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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,

Respondent/Plaintiff-Appellee,

vs.

RAYMOND S. DAVIS,

Petitioner/Defendant-Appellant.

SCWC-12-0001121

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-12-0001121; CASE NO. 1DTA-12-01623)

MAY 15, 2017

McKENNA, POLLACK, AND WILSON, JJ., AND RECKTENWALD, C.J., 

DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

OPINION OF THE COURT BY POLLACK, J.

This case concerns the admissibility of two

Intoxilyzer Supervisor’s Sworn Statements to prove that the 

Intoxilyzer used to test Raymond S. Davis’s breath alcohol 

content was in proper working order. The State relied on these 

out-of-court statements in establishing the reliability of

Davis’s breath alcohol test results, which in turn served as a 

Electronically Filed

Supreme Court

SCWC-12-0001121

15-MAY-2017

08:12 AM
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basis for his conviction for the offense of operating a vehicle 

under the influence of an intoxicant. We consider whether the 

Intoxilyzer Supervisor’s Sworn Statements were admissible given 

the facts of this case under the Hawaii Rules of Evidence.

I. BACKGROUND

The State of Hawaiʻi filed a complaint in the District 

Court of the First Circuit (district court), charging that, on 

March 3, 2012, Raymond S. Davis committed the offense of 

Operating a Vehicle Under the Influence of an Intoxicant 

(OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E61(a)(1) and/or (a)(3) (Supp. 2011).

1 At the commencement of the

bench trial,2 the State orally arraigned Davis only under HRS § 

291E-61(a)(3) for operating or assuming actual physical control 

 

1 HRS § 291E-61(a) provides in relevant part:

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:

(1) While under the influence of alcohol in an amount 

sufficient to impair the person’s normal mental 

faculties or ability to care for the person and guard 

against casualty; [or]

. . . .

(3) With .08 or more grams of alcohol per two hundred 

ten liters of breath . . . .

HRS § 291E-61(a) (Supp. 2011).

2 The Honorable Shirley Kawamura presided.
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of a vehicle upon a public way, street, road, or highway with 

.08 or more grams of alcohol per 210 liters of breath. Davis 

entered a plea of not guilty to the charge.

The State’s first witness was Officer Russell 

Maeshiro, who testified that on March 3, 2012, around 2:10 a.m., 

he stopped Davis’s car after observing Davis weave in and out of

marked lanes without using his blinkers or hand signals. 

Officer Maeshiro approached the driver’s side of the vehicle and 

observed that Davis had red, bloodshot, glassy eyes and noted 

that Davis spoke with an apparent slight slur. The officer

stated that he asked Davis to complete a field sobriety test 

after smelling the odor of an alcoholic beverage coming from the 

interior of Davis’s car. At this point in the testimony, Davis 

stipulated that, based on Officer Maeshiro’s observations, the 

officer had reasonable suspicion to stop Davis and probable 

cause to arrest him for OVUII.

Officer Kimberly Ann Chaney testified that she 

transported Davis from the location of the stop to the Kalihi 

police station. Officer Chaney related that she informed Davis

of the implied consent law by reading him form HPD-396K.

3 After 

 

3 Davis has not challenged the validity of his consent to take the 

breath test. See State v. Won, 137 Hawaiʻi 330, 372 P.3d 1065 (2015).
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Davis elected to take a breath test, Officer Chaney testified

that she turned on the Intoxilyzer 8000, identified as serial 

number 80-003486 (Intoxilyzer), and that the machine proceeded 

to conduct and pass an internal self-check.

After questioning Officer Chaney regarding the 

internal self-check, the State asked whether “based on [Officer 

Chaney’s] training and experience in operating the Intoxilyzer 

8000,” the instrument “appear[ed] to be operating properly and 

accurately on the date in question.” Before Officer Chaney 

responded, the State showed to defense counsel two Intoxilyzer 

8000 Accuracy Test Supervisor’s Sworn Statements, dated February 

29, 2012, and March 16, 2012 (Sworn Statements 1 and 2, 

respectively). The State, however, asked no questions of 

Officer Chaney regarding Sworn Statements 1 and 2. Rather, the 

State informed the court that Sworn Statements 1 and 2 “show[ed] 

that the instrument was working properly” and that it sought to 

admit the documents into evidence as proof of the Intoxilyzer’s

condition and accuracy.

The top half of Sworn Statements 1 and 2 includes a 

machine printout of the calibration testing data from the 

Intoxilyzer. The bottom half of Sworn Statements 1 and 2 

includes a pre-printed text block in which a person by the name 

of Woo Kang is identified as the Intoxilyzer supervisor. As to 
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the machine printout of the calibration testing data, there is a 

table listing the following information in this order: (1) air 

blank; (2) simulator temperature; (3) reference sample #1; (4) 

air blank; (5) air blank; (6) simulator temperature; 

(7) reference sample #2; (8) air blank; (9) ITP check; and 

(10) air blank. Next to each category of information, except 

the simulator temperatures, is a data entry based on “g/210L 

BrAC.”

4 Next to each data entry is a time stamp.

The pre-printed text block located in the bottom half

of Sworn Statements 1 and 2 contains the following statement:

I, Woo KANG, swear that the aforementioned information is 

true and correct and that I am a duly licensed Intoxilyzer 

8000 supervisor trained to maintain and perform accuracy 

tests on the Intoxilyzer 8000. The Intoxilyzer 8000 is a 

breath alcohol testing instrument approved for use in the 

State of Hawaii pursuant to section 321-161 of the Hawaii 

Revised Statutes as amended. The Intoxilyzer was operating 

accurately in compliance with the State of Hawaii 

Department of Health Administrative Rules, Title Eleven, 

Chapter 114-7, on the date indicated below, when I 

conducted the accuracy test recorded on this document.

Below this pre-printed language are the date, Woo Kang’s 

signature, and his license number and its expiration date.

Davis objected to Sworn Statements 1 and 2 being 

entered into evidence based upon, inter alia: (1) lack of 

 

4 It appears that “g/210L BrAC” denotes a measurement of alcohol 

concentration, which Hawaiʻi Administrative Rules (HAR) § 11-114-4 defines as 

“grams of alcohol per two hundred ten liters of breath.” See HAR § 11-114-4 

(1993).
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foundation; (2) hearsay; and (3) hearsay within hearsay. Davis

argued that Sworn Statements 1 and 2 did not substantively 

comply with the requirements of Hawaii Rules of Evidence (HRE) 

Rule 803(b)(6) (1993 & Supp. 2002), which is the hearsay 

exception for records of regularly conducted activity (i.e., 

business records). Further, Davis maintained that without more 

information or testimony as to Sworn Statements 1 and 2, the

data printout reflecting the calibration test results was

meaningless to the court; he noted, for example, that there was 

no evidence presented as to what known reference samples were 

used in the calibration testing and what their “target values” 

or output should have been in the machine’s data printout. 

Additionally, Davis contended that there was no information 

presented as to the specifics of the calibration procedure 

performed by Kang, which apparently differed from the 

Intoxilyzer’s internal self-check. Davis also objected to the 

admission of Sworn Statements 1 and 2 into evidence under the 

public records exception. Davis argued that Sworn Statements 1 

and 2 lacked reliability on their face because the State failed 

to present the circumstances of how the information was 

obtained, given that Kang did not testify at trial.

