), [Grace] adopted the test proposing Crawford by the National Association of Defense Lawyers (indiscernible) as testimonial (indiscernible) pertinent question is whether an objective observer would reasonably expect the statement to be available for use in prosecution.
I believe Officer Ah Yat has testified that his speed check, they’re made to pace cars so they can be used to prosecute speeding cases and Ing was decided (indis[359] cernible) requirements and that’s our objection.
The court overruled the objection, stating that it was “not gonna make any groundbreaking rules on that point until the supreme court rules on it[.]”
When the DPA again asked Ah Yat what the result of the speed check was, defense counsel objected, arguing that the State “did not lay appropriate foundation” for the evidence to be admissible as a business record under HRE Rule 803(b)(6). Defense counsel argued that because Ah Yat testified that “Jack[’s] Speedo Shop did the speed check and that somebody in the HPD took it to [the shop] and had it checked[,]” AR Yat was not a qualified witness or custodian pursuant to HRE Rule 803(b)(6). The court overruled the objection.
Ah Yat then testified that “[t]he highest speed tested [was] at 75 miles per hour [and it] show[ed] that the vehicle was indeed going 75 miles per hour.” Ah Yat testified that this meant that if he were pacing a vehicle and his speedometer showed that he was traveling at 70 miles per hour, the other vehicle was in fact traveling at 70 miles per hour.
A copy of the speed cheek card was admitted into evidence over the objection of defense counsel. Ah Yat identified the card as belonging to his vehicle because it bore his HPD vehicle number. Ah Yat testified that it was a true and accurate copy of the speed check that was on file with the HPD.
On cross-examination, Ah Yat acknowledged that he had not personally taken the vehicle to Jack’s Speedo Shop in August 2006 to have the speed check performed, but rather that a member of the HPD’s VMS (Ah Yat did not know who) had taken it in. Ah Yat did not talk to anyone at Jack’s Speedo about how the test was conducted. He did not recall when he received the speed check card, but added that “it stays with the vehicle.” Defense counsel then asked Ah Yat about the purpose of the speed card:
[defense counsel]: ... [Y]ou testified today that you did these speed checks, so you know that this speedometer in your HPD vehicle (indiscernible), correct?
[Ah Yat]: Yes.
[defense counsel]: And also because when the situation calls for it, you have to pace vehicles to judge their speed, correct?
[Ah Yat]: Yes, sir.
[defense counsel]: And then when you come to court to show, in fact, that your— you use these speed cheeks to show in court that the vehicle was acting, I mean was calibrated eorreetly as far as speed? [Ah Yat]: Yes, sir.
[defense counsel]: So, it’s reasonable to state that these speed cheeks are done and made available for use in prosecuting speeding eases?
[Ah Yat]: I’m sorry, what are you asking, sir?
[defense counsel]: Sir, is it fair to say that these speed checks for HPD vehicles, specifically [for his assigned vehicle], ... are done and are made so that officers such as yourself can use them in prosecuting speeding cases, or you use them in court?
[Ah Yat]: Oh, yes, sir, yes, sir.
[[Image here]]
In response to questions from the court, Ah Yat testified that he had been driving his HPD vehicle “[a]lmost every night” for approximately a year, that the speedometer appeared to have been operating normally during that year, and that he had never observed anything unusual about the way the speedometer operated. After a brief recross-examination of Ah Yat, the State rested.
Defense counsel moved for judgment of acquittal, arguing again that Crawford and Grace precluded the admission of the speed check, and that the State did not lay the proper foundation for it to be admitted as a business record under HRE Rule 803(b)(6). The court denied the motion, finding that “it is a requirement, a rule of [HPD] that these automobiles get speed checked once a year and that this is done by the maintenance section and that its records are kept in the regular course of business by the maintenance section, and therefore, it does qualify as a business record.”
[360] Fitzwater testified that the motorcycle belonged to a friend of his. On the evening in question, the owner of the motorcycle was intoxicated, and wanted to ride his motorcycle home. Fitzwater stopped him from doing so, and decided to take his friend’s bike home for him. Two friends joined him on the ride on their motorcycles. Fitzwater testified that he rode in front of his friends for safety reasons, because he did not have a helmet with him and they would be able to help him if he fell. While they were riding, an unidentified driver on a sports bike similar to the one Fitzwater was riding “flew by [them] going about a hundred miles an hour[.]” After that driver “buzzed [them],” a police officer pulled out and traveled behind them. Fitzwater testified that he didn’t “look at the speedometer really often[,]” but estimated that he was traveling at about 50 miles per hour in a zone that changed from a 45-to a 35-mile-per-hour speed limit. The officer then passed Fitzwater and his two friends on the left, cut in front of them, and pulled Fitzwater over. Fitzwater speculated that he was pulled over because the officer confused him with the fourth motorcyclist. He did not recall telling Officer Ah Yat that he was trying to keep up with the other motorcyclists.
