BREATH ALCOHOL TESTING

   HRS § 291E-61 (a)(3) states that "[a] person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle: with ... ".08 or more grams of alcohol per two hundred ten liters of breath."  The "(a)(3)" alternative method of proof does not require proof that the defendant was either physically or mentally impaired as a result of the consumption of alcohol.  If there is proof beyond a reasonable doubt, that the defendant: (1) operated or assumed actual physical control of the operation of any vehicle; and (2) had at that time, a breath alcohol concentration of .08 or more grams of alcohol per two hundred ten liters of breath"; then it is legally presumed that the defendant was under the influence of intoxicating liquor. 

   It does not matter how well that individual defendant's mental faculties were functioning.  It does not matter how well that individual defendant was able to drive.  It does not matter how well that individual defendant is able to "hold" that amount of liquor.  It will be legally presumed that the defendant was under the influence and the State will have proved its case.

   The mere fact that a defendant took a breath test, and the result was a .08 or more, does not mean that the State will be able to use that evidence at trial.  Similarly, the mere fact that there was a test result of .08 or more, even if admissible, does not necessarily mean that the defendant will be convicted. 

   First, the breath test was probably done with an Intoxilyzer 5000.  The Intoxilyzer 5000 is a breath testing instrument that is approved for use in the State of Hawaii because it generally produces results that are quite accurate.  However, it is not a perfectly accurate measuring device.  It has an inherent margin of error of .005.  This means that a breath sample that is measured as .084 could actually have been as high as .089, or as low as .079.  Consequently, evidence that the result of the test was .084, or below, does not prove beyond a reasonable doubt that the actual alcohol content of the sample was .08 or more. 

    Second, the focus of the (a)(3) portion of the statute is on the amount of alcohol that was in the defendant's breath at the time the vehicle was being operated, not at the time the test was being taken.  There is usually a period of at least an hour between the time that the defendant is stopped, and the time that the breath test is administered.  Breath tests are never administered while the defendant is operating the vehicle.  The result of a breath test administered after the defendant is no longer operating the vehicle is merely "competent evidence that the defendant was under the influence of intoxicating liquor at the time of the alleged violation (i.e. while the defendant was operating the vehicle)."

     A breath alcohol test result of less than .08 requires that the ADLRO "... or the arresting agency shall immediately return the arrestee's license along with a certified statement that administrative revocation proceedings have been terminated with prejudice."  See HRS § 291E-35.  However, a test result of less than .08 is not a complete defense in a criminal case.  The State can still proceed against the defendant under the (a)(1) alternative method of proof (i.e. proving that the defendant had impaired mental faculties, or an impaired ability to care for himself/herself and to guard against casualty).  See HRS § 291E-61(a)(1).  In a close case (e.g a .079 or a .078) the State can attempt to prove an (a)(3) case by arguing that the defendant's breath alcohol content decreased during the period of time between the driving and the taking of the test.

    HRS §291E-3 states:

Evidence of intoxication. (a) In any criminal prosecution for a violation of section 291E-61 or in any proceeding under part III:

(1) .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of the person's blood;

(2) .08 or more grams of alcohol per two hundred ten liters of the person's breath; or

(3) The presence of one or more drugs in an amount sufficient to impair the person's ability to operate a vehicle in a careful and prudent manner,

within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person's blood, breath, or urine shall be competent evidence that the person was under the influence of an intoxicant at the time of the alleged violation.

(b) In any criminal prosecution for a violation of section 291E-61, the amount of alcohol found in the defendant's blood or breath within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the defendant's blood or breath shall be competent evidence concerning whether the defendant was under the influence of an intoxicant at the time of the alleged violation and shall give rise to the following presumptions:

(1) If there were .05 or less grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 or less grams of alcohol per two hundred ten liters of defendant's breath, it shall be presumed that the defendant was not under the influence of alcohol at the time of the alleged violation; and

(2) If there were in excess of .05 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .05 grams of alcohol per two hundred ten liters of defendant's breath, but less than .08 grams of alcohol per one hundred milliliters or cubic centimeters of defendant's blood or .08 grams of alcohol per two hundred ten liters of defendant's breath, that fact may be considered with other competent evidence in determining whether the defendant was under the influence of alcohol at the time of the alleged violation, but shall not of itself give rise to any presumption.

(c) Nothing in this section shall be construed as limiting the introduction, in any criminal proceeding for a violation under section 291E-61 or in any proceeding under part III, of relevant evidence of a person's alcohol concentration or drug content obtained more than three hours after an alleged violation; provided that the evidence is offered in compliance with the Hawaii rules of evidence. [L 2000, c 189, pt of §23]

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