The State contended that there was sufficient legal 

basis under HRE Rule 803(b)(8) (1993 & Supp. 2002) for the 
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admission of Sworn Statements 1 and 2 into evidence because they 

were public records made in the course of a regularly conducted 

activity. The State maintained that each document was a selfauthenticating copy of the original log, which was kept in the 

custody of the Honolulu Police Department (HPD), a public 

office, and that each document contained a data compilation. 

The State further argued that the criteria for admitting Sworn 

Statements 1 and 2 into evidence were met because each document, 

on its face, complied with the requirements prescribed in the 

Hawaiʻi Administrative Rules (HAR), and each document indicated

that the Intoxilyzer was “operating accurately” when calibrated. 

The State maintained that the district court did not need to 

look at the data printout set forth in Sworn Statements 1 and 2 

to determine whether or not the device was operating accurately 

because Kang swore that the machine was operating accurately in 

compliance with the HAR.

Over the defense’s objection, the district court 

received into evidence Sworn Statements 1 and 2.

5 The district 

court, also over objection, admitted into evidence the March 3, 

2012 Sworn Statement of Intoxilyzer Operator (Operator 

 

5 The district court did not expressly indicate on what basis it 

was admitting Sworn Statements 1 and 2 into evidence, but it appears that the 

court’s ruling was based on HRE Rules 902(4) (1993 & Supp. 2002), 1005

(1993), and 803(b)(8) (1993 & Supp. 2002).
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Statement), which indicated that the breath alcohol content

measured by the Intoxilyzer for Davis was .139 grams of alcohol 

per 210 liters of breath.

Based on the evidence presented, the district court

concluded that the State met the three foundational requirements 

to show that Davis’s breath test results could be relied on as 

substantive evidence: (1) the Intoxilyzer was in proper working 

order; (2) its operator was qualified; and (3) the test was 

properly administered. The court also determined that the State 

showed strict compliance with the requirements of the HAR. 

Consequently, the district court concluded that the State proved

beyond a reasonable doubt that Davis had .08 or more grams of 

alcohol per 210 liters of breath at the time he was driving on 

March 3, 2012. Accordingly, the district court found Davis 

guilty of the offense charged and entered its Order and Notice 

of Entry of Order on November 29, 2012.

Davis appealed to the Intermediate Court of Appeals 

(ICA), challenging the district court’s admission of Sworn 

Statements 1 and 2 into evidence on the grounds that they did

not meet the foundational requirements and failed to comply with 
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the requirements of the business records exception.

6 Davis noted 

that he had objected at trial to the admission of Sworn 

Statements 1 and 2 under the Hawaii Rules of Evidence as 

inadmissible hearsay. Davis further contended that because the 

district court erred in admitting Sworn Statements 1 and 2, the 

State failed to present any evidence that the Intoxilyzer used 

to test his breath alcohol content was in proper working order 

and thus failed to lay a proper foundation for the admission of 

his breath test results. In response, the State maintained that 

the district court properly admitted Sworn Statements 1 and 2 

into evidence as public records under HRE Rule 803(b)(8). The 

State therefore argued that the district court did not err in 

admitting Davis’s breath test results into evidence.

In a Summary Disposition Order, the ICA ruled that the 

district court did not err by admitting Sworn Statements 1 and 2

into evidence because they were admissible as selfauthenticating public records under HRE Rules 803(b)(8) and 

902(4). The ICA reasoned that because Intoxilyzer calibration 

tests by the HPD are required, pursuant to HAR § 11-114-12,7 to 

 

6 Davis also contended that Sworn Statements 1 and 2 were 

inadmissible because both documents were meaningless and irrelevant due to 

the absence of essential information and because their admission violated his 

confrontation rights under the Hawaiʻi Constitution.

7 HAR § 11-114-12 provides,

(continued. . .)
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be kept and maintained by the Intoxilyzer supervisor for at 

least three years, Sworn Statements 1 and 2 are public records 

or reports of a public agency and, therefore, an exception to 

hearsay within the meaning of HRE Rule 803(b)(8).8 Accordingly, 

the ICA affirmed the district court’s Order and Notice of Entry 

of Order entered on November 29, 2012.

II. STANDARDS OF REVIEW

“When application of a particular evidentiary rule can 

yield only one correct result, the proper standard for appellate

review is the right/wrong standard.” State v. Jhun, 83 Hawaiʻi

 

(. . .continued)

(a) Records shall be kept and maintained at the direction 

of a supervisor.

(b) Records shall include information on:

. . . .

(2) Accuracy tests;

. . . .

(c) Records maintained pursuant to subsection (a) shall be 

retained by the jurisdiction for at least three years.

HAR § 11-114-12 (1993).

8 The ICA also concluded that Davis’s objection for lack of 

foundation was without merit and noted that Davis’s objection based on 

relevance was waived pursuant to Hawaiʻi Rules of Appellate Procedure Rule 

28(b)(4). In the alternative, with regard to the relevancy argument, the ICA 

indicated that because Sworn Statements 1 and 2 state that “[t]he Intoxilyzer 

was operating accurately in compliance with the State of Hawaiʻi Department of 

Health Administrative Rules, Title Eleven, Chapter 114-7,” these documents 

were relevant to demonstrate that the Intoxilyzer was working properly during 

Davis’s breath test on March 3, 2012.
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472, 477, 927 P.2d 1355, 1360 (1996) (quoting Kealoha v. Cty. of 

Hawaiʻi, 74 Haw. 308, 319-20, 844 P.2d 670, 676 (1993)). 

However, in cases where the rules of evidence require a 

“judgment call” by the trial court, “the traditional abuse of 

discretion standard should be applied.” Id. Thus, in Jhun, in

reviewing the trial court’s ruling with respect to hearsay and 

HRE Rule 803(b)(8), this court applied the right/wrong standard 

because the trial court did not have to make a “judgment call”

when it determined that the proffered evidence failed to qualify 

under the public records exception, as the report did not set 

forth factual findings resulting from an investigation. Id. at 

477-81, 927 P.2d at 1360-64.

III. DISCUSSION

In his Application for Writ of Certiorari, Davis 

contends that the ICA erred in concluding that the district 

court properly admitted into evidence Sworn Statements 1 and 2

under the Hawaii Rules of Evidence.

9 Davis maintains that 

because Sworn Statements 1 and 2 were improperly admitted, 

evidence of his breath alcohol content obtained from the 

 

9 Davis also challenges the admissibility of Sworn Statements 1 and 

2 based on lack of relevance, lack of trustworthiness, and a violation of his 

confrontation rights under the Hawaiʻi Constitution. In light of our 

disposition of this case, it is not necessary to address these arguments.
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Intoxilyzer was also improperly received and thus there was 

insufficient evidence to support his OVUII conviction.