The defense again moved for a judgment of acquittal on the same grounds, and the court ruled in relevant part as follows:
[T]he defense may have some argument about the Crawford, about whether or not Crawford makes inroads into State v. Ing and also some arguments about the foundation. I don’t really think that that case impacts Ing as much as defense counsel thinks because[] [t]he (indiscernible) of Ing was that devices such as speedometers are generally accurate and they can be relied upon by the courts to indicate speeds.
In fact, if you read carefully as the court seems to indicate, the speed check is merely the frosting on the eake[,] that it goes to the weight of the evidence as to beyond a reasonable doubt and it’s actually the officer’s observation of the speedometer that is the important event, important fact, operative fact in the ease.
The Court finds that this officer operated his patrol ear for well over a year, almost daily. He observed the operation of the speedometer, found that it seemed to be operating normally at all times, and on this particular day, the Court finds that when you take that into account that he paced the defendant at 70 miles an hour, that is a reasonably accurate clocking and irrespective of what Jack’s Speedo Shop may say.
Court also finds that there is this speed check and that the speed was, the speed of that officer’s vehicle was calibrated at both 65 miles an hour and at 75 miles an hour, both speeds found to be accurate. The Coui't finds that the defendant’s speed was 70 miles an hour beyond a reasonable doubt.
It appears that'there are certain things the defendant did that night that would indicate a reckless state of mind, driving without a helmet, driving without closed-toed shoes.
[[Image here]]
And the Court finds that that high rate of speed of 70 in a 35 is evidence of a reckless state of mind, which satisfies the requirement of intent in this case. I therefore[ ] find that the State has proven its case beyond a reasonable doubt. I find the defendant guilty as charged.
The court entered judgment on May 9, 2007, sentencing Fitzwater to pay a $500 fine, a $75 driver education assessment, a $25 neurotrauma fee, and a $30 criminal injuries fund fee. The court also ordered Fitzwater to complete a driver’s education improvement course and to perform 36 hours of community service. The court also suspended Fitz-water’s license for 30 days, but permitted Fitzwater to drive to and from work and the driver’s educational requirements imposed by the court during the second half of the suspension. Fitzwater timely filed a notice of appeal on June 5,2007.
B. Proceedings in the Intermediate Court of Appeals
Fitzwater raised four issues on appeal to the ICA First, Fitzwater contended that the [361] district court erred in qualifying the speed cheek card as a business record, since the card was prepared with the expectation that it would be used in litigation. Thus, according to Fitzwater, the card fell within the scope of the principle recognized by the Supreme Court in Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), which held that an accident report prepared by a railroad employee was not a business record because it was not made in the regular course of business. Fitzwater also argued that the district court erred in relying on Ing, since that decision was based on a statute that had since been repealed and replaced by HRE Rule 803(b)(6).
The State responded that “nothing about the language of H.R.E. Rule 803(b)(6) ... makes the holding in State v. Ing inapplicable to the instant issue,” and that Ing stands for the proposition that “records of the routine and regular testing of the speedometers on police vehicles [are] admissible not only to prove that such tests ha[ve] been made but also as evidence of the accuracy of the speedometers.”
Second, Fitzwater argued that even if the speed cheek card was a record of a regularly conducted activity within the meaning of HRE Rule 803(b)(6), there was insufficient foundation for its admission. The State responded that a sufficient foundation had been established by Ah Yat’s testimony pursuant to Ing and HRE Rule 803(b)(6), since Ah Yat “explained] that the speed check card was kept in the ordinary course of HPD’s business and made at or near the time of the speeding incident....”
Third, Fitzwater argued that the admission of the card violated his right to confrontation under the Sixth Amendment of the United States Constitution and article I, section 14 of the Hawai'i Constitution. He argued that although Ing had found that admission of information contained on a speed cheek card did not violate the defendant’s right to confrontation, Crawford v. Washington had effectively overruled Ing and required testimony from the person who conducted the speed check and created the card.
In response, the State argued that unlike the statements in State v. Grace, 107 Hawai'i 133, 111 P.3d 28 (2005), in which the ICA held that the statements of two witnesses to a police officer that they saw the defendant hitting his wife were testimonial in nature under Crawford, the “information contained within the speed check card was specific to the vehicle operated by Officer Ah Yat and not to any particular individual ... and a record of the results [of the speed cheek was not] made in specific anticipation of [Fitzwa-ter’s] trial.”
