State v. Fitzwater

Opinion

LAW L!BWAF~§Y

NO. 28584

IN THE SUPREME COURT OF THE STATE OF HAWAITf

sTATE 0F HAwA1‘I, m; Respondent/Plaintiff-Appellee §§ §§ ` =u vs v §§ f ZACHARIAH I. FITZWATER, ¢ §§ 53 §§ Petitioner/Defendant-Appellant §§%: § §§ al ~ 5 3 @

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (HPD TRAFFIC NO. lDTC-07-O20562)

ORDER OF AMENDMENT (By: Acoba, J.)

The concurring and dissenting opinion by Acoba, J , appended to the opinion of the court filed on March 3, 20lO, is

(deletions are bracketed and additions are

amended as follows

double underscored): Lines 16-20 from the top of page 25: at [353-54] 4l2,

[(stating that “an expert’s

910 P.2a at [346-473 7 5 correct calibration of his

assumption regarding the

measuring device” constitutes inadmissible hearsay and prosecution did not call the “manufacturer’s service

representative to testify to calibration of the balance”)] (holding that “prosecution failed to lay a sound factual

‘balance was accurate’” because

foundation that the “no reliable evidence showing [it1 was in proper

there was working order” where “1t[he service representative did not

testify at trial regarding his calibration of the balance”).

The Clerk of the Court is directed to incorporate the

foregoing changes in the original concurring and dissenting opinion by removing page 25 and replacing it with the page attached hereto and take all necessary steps to notify the publishing agencies of these changes.

DATED: Honolulu, Hawafi, April 5, 20lO.

a-»

_! W Associate Justice

***F0R PuBLIcATIoN 1N wEsT's HAwAf1 REPoRTs AND PAcIFIc REP0RTER***

attenuation] chemical testing procedure”); Assaye, 121 HawaFi at 213, 216 P.3d at 1236 (2009) (holding that no proper foundation was laid for admission of laser gun speed reading because the record did not indicate that “tests the [officer] testified to conducting [on the laser gun] were recommended procedures by the manufacturer for the purpose of showing that the laser gun was in fact opera;ing properly”); Manewa 115 Hawafi at 354, 167 P.3d at 347 (holding there was no proper foundation laid for the admission of drug weight because prosecution failed to establish that technician had any expertise in calibrating balance of drug scale or “that the balance had been properly calibrated by the manufacturer's service representatives” or “that there was an accepted manufacturer's established procedure for ‘verify[ing] and validat[ing]’ that the balance was in proper working order” and the technician followed the procedure); Wallace, 80 Hawafi at 412, 910 P.2d at 725 (holding that “prosecution failed to lay a sound factual foundation that the . . . ‘balance was accurate’” because there was “no reliable evidence showing [it] was in proper working order” where “[t]he service representative did not testify at trial regarding his calibration of the balance”).

We have indicated, as to maintenance records, that the

accuracy of the testing device may be established under the

2 business records exception to the hearsay rule. Assa e, 121

Hawafi at 214 n.8, 216 P.3d at 1237 n.8 (noting the absence of

the speed check laser gun calibration logs and testimony by

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