In State v. Thompson, 72 Haw. 262, 814 P.2d 393 

(1991), this court noted that to admit a specific Intoxilyzer 

breath alcohol test result into evidence, the prosecution must 

lay a proper foundation “to establish the accuracy of the 

alcohol concentrations used in breath tests.” Id. at 263, 814 

P.2d at 394. The foundation must show that “(1) the intoxilyzer 

was in proper working order; (2) its operator was qualified; and 

(3) the test was properly administered.” Id. at 263, 814 P.2d 

at 394-95 (quoting State v. Souza, 6 Haw. App. 554, 558, 732 

P.2d 253, 257 (1987)). This foundation is necessary to prove 

the reliability of the test result that establishes intoxication

before the test result can be relied on as a substantive fact. 

Souza, 6 Haw. App. at 558, 732 P.2d at 256.

“[I]n meeting the foundational prerequisites for the 

admission of the Intoxilyzer test result[,] there must be a 

showing of strict compliance with those provisions of the 

[Hawaiʻi Administrative] Rules [governing the testing of blood, 

breath, and other bodily substances for alcohol concentration]

which have a direct bearing on the validity and accuracy of the 
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test result.”10 State v. Kemper, 80 Hawaiʻi 102, 105, 905 P.2d 

77, 80 (App. 1995) (quoting State v. Matsuda, 9 Haw. App. 291, 

293, 836 P.2d 506, 508 (1992)). This includes establishing that 

the calibration procedure used to test the accuracy of the

Intoxilyzer strictly complied with the HAR because the 

calibration test has a “direct bearing on the validity and 

accuracy of the test result obtained from that Intoxilyzer.”

Souza, 6 Haw. App. at 562, 732 P.2d at 259. Accordingly, in 

order “to fulfill the foundational prerequisites of 

admissibility” of the test result in this case, the State was 

required to show that the Intoxilyzer calibration test, which 

has a direct bearing on the validity and accuracy of Davis’s 

breath test result, was in compliance with HAR § 11-114-7

11 and 

 

10 Title 11, chapter 114 of the HAR provides the relevant rules and 

regulations for the “Testing of Blood, Breath, and Other Bodily Substances 

for Alcohol Concentration.” It applies to “individuals or laboratories who 

collect samples for or conduct forensic alcohol testing for the purpose of 

introduction of the alcohol test results into evidence in . . . criminal 

proceedings under applicable State driving under the influence of alcohol 

statutes.” HAR § 11-114-1(b) (1993).

11 HAR § 11-114-7 provides the following:

(a) Every accuracy test procedure shall be approved by the DUI 

coordinator in writing and shall include, but not be limited to the following 

requirements:

(1) The test shall be conducted by a supervisor;

(2) At least two different reference samples and an 

air blank shall be run with each accuracy test;

(continued. . .)
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was therefore in proper working order on the calibration testing 

dates. See id.

A. Admissibility under Public Records Exception, 

HRE Rule 803(b)(8)

The State contended at trial, and the ICA agreed, that 

Sworn Statements 1 and 2 were admissible public records under 

HRE Rule 803(b)(8) (1993 & Supp. 2002) and thus demonstrated

that the Intoxilyzer was in proper working order on the dates of 

the calibration testing.

12

 

(. . .continued)

(3) Reference samples shall be chosen so that their 

target values are not less than 0.04gm alcohol/210 

liters and not greater than 0.25gm alcohol/210 

liters;

(4) Reference sample target values shall differ from 

each other by at least 0.04gm alcohol/210 

liters;

(5) Reference sample test results which vary from the 

target value by more than plus or minus 0.0/gm 

alcohol/210 liters or plus or minus ten percent, 

whichever is greater, shall be cause for the 

breath alcohol testing instrument used to be 

removed from service until the fault has been 

corrected; and

(6) An accuracy test shall be performed on an 

operating instrument at intervals not to exceed 

thirty-one days.

HAR § 11-114-7 (1993).

12 At oral argument, counsel for the State maintained that Sworn 

Statements 1 and 2 would not be admissible hearsay under the public records 

exception, but that they would instead be admissible under the business

records exception. See Oral Argument at 20:10-26, 23:25-58, State v. Davis, 

SCWC-12-0001121 (argued Dec. 17, 2015), http://oaoa.hawaii.gov/jud/oa

/15/SCOA_121715_scwc12_1121.mp3. In response to a question by the court,

(continued. . .)
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i. Analysis of “Matters Observed,” HRE Rule 803(b)(8)(B)

HRE Rule 803(b)(8) sets forth the public records

hearsay exception:

Records, reports, statements, or data compilations, in any 

form, of public offices or agencies, setting forth (A) the 

activities of the office or agency, or (B) matters observed 

pursuant to duty imposed by law as to which matters there 

was a duty to report, excluding, however, in criminal cases 

matters observed by police officers and other law 

enforcement personnel, or (C) in civil proceedings and 

against the government in criminal cases, factual findings 

resulting from an investigation made pursuant to authority 

granted by law, unless the sources of information or other 

circumstances indicate lack of trustworthiness.

HRE Rule 803(b)(8) (1993 & Supp. 2002).

Thus, the public records exception to the hearsay rule 

allows for the admission of records, reports, statements, or 

data compilations, in any form, of public offices or agencies if 

those documents contain certain categories of information and 

meet other requirements of this hearsay exception. Id. Under 

HRE Rule 803(b)(8)(B), a public record may be admissible if it 

sets forth “matters observed pursuant to a duty imposed by law 

as to which there was a duty to report.” A record or report

will not be admissible under the public records exception, 

however, if it falls within the exclusion clause of HRE Rule 

803(b)(8)(B), which prohibits the admission in criminal cases of 

 

(. . .continued)

counsel changed his position and argued that the public records exception 

would be a basis for admitting Sworn Statements 1 and 2 into evidence. Id.
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“matters observed by police officers and other law enforcement 

personnel.” Id.

Therefore, determining whether proffered hearsay 

evidence falls within HRE Rule 803(b)(8)(B) requires a two-part 

inquiry. First, the proponent of the evidence must establish

that the record or report presents “matters observed” and that

there existed a duty to make and report the observations. Id. 

Second, the proffered evidence must not fall within the criminal 

case exclusion clause as a matter observed by law enforcement 

personnel.

13 Id.; see also Addison M. Bowman, Hawaii Rules of 

Evidence Manual § 803-3[8][D], at 8-44 (2016-2017 ed.).

As to the first inquiry, the phrase “matters observed”

“could reach virtually everything, but apparently it was 

intended to have [a] narrower meaning.” Christopher B. Mueller 

& Laird C. Kirkpatrick, Evidence § 8.50, at 910 (5th ed. 2012). 

That is, the term “matters observed” narrows the coverage of 

subsection (B) “to information that is concrete and simple in 

nature,” rather than encompassing all “records describing an 

almost endless variety of acts, events, and conditions in the 

 

13 Because we conclude below that Kang’s statement in the bottom 

half of Sworn Statements 1 and 2 does not constitute a “matter observed,” we 

need not reach the issue of whether Sworn Statements 1 and 2 fall within the

public records exclusion for criminal cases as matters observed by law 

enforcement personnel. See HRE Rule 803(b)(8)(B).
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world observed and depicted by public officials.” Id. at 910. 

Indeed, “matters observed” are “routine recordations not 

resulting from analysis or judgment” and do not encompass 

“conclusions, opinions, and evaluative findings.” Bowman, 

supra, § 803-3[8][D], at 8-44 (emphasis added); see also Pool v. 