Finally, Fitzwater argued that the district court erred in permitting improper testimony by Officer Ah Yat. Fitzwater contended that Ah Yat gave what amounted to expert testimony about the speed check, but was not qualified to do so. Fitzwater also argued that the State failed to establish sufficient foundation to show that the speedometer had been properly calibrated, citing State v. Wallace, 80 Hawai'i 382, 910 P.2d 695 (1996) and State v. Manewa, 115 Hawai'i 343, 167 P.3d 336 (2007). The State responded that the speed cheek evidence was admissible pursuant to Ing, and that in any event Ah Yat’s testimony that he had been driving his vehicle almost every night for a year and that the speedometer had always appeared to be operating normally was itself sufficient to support the conviction.
The ICA resolved those four issues as follows in its SDO:
(1) The district court did not err by admits ting the speed check card as a business record under HRE Rule 803(b)(6).... (2) The district court did not err in overruling Fitzwater’s objection to the foundation for the speed check card as a business record. ... (3) Admission of the speed check card was not a violation of Fitzwater’s right of confrontation ... [and] (4) We decline to consider Fitzwater’s final point as he failed to object to the testimony of Officer Ah Yat on the ground that it was improper expert testimony.
State v. Fitzwater, No. 28584, 2009 WL 1112602, at *1-2.
On May 12, 2009, the ICA entered its judgment affirming the district court’s judgment.
[362] C. Application for Writ of Certiorari
In his August 3, 2009 application for writ of certiorari (Application), Fitzwater raised the following questions:
1. Whether the ICA gravely erred in holding that the speed cheek card qualified as a business record.
2. Whether the ICA gravely erred in holding that the State adduced sufficient foundation to admit the speed check card as a business record.
3. Whether the ICA gravely erred in holding that admission of the speed check card was not a violation of Fitz-water’s right of confrontation under either the Hawaii Constitution or the United States Constitution.
4. Whether the ICA gravely erred in failing [to] address, as a matter of plain error, that Officer Ah Yat’s testimony constituted improper expert testimony.
The State did not file a response.
II.STANDARDS OF REVIEW
A. Application for a Writ of Certiorari
The acceptance or rejection of an application for a writ of certiorari is discretionary. HRS § 602-59(a) (Supp.2009). In deciding whether to accept an application, this court reviews the decisions of the ICA for (1) grave errors of law or of fact or (2) obvious inconsistencies in the decision of the ICA with that of the supreme court, federal decisions, or its own decisions and whether the magnitude of such eiTors or inconsistencies dictate the need for further appeal. HRS § 602-59(b).
B. Admissibility of Hearsay
“Where admissibility of evidence is determined by application of the hearsay rule, there can only be one correct result, and the appropriate standard for appellate review is the right/wrong standard.” State v. Machado, 109 Hawai'i 445, 450, 127 P.3d 941, 946 (2006) (citation omitted); State v. Jhun, 83 Hawai'i 472, 477 & n. 4, 927 P.2d 1355, 1360 & n. 4 (1996) (applying de novo review to admissibility of evidence under HRE Rule 803(b)(8), but noting that the question of whether there was evidence of a “lack of trustworthiness” under the rule would be reviewed for abuse of discretion).
C.Right of Confrontation
“We answer questions of constitutional law by exercising our own independent judgment based on the facts of the ease. Thus, we review questions of constitutional law under the ‘righVwrong’ standax*d.” State v. Fields, 115 Hawai'i 503, 511, 168 P.3d 955, 963 (2007) (citation and ellipsis omitted).
“Violation of the constitutional x-ight to confi-ont advei’se witnesses is subject to the harmless beyond a reasonable doubt standard.” State v. Balisbisana, 83 Hawai'i 109, 113-14, 924 P.2d 1215, 1219-20 (1996). When the coui’t applies this standard, “the coui’t is required to examine the record and detei’mine whether thei’e is a l-easonable possibility that the error complained of might have contributed to the conviction.” Id. at 114, 924 P.2d at 1220 (intei-nal quotation marks and citation omitted).
III.DISCUSSION
A. The circumstances of the creation of the speed check card did not pi'eclude its admission as a business record under HRE Rule 803(b)(6)
In his Application, Fitzwater first argues that the speed check card was inadmissible as a business l'ecord under HRE Rule 803(b)(6) because it was created for the purposes of litigation, citing Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Melendez-Diaz v. Massachusetts, — U.S. -, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). For the l’easons set forth below, we i’eject this argument.