Wade, 685 N.E.2d 791, 793 (Ohio Ct. App. 1996) (analyzing 

“matters observed” subsection of similar Ohio public records 

exception and stating that “[n]otably, the Rule does not include 

records, or portions of records, that may be characterized as 

‘evaluations’ or ‘interpretations’ of . . . events or 

transactions.” (quoting Weissenberger’s Ohio Evidence § 803.105, 

at 409 (1996))).

Examples of data or information compilations that do 

constitute “matters observed” include official weather 

observations, Village of Evanston v. Gunn, 99 U.S. 660, 666-67 

(1878) (meteorological observations by U.S. Signal Service); 

judgments or orders of the court, State v. Samonte, 83 Hawaiʻi

507, 538, 928 P.2d 1, 32 (1996) (court record of judgment of 

conviction); a Coast Guard description of a damaged buoy, United 

States v. Tug Otto, 296 F. Supp. 1130, 1133 (S.D. Tex. 1967) 

(record of the board of survey finding that the buoy was damaged 

beyond economic repair admissible because “[n]o particular 

degree of expertise would be required to make a determination if 
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a particular buoy were damaged beyond economic repair”); reports 

detailing observed conditions at institutional facilities, 

Schwartzberg v. Califano, 453 F. Supp. 1042, 1046 (S.D.N.Y. 

1978) (U.S. Department of Health, Education, and Welfare report 

recounting observations of nursing home and health facility); 

and “observations in an accident report that describe the scene 

and equipment and report concrete measurements and easily 

observable damage or destruction,” Mueller & Kirkpatrick, supra, 

§ 8.50, at 911.

ii. Comparison to “Factual Findings,” HRE Rule 803(b)(8)(C)

Comparing the term “matters observed” within 

subsection (B) of HRE Rule 803(b)(8) and the term “factual 

findings” within subsection (C) further demonstrates the 

former’s limited scope. “Factual findings from an 

investigation” admissible under HRE Rule 803(b)(8)(C)’s federal 

counterpart14 have been interpreted by the United States Supreme 

 

14 The federal public records hearsay exception is codified at 

Federal Rules of Evidence (FRE) 803(8) and provides in relevant part:

(8) Public Records. A record or statement of a public 

office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty 

to report, but not including, in a criminal case, 

(continued. . .)
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Court to include “conclusions or opinions that flow from a 

factual investigation.” See Beech Aircraft Corp. v. Rainey, 488 

U.S. 153, 164 (1988); see also State v. Jhun, 83 Hawaiʻi 472, 

481, 927 P.2d 1355, 1364 (1996) (noting that “independent 

conclusions or opinions” may be admissible as “factual findings” 

under HRE Rule 803(b)(8)(C)). Notably, the legislative history 

of the federal public records exception suggests that its 

drafters envisioned the “factual findings” subsection--rather 

than the “matters observed” or “activities of an office or 

agency” subsections--as providing the gateway for admission of 

“evaluative reports” that would otherwise constitute hearsay. 

See Beech Aircraft Corp., 488 U.S. at 164-67 (discussing 

legislative history of FRE 803(8)(A)(iii) and determining that 

 

(. . .continued)

a matter observed by law-enforcement personnel; 

or

(iii) in a civil case or against the government 

in a criminal case, factual findings from a 

legally authorized investigation; and

(B) the opponent does not show that the source of 

information or other circumstances indicate a lack of 

trustworthiness.

FRE 803(8) (2014).

“Although cases interpreting provisions in the Federal Rules of 

Evidence are of course not binding on us, we may refer to them for their 

persuasive authority in interpreting similar provisions of the Hawaii Rules 

of Evidence.” State v. Jhun, 83 Hawaiʻi 472, 478, 927 P.2d 1355, 1361 (1996).
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the Advisory Committee “surely” intended that “factual findings” 

subsection would allow for admission of “evaluative reports”).

In keeping with this distinction, the term “matters 

observed” within the federal public records exception has been 

interpreted as excluding evaluative findings and opinions. See

Baker v. Elcona Homes Corp., 588 F.2d 551, 556-57 (6th Cir. 

1978). In Baker, a defendant in a vehicular negligence lawsuit 

sought to introduce a police accident report to settle the

disputed fact of whether a traffic light was red or green at the 

time of an accident. Id. at 555. The police report included 

(1) the responding officer’s visual description of the accident 

scene upon arrival, including measurements and physical 

markings, (2) a transcript of the officer’s subsequent interview 

with one of the parties, (3) a notation that “apparently unit #2 

(the Valiant) entered the intersection against a red light,” and 

(4) notations that “unit #2” failed to yield the right-of-way 

and that both drivers were “preoccupied.” Id. at 554-55. The 

police report was admitted into evidence over the plaintiff’s 

hearsay objection. Id. at 555. On appeal, the Sixth Circuit 

Court of Appeals determined that the “matters observed” and 

“factual findings” subsections of FRE 803(8) were applicable. 

Id. at 555-56. The Court of Appeals first concluded that “the 

direct observations and recorded data” of the responding officer 
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21

“clearly” constituted “matters observed” within the meaning of 

FRE 803(8)(A)(ii). Id. at 556. The Sixth Circuit’s “principal 

concerns,” however, related to, inter alia, whether the traffic 

light and fault notations were properly admissible under either 

the “matters observed” or “factual findings” subsections. Id. 

The Court of Appeals concluded that the traffic light and fault 

notations were more appropriately characterized as “factual 

findings” falling under FRE 803(8)(A)(iii), because they related 

to “whether the light was red or green for one driver or the 

other at the time of the accident.” Id. at 557. In so 

deciding, the Sixth Circuit made the following distinction 

between the “matters observed” and “factual findings” 

subsections:

Applying the rule and its background to the facts here, it 

is apparent that whether the light was red or green for one 

driver or the other at the time of the accident is 

distinctly a factual finding within the meaning of the rule

. . . . It is also clear from the construction of the rule 

itself that factual findings admissible under Rule 

803(8)[(A)(iii)] may be those which are made by the 

preparer of the report from disputed evidence, as 

contrasted to those facts which are “matters observed 

pursuant to duty imposed by law as to which matters there 

was a duty to report” called for under Rule 

803(8)[(A)(ii)].

Id. at 557–58. Thus, the court considered that the “matters 

observed” subsection of the public records exception encompassed

the “direct observations and recorded data” included by the 

officer in his accident report, whereas the “factual findings” 

subsection applied to conclusions or evaluations (i.e., whether 
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22

the light was red or green at the time of the accident) based on 

those observations or data. Id.; see also Bradbury v. Ford 

Motor Co., 358 N.W.2d 550, 552 (Mich. 1984) (noting the 

distinction between the “concepts” in the “matters observed” and 

“factual findings” subsections of the public records hearsay

exception).

In this case, to meet the requirements under HRE Rule 

803(b)(8)(B), Kang’s statement in the bottom half of Sworn 

Statements 1 and 2 that the “Intoxilyzer was operating 

accurately” must constitute a “matter[] observed.”15 See HRE 

Rule 803(b)(8)(B). In his sworn statement, Kang indicated that 

he was a “duly licensed Intoxilyzer 8000 supervisor trained to 

maintain and perform accuracy tests on the Intoxilyzer 8000.” 

Indeed, HAR § 11-114-7 requires that an Intoxilyzer supervisor 

conduct the calibration tests, and HAR § 11-114-9

16 prescribes 

 

15 The machine printout of the calibration testing data included 

within the top half of Sworn Statements 1 and 2 may constitute a collection 

of “routine recordations” qualifying as “matters observed” within the meaning

of HRE Rule 803(b)(8)(B). Bowman, supra, § 803-3[8][D], at 8-44. Because 

this court concludes that the sworn statement of Kang included within the 

bottom half of Sworn Statements 1 and 2 does not constitute a “matter 

observed,” we do not analyze HRE Rule 803(b)(8)(B) with respect to the 

testing data.

16 HAR § 11-114-9 provides in relevant part:

(b) No person shall serve as a supervisor without a 

valid license issued by the DUI coordinator or the chief of 

police.

(continued. . .)
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23

the training and licensing requirements for Intoxilyzer 

supervisors. Thus, based on the record and the qualification

requirements for Intoxilyzer supervisors, Kang was required to 

have specialized knowledge, experience, and training in 

Intoxilyzer calibration testing. Kang’s sworn statement that 

the “Intoxilyzer was operating accurately” was based upon his 

technical analysis of the data included within the top half of 

Sworn Statements 1 and 2, which he collected in conducting the 

Intoxilyzer calibration tests. Therefore, Kang’s sworn 

 

(. . .continued)

(c) A supervisor may practice only in the 

jurisdiction designated on the license.

. . . .

(e) A supervisor’s license shall be effective for 

three years from date of issuance unless revoked by the 

issuer.

. . . .

(h) Training programs for supervisors shall:

(1) Be conducted either by the DUI coordinator, 

the chief of police, the chief’s 

representative(s) or, with the written 

approval of the DUI coordinator or the 

chief of police, by a representative(s) of 

the manufacturer of the breath alcohol 

testing instrument;

(2) Consist of a minimum of eight hours; and

(3) Be approved in writing by the DUI 

coordinator except as provided in 

subsection (j)(1).

HAR § 11-114-9 (1993).
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statement that the “Intoxilyzer was operating accurately” is an 

expert conclusion based on his technical proficiency in 

Intoxilyzer calibration testing.

Kang’s conclusion that the Intoxilyzer was functioning 

accurately is similar to the responding officer’s conclusion in 

Baker that a driver ran a red light and was at fault for a

resulting accident. 588 F.2d at 556-57. The responding officer 

in Baker gathered data by observing the physical circumstances 

of the accident scene and conducting other investigative 

measures; then, based on that data, the officer made a 

conclusion that the light was red at the time of the accident. 

Id. at 554-55. Here, Kang gathered data by conducting 

calibration testing on the Intoxilyzer; then, based on the data 

he recorded in the top half of Sworn Statements 1 and 2 and 

using his training and specialized knowledge, he rendered a 

conclusion that the Intoxilyzer was functioning accurately and 

included this conclusion in the bottom half of Sworn Statements 

1 and 2.

As in Baker, Kang’s interpretive conclusion cannot be 

characterized as a “matter observed” because it is not a “direct 

observation,” a “routine recordation,” or “recorded data” 

reflecting observations that are concrete and simple. 588 F.2d 

at 556; Bowman, supra, § 803-3[8][D], at 8-44. Kang’s 
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conclusion therefore does not constitute a “matter observed.”

17 

Accordingly, the ICA and the district court erred in admitting

Sworn Statements 1 and 2 into evidence as public records under 

HRE Rule 803(b)(8)(B).18

iii. State v. Ofa Does Not Provide for a Different Result

The dissenting opinion relies primarily on an ICA 

decision, State v. Ofa, 9 Haw. App. 130, 828 P.2d 813 (1992), in 

support of its position. Initially, it is noted that the 

dispositive issue in Ofa was whether the State’s failure to 

include the known temperature of the solutions used to test an 

Intoxilyzer rendered the resulting calibration tests 

insufficient to lay a foundation for Ofa’s breath test results. 

 

17 The dissent seeks to distinguish Baker by describing Sworn 

Statements 1 and 2 as “routine determination[s] that a piece of equipment 

works properly,” or alternatively, as “record[s] of the direct observations 

of the Intoxilyzer supervisor” and thus “plainly . . . ‘matter[s] observed.’” 

Dissent at 6, 8. Even assuming Kang’s testing of the Intoxilyzer may be 

characterized as “routine” in the sense that HAR § 11-114-7(6) requires that 

such equipment be tested for accuracy by a qualified professional “at 

intervals not to exceed thirty-one days,” Kang’s statement as set forth in 

the bottom half of Sworn Statements 1 and 2 is not a “direct observation[]” 

or simple “determination that a piece of equipment works properly.” Dissent 

at 6, 8. Rather, for the reasons described above, the statement reflects an 

evaluative opinion that was based on Kang’s specialized knowledge of 

Intoxilyzer calibration procedures. See HAR § 11-114-7(6) (1993), supra note 

11.

18 Kang’s conclusion contained in Sworn Statements 1 and 2 is not 

admissible under HRE Rule 803(b)(8)(C) as a “factual finding[] resulting from 

an investigation made pursuant to authority granted by law” because HRE Rule 

803(b)(8)(C) is restricted in criminal cases to use only against the 

government and thus may not be used against Davis in this case. HRE Rule 

803(b)(8)(C); see also Jhun, 83 Hawaiʻi at 477, 927 P.2d at 1360 (quoting 

same).
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26

Id. at 139, 828 P.2d at 818. The ICA answered this question in 

the affirmative and reversed Ofa’s conviction on that basis 

alone. Id. at 141, 828 P.2d at 820. As such, the ICA’s other 

rulings in the case are dicta. Although one of those rulings 

addressed whether a log book was admissible under HRE Rule 

803(b)(8)(B), it is not contrary to our decision in this case.

In Ofa, the defendant was charged with driving under 

the influence of intoxicating liquor. Id. at 132, 828 P.2d at 

815. At trial, the State sought to introduce evidence of the 

defendant’s Intoxilyzer breath test result. Id. at 133, 828 

P.2d at 816. As foundational evidence that the relevant 

Intoxilyzer was functioning accurately on the date that the 

breath test was administered, the State offered into evidence a 

copy of a page of a “log book” (Log) maintained by HPD. Id. at

132-33, 828 P.2d at 815-16. HPD criminalist Gilbert Chang, a

certified Intoxilyzer operator-supervisor, testified that 

“certified operator-supervisors periodically test or calibrate 

the HPD’s intoxilyzers for accuracy” and that “the date and 

results of the testing for accuracy” were entered into the Log. 

Id. Chang testified that the initials “JW” appearing on the Log

signified that John Wadahara “had tested the Intoxilyzer for 
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27

accuracy on [the noted] dates.”19 Id. at 133, 828 P.2d at 816. 

Chang further testified that “the Log indicated that the 

Intoxilyzer was operating accurately on May 31 and June 28, 

1990.” Id.