HRE Rule 803(b)(6) (1993 & Supp.2002) states in x’elevant part:
Hearsay exceptions; availability of de-clarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
[[Image here]]
(b) Other exceptions.
[[Image here]]
[363] (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made in the course of a regularly conducted activity, at or near the time of the acts, events, conditions, opinions, or diagnoses, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11) or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.
[[Image here]]
Thus, a record that is otherwise admissible under HRE Rule 803(b)(6) may nevertheless be inadmissible if “the sources of information or other circumstances indicate [aj lack of trustworthiness.” See Addison M. Bowman, Hawaii Rules of Evidence Manual § 803-3[5][D] (2008-2009 ed.) (“internal reports concerning events likely to generate litigation, offered by the organization that produces them, should be subject to routine scrutiny under rule 803(b)(6)’s untrustworthiness qualification”) (hereinafter HRE Manual)-, see also 2 Kenneth S. Broun et al., McCormick on Evidence § 288 at 312 (6th ed. 2006) (“When records are prepared in anticipation of litigation, they will often, but not always, demonstrate that lack of trustworthiness.”) (hereinafter McCormick on Evidence ).
We review the district court’s determination of untrustworthiness for abuse of discretion. See HRE Rule 803 emt. (the “preliminary determination of the trustworthiness of such records is discretionary with the court”); McCormick on Evidence § 288 at 311 (trial courts have a “discretionary power” to exclude evidence that meets the letter of the business records exception to the hearsay rule, but “which under the circumstances appear[] to lack the reliability that business records ordinarily have”); cf. Jhun, 83 Hawai'i at 478 & n. 4, 927 P.2d at 1361 & n. 4 (noting that the question of whether there was evidence of a “lack of trustworthiness” under HRE Rule 803(b)(8) would be reviewed for abuse of discretion).
The United States Supreme Court considered what constitutes a statement made “in the regular course” of business in Palmer. 318 U.S. at 111, 63 S.Ct. 477. The plaintiff, in his individual capacity and as the administrator of his wife’s estate, brought several causes of action against a railroad company after he and his wife were involved in a railroad accident. 318 U.S. at 110, 63 S.Ct. 477. Palmer, who had been an engineer of the train involved in the accident, died prior to trial, and the Supreme Court considered whether his signed statement to a representative of the railroad and state public utility commission subsequent to the accident was admissible as a “writing or record ... made in ... the regular course of such business[.]” Id. at 111 n. 1, 63 S.Ct. 477. The Supreme Court, interpreting a federal statute that allowed the admission of business records, held that the report was not made “in the regular course” of business and was inadmissible hearsay, stating that:
[The report] is not a record made for the systematic conduct of the business as a business. An accident report may affect that business in the sense that it affords information on which the management may act. It is not, however, typical of entries made systematically or as a matter of routine to record events or occurrences, to reflect transactions with others, or to provide internal controls.
[[Image here]]
In short, it is manifest that in this ease those reports are not for the systematic conduct of the enterprise as a railroad business. Unlike payrolls, accounts receivable, accounts payable, bills of lading and the like[,] these reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating, not in railroading.
Id. at 113-14, 63 S.Ct. 477.
Fitzwater argues that Ah Yat’s agreement that “it’s reasonable to state that these speed cheeks are done and made available for use in prosecuting speeding cases” means that the speed check card was prepared in anticipation of litigation like the report in Palmer, and thus it should not be admissible under [364] HRE Rule 803(b)(6). However, the circumstances of the creation of the speed check card here are quite different from those in Palmer and other cases in which documents have been held inadmissible as business records. Such documents were found to be inadmissible because they were created in response to a historical occurrence, and in anticipation of litigation on that specific incident. Since they were created with the motivation of prevailing against a particular party, their trustworthiness was inherently questionable. See Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204-05 & n. 2 (4th Cir.2000) (accident report was not admissible as a business record even if prepared by an outside investigator because the primary motive for creating the report was to prepare for litigation of this particular case, and documents prepared for use in specific litigation are “dripping with motivations to misrepresent”) (citation omitted); Timberlake Const. Co. v. U.S. Fidelity & Guar. Co., 71 F.3d 335, 336, 342 (10th Cir.1995) (trial court erred in admitting letters that were sent by a party in an insurance coverage dispute that arose after a fire at a Wal-Mart store; appeals court observes that the letters “have all the earmarks of being motivated and generated to further [the party’s] interest, with litigation actually not far around the corner”); Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir.2001) (upholding the trial court’s refusal to admit business correspondence which constituted legal “posturing” drafted by lawyers in anticipation of litigation); Hardy v. State, 71 S.W.3d 535, 537 (Tex.App.2002) (in a case involving theft of hydraulic pumps, the court held that a letter from the pump manufacturer to a local district attorney issued on request from police officers confirming that the manufacturer had sold the pumps was not a business record because “the document was created solely for the purpose of prosecuting criminal charges against appellant”).