Over the defendant’s objection, the trial court 

admitted the Log as a public record under HRE Rule 803(b)(8)(B). 

Id. at 135, 828 P.2d at 816. Ofa raised several issues in 

appealing his subsequent conviction, including that the Log

constituted hearsay and that the trial court erred in admitting 

it into evidence. Id. at 134, 828 P.2d at 816.

The ICA concluded that “the only issue” on appeal with 

respect to the admissibility of the Log was “whether the Log 

[was] excludable from the public records and reports exception 

to the hearsay rule as ‘matters observed by . . . law 

enforcement personnel’ in a criminal case.” Id. at 135, 828 

P.2d at 817. Thereafter, the ICA devoted its analysis to the 

issue of whether the Log fell within HRE Rule 803(b)(8)(B)’s 

exclusion clause.20 Id. at 135-137, 828 P.2d at 817. There was 

 

19 The Ofa opinion provides no additional information on the 

contents of the Log. 9 Haw. App. at 133, 828 P.2d at 815. The ICA noted 

that Wadahara did not testify in the case. Id. at 133, 828 P.2d at 816.

20 In determining whether the Log fell within the exclusion clause, 

the ICA discussed the Log’s nonadversarial and trustworthy nature. Ofa, 9 

Haw. App. at 136, 828 P.2d at 817. As in Ofa, issues of the adversarial 

nature or trustworthiness of evidence proffered under the “matters observed” 

(continued. . .)
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no discussion with respect to the first step of the inquiry 

under HRE Rule 803(b)(8)(B) regarding whether the Log’s contents 

constituted “matters observed.” Id. Accordingly, Ofa does not

speak to the issue in this appeal--whether evaluative opinions 

and analyses constitute “matters observed.”

21

In this case, the State sought to lay a foundation for 

Davis’s breath test results through a document that contained 

both data and evaluative opinion. Although the numerical data 

included in the top half of Sworn Statements 1 and 2 may be 

admissible under HRE Rule 803(b)(8)(B), Kang’s opinion regarding 

the Intoxilyzer’s accuracy included in the bottom half is not. 

 

(. . .continued)

subsection of the public records hearsay exception often arise under this 

second part of the inquiry rather than the rule’s definitional clause. See, 

e.g., United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir. 1986) 

(concluding that “maintenance operator’s calibration report” of breathalyzer 

machine did not fall within exclusion clause because it was a routine act of 

a nonadversarial nature); United States v. Hernandez-Rojas, 617 F.2d 533, 

534-35 (9th Cir. 1980) (concluding that deportation warrant with signed and 

dated notation “deported to Mexico, Calexico, California” did not fall within 

exclusion clause because it was a “ministerial, objective observation”).

21 Thus, neither the holding nor the reasoning of Ofa is “directly 

applicable to this case,” dissent at 5, as Davis does not argue that Sworn 

Statements 1 and 2 fall within the rule’s exclusion clause.

However, although dicta, Ofa does provide an example of the 

intersection of data, evaluative opinion, and hearsay evidence in OVUII 

prosecutions in laying a proper foundation for a defendant’s breath test 

results: “[b]ased on the Log and other exhibits in evidence, [the certified 

Intoxilyzer operator-supervisor] gave his opinion testimony regarding the 

accuracy of the Intoxilyzer.” 9 Haw. App. at 137, 828 P.2d at 817. This 

combination of evidence, the Ofa court determined, was sufficient to support 

the admission of the breath test results under the Hawaii Rules of Evidence. 

Id.
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29

See Bowman, supra, § 803-3[8][D], at 8-44 (“matters observed” 

falling within HRE Rule 803(b)(8)(B) do not include 

“conclusions, opinions, and evaluative findings”). Thus, Sworn 

Statements 1 and 2 are not admissible hearsay under HRE Rule 

803(b)(8)(B).

iv. Use of Sworn Statements in Administrative Driver’s License 

Revocation Proceedings

Our determination that Kang’s evaluative conclusions 

as included within the bottom half of Sworn Statements 1 and 2 

do not fall within HRE Rule 803(b)(8)(B) is also consistent with

statutory provisions relating to administrative driver’s license 

revocation proceedings following an OVUII arrest. In the 

administrative revocation process, which is civil in nature, the 

State is specifically authorized by statute to rely on 

evaluative conclusions virtually identical to those contained in 

Sworn Statements 1 and 2 in this case. See HRS § 291E-37(c)(3) 

(Supp. 2012); HRS § 291E-38(g) (Supp. 2012). Although written 

statements including conclusions on an Intoxilyzer’s accuracy 

are permitted in a civil process designed to expeditiously 

revoke the license of the arrestee-driver, reliance on such 

relaxed evidentiary procedures in criminal proceedings against 

an individual facing penal sanctions is neither authorized nor 

called for by time considerations.
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Under the Hawaii Revised Statutes, administrative 

driver’s license revocation procedures may be initiated 

following an OVUII arrest when the arresting officer issues a 

notice of administrative revocation. HRS § 291E-33(a), (c)

(Supp. 2012). Where the officer has administered a breath, 

blood, or urine test establishing the driver’s alcohol 

concentration, the relevant authority is required to immediately

forward to the director22 the “sworn statement of the person 

responsible for maintenance of the testing equipment” to 

establish, pursuant to HRS § 321-16123 and rules adopted 

thereunder, the following information:

(A) The equipment used to conduct the test was approved for 

use as an alcohol testing device in this State;

(B) The person had been trained and at the time the test 

was conducted was certified and capable of maintaining the 

testing equipment; and 

(C) The testing equipment used had been properly maintained 

and was in good working condition when the test was 

conducted . . . . 

 

22 See HRS § 291E-1 (2007) (defining “director” as “the 

administrative director of the courts or any other person within the 

judiciary appointed by the director to conduct administrative reviews or 

hearings or carry out other functions relating to administrative revocation 

under part III”).

23 See HRS § 321-161 (2010) (authorizing the department of health to 

establish and administer a statewide program relating to alcohol 

concentration testing for purposes of HRS chapter 291E).
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HRS § 291E-36(a), (a)(2) (2007 & Supp. 2012) (emphasis added).

24 

The director is then required to review the issuance of the 

notice of revocation, which must include consideration of the 

sworn statement regarding the working condition of the machine 

at the time the breath, blood, or urine test was conducted. HRS 

§ 291E-37(a), (c)(3) (Supp. 2012).

If the director administratively revokes the 

individual’s driver’s license, the driver may request an 

administrative hearing to seek review of the decision to revoke 

the driver’s license. HRS § 291E-38(a) (Supp. 2012). At the 

hearing, the sworn statements relating to the accuracy and 

condition of the testing equipment must be admitted into 

evidence, and the director “shall” consider the statements 

 

24 We note that the requirements for accuracy testing of breath 

testing machines as set forth in HAR § 11-114-7(a) (see supra note 11) apply 

to all “individuals or laboratories who collect samples for or conduct 

forensic alcohol testing for the purpose of introduction of the alcohol test 

results into evidence in either civil or criminal proceedings under 

applicable State driving under the influence of alcohol statutes.” HAR § 11-

114-1(b) (emphasis added). This suggests that Sworn Statements 1 and 2, like 

the sworn statements contemplated by the administrative driver’s license 

revocation statute, are completed pursuant to the accuracy testing procedures 

of HAR § 11-114-7(a). See Park v. Tanaka, 75 Haw. 271, 278-79, 859 P.2d 917, 

920-21 (1993). In fact, at least with respect to the predecessor revocation 

statute, Sworn Statements 1 and 2 are substantively identical to the sworn 

statements used in revocation proceedings, in that the top half contains a 

machine printout from the calibration testing data of the Intoxilyzer, and 

the bottom half includes a pre-printed text block of the Intoxilyzer 

supervisor regarding the machine’s accuracy. See Ige v. Admin. Dir. of the 

Court, 93 Hawaiʻi 133, 139-40, 997 P.2d 59, 65-66 (App. 2000) (detailing 

contents of sworn statements used in driver’s license revocation proceedings

under HRS chapter 286 (repealed 2000)). 
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32

without requiring the testimony of a law enforcement officer or 

other person. See HRS § 291E-38(a) (Supp. 2012); HRS § 291E38(g). However, should the individual request to “examine a law 

enforcement officer or other person who made a sworn statement,” 

the director is required to issue a subpoena for that person to 

appear at the hearing. HRS § 291E-38(g). Thus, the 

administrative driver’s license revocation procedures require 

admission and consideration of sworn statements regarding a

breath test equipment’s accuracy and condition, while also 

mandating that, upon request, the officer or other qualified 

person be subpoenaed to give testimony at an administrative 

hearing.

Specifically with respect to the administrative 

revocation of a driver’s license, part III of HRS chapter 291E 

therefore allows for the submission of documentary evidence to 

prove that breath test equipment was operating accurately at the 

time that the test was administered to the individual whose 

license the State seeks to revoke. Permitting relaxed 

evidentiary procedures in this civil setting is in keeping with 

the purpose of the administrative revocation process itself, 

which is to “provide for the public safety by establishing a 

quick, administrative procedure for revoking the licenses of 

drunk drivers while they are awaiting trial on criminal DUI 
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charges.” State v. Toyomura, 80 Hawaiʻi 8, 20, 904 P.2d 893, 905 

(1995) (quoting Conf. Comm. Rep. No. 137, in 1990 House Journal, 

at 824, 1990 Senate Journal, at 825) (analyzing predecessor 

administrative driver’s license revocation procedures under HRS 

§ 286-260 (repealed 2000)). In fact, the key benefit of 

administrative revocation procedures is the ability to bypass 

those protections afforded to criminal defendants at trial:

[T]he main benefit of administrative revocation is that it 

allows the State to remove a drunk driver’s license before 

the culmination of a lengthy prosecution under the criminal 

statute. Currently, a person charged with driving under 

the influence must be allowed to continue driving until he 

or she is found guilty in a court of law. This process 

takes an average of seven or eight months in Hawaii, and 

even longer, and while this process is going on, the 

dangerous driver, who quite likely is an inveterate repeat 

offender, remains on the road.

State v. Higa, 79 Hawaiʻi 1, 6, 897 P.2d 928, 933 (1995) (quoting 

Conf. Comm. Rep. No. 137, in 1990 House Journal, at 824-25, 1990 

Senate Journal, at 825). Deeming sufficient a sworn statement 

regarding maintenance testing on a breath or other test machine, 

rather than requiring a qualified person to testify at a

hearing, is thus one way the administrative revocation process

avoids evidentiary and other procedural rules in an effort to 

prevent “potentially threatening drivers” from continuing to 

drive “between the time [they] are cited and their criminal 

adjudication.” Id. at 6, 897 P.2d at 933.
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Significantly, unlike the “legitimate, nonpunitive, 

and purely remedial functions” of the administrative driver’s 

license revocation process, see Higa, 79 Hawaiʻi at 7, 897 P.2d 

at 934, a defendant in an OVUII prosecution faces criminal 

penalties and loss of the constitutional right to liberty. See

HRS § 291E-61(b) (Supp. 2011) (providing imprisonment penalties 

for the offense of operating a vehicle under the influence of an 

intoxicant). An individual subject to an OVUII prosecution is 

guaranteed the protections afforded to criminal defendants by 

the Hawaiʻi Constitution, the United States Constitution, and the 

Hawaii Revised Statutes (which includes the Hawaii Rules of 

Evidence). Misconstruing HRE Rule 803(b)(8)(B) to allow into 

evidence in an OVUII criminal prosecution out-of-court 

evaluative opinions and conclusions similar to those contained 

within the sworn statements deemed admissible in the civil 

driver’s license revocation process would essentially allow

procedures designed specifically for a civil administrative 

process to be used in a criminal trial.

v. Davis’s Breath Test Results Lacked Sufficient Foundation

As Professor Bowman explains in his evidence treatise,

evaluative opinions that constitute hearsay may not be admitted 

into evidence under HRE Rule 803(b)(8)(B). Bowman, supra, § 

803-3[8][D], at 8-44. Public records that include “information 
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35

that is concrete and simple in nature” or “routine recordations

not resulting from analysis or judgment” may constitute “matters 

observed” within the meaning of HRE Rule 803(b)(8)(B) and merit 

admission into evidence under the rule.25 Mueller & Kirkpatrick, 

supra, § 8.50, at 910; Bowman, supra, § 803-3[8][D], at 8-44. 

Public records that do not constitute “matters observed” because 

they include “conclusions, opinions, and evaluative findings”

will not be admissible under the public records exception.

26 

Bowman, supra, § 803-3[8][D], at 8-44. 

 

25 Our opinion does not preclude any “document or record that 

requires any sort of training or specialized knowledge” from being admitted 

into evidence under HRE Rule 803(b)(8). Dissent at 9. Rather, a record 

prepared using training or specialized knowledge may be admissible under the 

rule provided that its contents constitute “matters observed,” in that it 

does not contain conclusions, opinions, or evaluative findings. Bowman, 

supra, § 803-3[8][D], at 8-44. 

26 Though the dissent states that our decision is inconsistent with 

those of other federal and state courts on “this issue,” dissent at 2, 7, it 

appears that the trial courts of other jurisdictions have routinely utilized 

a combination of testimony and written data to lay a foundation for 

evaluative opinions and reports, thereby avoiding the precise issue in this 

case. See, e.g., Best v. State, 328 A.2d 141, 142-43 (Del. 1974) 

(Intoxilyzer calibration tests by state chemist introduced in conjunction 

with testimony of police officer/record-keeper regarding “[the Intoxilyzer’s] 

proper operation and condition at the time of [the defendant’s] arrest and 

testing”); United States v. Gilbert, 774 F.2d 962, 964 (9th Cir. 1985) (card 

containing impression of fingerprint and “notation that the fingerprint had 

been ‘lifted’ from one of the wooden statuettes by Criminologist Sally Jones” 

introduced in conjunction with testimony of different criminologist that the 

print on the card was a match to defendant’s left thumb); People v. Black, 

406 N.E.2d 23, 24-25 (Ill. App. Ct. 1980) (testimony of evidence technician 

that decal affixed to breathalyzer machine “indicated that it had been 

recently tested and proven accurate” was sufficient to establish machine’s 

accuracy); State v. Jensen, 351 N.W.2d 29, 31, 32-33 (Minn. Ct. App. 1984) 

(breathalyzer certification records introduced in conjunction with testimony 

of operator who administered defendant’s breath test regarding “the 

administration and the reliability of the [breath] test”).