Thus, the speed check card at issue here is distinguishable from the accident report in Palmer and the documents discussed in the foregoing cases. While those documents were created solely for the purposes of litigation in a particular case, the speed check card here was not created for use in a particular dispute. Rather, the speed check card is more akin to documents that reflect the results of regularly conducted tests, which have been held to be admissible as business or government records even if they are frequently used in litigation. See State v. Ofa, 9 Haw.App. 130, 135-36, 828 P.2d 813, 816-17 (1992) (evidence of intoxilyzer log which reflected “testing of the Intoxilyzer for accuracy on the specified dates constituted a record of routine, nonadversarial matters made in a nonadversarial setting” and was therefore admissible as a government record under HRE Rule 803(b)(8)); State v. Ali, 679 N.W.2d 359, 367 (Minn.Ct.App.2004) (in a speeding case, the court held that records certifying the accuracy of the officer’s laser gun qualified as business records even though the officer testified that the certificates were issued to police officers to use in later court proceedings because the officer also testified “that the certification document was created in the regular course of the department’s business to ensure that the laser is accurately measuring speed and meeting the manufacturer’s specifications ....”) (internal quotations omitted); Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471, 476 (Ct.App.2006) (calibration and maintenance records of breath-testing machine fell within the business records exception “because [they] contain factual memorializations generated by a scientific machine, and the records are prepared by technicians who are not proxies of police investigators and have no demonstrable interest in whether the certifications produce evidence that is favorable or adverse to a particular defendant ....”) (internal quotations and citations omitted).
Although Ah Yat testified that speed check cards were created with the understanding that they would be used in prosecuting speeding cases, the card at issue here was created in a non-adversarial setting about five months prior to the alleged speeding incident, and was not created for the specific purpose of prosecuting Fitzwater. Thus, the circumstances of its creation did not preclude its admission as a business record under HRE Rule 803(b)(6).
[365] Melendez-Diaz is consistent with this analysis. Melendez-Diaz involved a narcotics prosecution, in which the state introduced' sworn statements from laboratory analysts which stated the weight of the substances recovered during the investigation of the defendant and confirmed that they contained cocaine. 129 S.Ct. at 2530-31. Citing Palmer, the Court noted that “[documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status ... [b]ut that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538. The court observed that the affidavits would not qualify as traditional “official or business records,” id., noting that the analysts had “ereate[d] a record for the sole purpose of providing evidence against a defendant” and that the records had been “prepared specifically for use at petitioner’s trialt.]” Id. at 2539-40.
Thus, the circumstances in Melendez-Diaz were different from those here, where the document was not created specifically for the prosecution of Fitzwater. We therefore conclude that a speed cheek card can be properly admitted into evidence as a business record if the proper foundation is laid.
B. The State did not establish a sufficient foundation to admit the speed check card as a business record under HRE Rule 803(b)(6)
At trial, Fitzwater objected to the admission of Ah Yat’s testimony about the results of the speed cheek, and to the admission of the speed cheek card itself. Fitzwa-ter argued that this evidence was hearsay, and that there was insufficient foundation for its admission since Ah Yat was not a “qualified witness” who could properly authenticate the card as a business record under HRE Rule 803(b)(6). The district court admitted the testimony and the card over Fitzwater’s objection.
In his application to this court, Fitzwater notes, inter alia, that Ah Yat did not take the vehicle to the shop, was not present when the card was created, and had no personal knowledge about the calibration testing.
In order for a record to be admissible under HRE Rule 803(b)(6), the proponent must establish a sufficient foundation. Specifically,
[t]he proponent must establish (1) that the record evidences “acts, events, conditions, opinions, or diagnoses”; (2) that the record was made in the course of a regularly conducted activity; and (3) that the record was made “at or near the time” of the acts or events that are recorded.
HRE Manual § 803-3[5][B]; see HRE Rule 803(b)(6).
Furthermore, “[t]he record must also survive the discretionary untrustworthiness exclusion of the rule.” HRE Manual § 803-3[5][B],
The necessary foundation can be established “by the testimony of the custodian or other qualified witness, or by certification that complies with rule 902(11)