(continued. . .)
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In order to render evaluative opinions or conclusions

based on “matters observed,” other evidence may be introduced in 

conjunction with data properly admitted under HRE Rule 

803(b)(8)(B).

27 This additional evidence may come in a variety 

 

(. . .continued)

Further, the dissent has not identified a case in which this 

specific issue--i.e., whether evaluative opinions and conclusions constitute 

“matters observed” within the meaning of HRE Rule 803(b)(8)(B) or its state 

or federal analogs--has been explicitly considered, reasoned, and ruled on in 

the affirmative. See, e.g., State v. Smith, 675 P.2d 510, 511-12 (Or. Ct. 

App. 1984) (concluding that “two documents certifying that the breathalyzer

equipment was in proper operating order” were admissible into evidence under 

state law public records exception but declining without explanation to 

address defendant’s argument that the two documents “encompass[ed] expert 

testimony”).

27 To the extent that the dissent suggests that such a combination 

of evidence is inconsistent with 24 years of practice in Hawaiʻi courts, 

dissent at 2, we note that in numerous cases, the State has laid a foundation 

for test results in OVUII prosecutions in part by introducing testimony of a 

qualified Intoxilyzer supervisor or other professional familiar with test 

equipment calibration procedures. See, e.g., State v. Werle, 121 Hawaiʻi 274, 

278, 218 P.3d 762, 766 (2009) (testimony from licensed medical technologist

that he tested the defendant’s blood for alcohol concentration and 

“outlin[ing] his training and experience in the use and calibration of . . . 

the device he used to test [the defendant’s] blood sample” (internal 

quotations omitted)); State v. Kemper, 80 Hawaiʻi 102, 104-05, 905 P.2d 77, 

79-80 (App. 1995) (testimony from qualified HPD criminalist that she 

calibrated the Intoxilyzer and that “the test was performed properly and that 

the results are accurate” (internal quotations omitted)); State v. Young, 8 

Haw. App. 145, 148, 795 P.2d 285, 288 (1990) (testimony from HPD certified 

Intoxilyzer operator-supervisor that, based on her accuracy checks, the 

Intoxilyzer was working “properly and accurately” on the date it was 

administered to the defendant); State v. Ofa, 9 Haw. App. 130, 132-33, 828 

P.2d 813, 815-16 (1992) (testimony from HPD criminalist and certified 

Intoxilyzer operator-supervisor that calibration checks of an Intoxilyzer 

were periodically performed and that results were reflected in a

concurrently-admitted record book); State v. Matsuda, 9 Haw. App. 291, 293, 

836 P.2d 506, 507 (1992) (testimony from “HPD evidence specialist” and 

certified Intoxilyzer supervisor that “he tested the Intoxilyzer . . . for 

accuracy” prior to and following its use on the defendant); State v. 

Hamasaki, 7 Haw. App. 542, 542, 783 P.2d 1235, 1236 (1989) (testimony from 

HPD criminalist and certified Intoxilyzer operator-supervisor that he 

conducted calibration testing of the Intoxilyzer).
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37

of forms, and our decision in this case will not require the 

State in every OVUII prosecution to bring to the trial the

Intoxilyzer supervisor who conducted the machine’s most recent 

calibration testing. In this particular case, however, no 

admissible evidence was adduced in conjunction with the 

calibration testing data to establish the Intoxilyzer’s 

accuracy, therefore rendering Davis’s breath test results 

inadmissible for lack of the requisite foundation.

B. Admissibility under Business Records Exception, 

HRE Rule 803(b)(6)

The State also sought to admit Sworn Statements 1 and 

2 as business records under HRE Rule 803(b)(6) (1993 & Supp. 

2002). “Although ordinarily the proponent of hearsay is 

entitled to ‘shop around’ among the exceptions, the public 

records exception of [the Federal Rules of Evidence] preempts 

this subject matter [of business records] and forecloses access 

to business records admissibility.” Addison M. Bowman, Hawaii 

Rules of Evidence Manual § 803-3[6][F], at 8-41 (2016-2017 ed.). 

Thus, it is generally understood that records excluded by HRE 

Rule 803(b)(8) cannot be admitted through the “back door” as a 

business record under HRE Rule 803(b)(6). See United States v. 

Weiland, 420 F.3d 1062, 1074 (9th Cir. 2005) (“The government 

may not circumvent the specific requirements of [Federal] Rule

[of Evidence] 803(8) by seeking to admit public records as 
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38

business records under Rule 803(6). Nor may the government 

attempt to combine Rules 803(6) and 803(8) into a hybrid rule to 

excuse its failure to comply with either.”); United States v. 

Orellana-Blanco, 294 F.3d 1143, 1149 (9th Cir. 2002) (“When 

public records are used against a defendant in a criminal 

prosecution, the public records exception is the exclusive 

applicable hearsay exception.”); United States v. Cain, 615 F.2d 

380, 382 (5th Cir. 1980) (“[S]tatements inadmissible as public 

agency reports under Rule 803(8) may not be received merely 

because they satisfy Rule 803(6) . . . section (6) does not open 

a back door for evidence excluded by section (8).”).

As discussed above, Sworn Statements 1 and 2 were not 

admissible as public records under HRE Rule 803(b)(8). The 

State may not “circumvent the requirements” of HRE Rule 

803(b)(8)(B) by seeking their admission under HRE Rule 

803(b)(6). Bowman, supra, § 803-3[6][F], at 8-41; Weiland, 420 

F.3d at 1074 (indicating that the business records hearsay 

exception is not an avenue for admitting evidence that is 

inadmissible under the public records exception). Therefore, 

Sworn Statements 1 and 2 were not admissible as business records 

under HRE Rule 803(b)(6).
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39

IV. CONCLUSION

Sworn Statements 1 and 2 were improperly admitted

under the public records exception, as they contained an 

evaluative opinion that does not constitute a “matter observed” 

within the meaning of HRE Rule 803(b)(8). Because there was no 

other evidence presented in this case as to the Intoxilyzer 

calibration testing, the State failed to lay a sufficient

foundation that the Intoxilyzer was in proper working order when 

the breath test was administered to Davis. The district court 

thus erred in admitting the Operator Statement (which contained 

the result of Davis’s breath test) into evidence in light of the

improper introduction of the calibration records. As the breath 

test result was wrongly admitted, the State failed to show that 

Davis’s breath alcohol concentration was .08 or more grams of 

alcohol per 210 liters of breath, an essential element of the 

offense of OVUII under HRS § 291E-61(a)(3).
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40

Accordingly, the ICA erred in affirming the district 

court’s November 29, 2012 Order and Notice of Entry of Order. 

We therefore vacate the ICA’s July 29, 2015 Judgment on Appeal 

and the district court’s November 29, 2012 Order and Notice of 

Entry of Order and remand the case for a new trial.

Phyllis J. Hironaka

for petitioner

James M. Anderson

for respondent

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack 

/s/ Michael D. Wilson