IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o--- 

________________________________________________________________

STATE OF HAWAII, 

Respondent/Plaintiff-Appellee,

vs.

ANTHONY R. VILLENA,

Petitioner/Defendant-Appellant.

________________________________________________________________

SCWC-13-0000030

 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-13-0000030; CASE NO. 1DTA-12-01321)

AUGUST 15, 2017

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

OPINION OF THE COURT BY WILSON, J.

This case arises from Petitioner/Defendant-Appellant 

Anthony R. Villena’s (Villena) conviction for the offense of 

operating a vehicle under the influence of an intoxicant 

Electronically Filed

Supreme Court

SCWC-13-0000030

15-AUG-2017

08:09 AM
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(OVUII). On appeal, Villena asserts the Intermediate Court of 

Appeals (ICA) erred in holding that the State laid a sufficient 

foundation to introduce the results of Villena’s blood alcohol 

test results. Specifically, Villena raises four grounds for the

State’s failure to lay a sufficient foundation for introduction 

into evidence of the blood test results:

1. Whether the ICA gravely erred in affirming the trial 

court's admission of Villena's blood alcohol test result 

without first requiring the State to (1) introduce its 

scientific evidence via a duly qualified expert; (2) prove 

satisfaction of the three Montalbo factors in arriving at 

the test result; and (3) demonstrate compliance with the 

Souza requirements for test results produced by an 

instrument;

2. Whether the ICA gravely erred in affirming the trial 

court's admission of Villena's blood alcohol test result 

without first requiring the State to demonstrate strict 

compliance with HAR §11-114-23(b) and (a)(3) requirements 

which have a direct bearing on the accuracy of the alcohol 

test result;

3. Whether the ICA gravely erred in affirming the trial 

court's admission of State's Exhibit#1 (the Letter License) 

as hearsay, inadmissible under either HRE 803(b)(6) or (8), 

and in violation of Villena's Confrontation rights; and

4. Whether the ICA gravely erred in ruling that the trial 

court's erroneous admission of State's Exhibit#2 (MT 

Perry's Sworn Statements) was mere harmless error. 

We affirm the ICA’s judgment and hold that the State laid a 

proper foundation to introduce the results of Villena’s blood 

test because the State’s licensing letter was admissible as 

nonhearsay.
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I. Background

A. District Court Proceedings

On March 6, 2012, Villena was charged by complaint 

with OVUII, in violation of Hawaiʻi Revised Statutes (HRS) § 

291E-61(a)(4) (2011).

1 Villena pled not guilty to the charge. 

The bench trial commenced on October 18, 2012, continued on 

December 6, 2012, and ended on December 19, 2012.2 

1. Testimony of Officer Wade Ikehara

The State presented testimony from Honolulu Police 

Department (HPD) Officer Wade Ikehara that on February 22, 2012, 

he observed Villena driving at 75 miles per hour, 25 miles per 

hour over the speed limit of 50 miles per hour. Officer Ikehara 

next noticed that Villena’s vehicle crossed over the dashed 

lines separating two of the lanes. Although Officer Ikehara 

activated his lights, Villena’s vehicle did not stop until he 

reached a DUI roadblock. At the DUI roadblock, Officer Ikehara 

approached Villena’s vehicle and noted that Villena’s eyes were 

“red, bloodshot, and glassy,” his appearance was disheveled, and 

 

1 HRS § 291E-61(a)(4) (2011) provides:

(a) 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:

. . .

(4) With .08 or more grams of alcohol per one hundred milliliters

or cubic centimeters of blood.

2 The Honorable Clarence A. Pacarro presided.
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he detected “a strong odor of an alcoholic type beverage on his 

breath.” Defense counsel stipulated that Villena performed the 

field sobriety test and Officer Ikehara subsequently made the 

arrest. Villena was then transported to the Kalihi Police 

Station. 

At the police station, Officer Ikehara read Villena an 

implied consent form and Villena elected to take a blood test. 

Because Villena selected that option, Officer Ikehara 

transported Villena to the Alapai Police Station to have his 

blood drawn. Officer Ikehara waited with Villena for 20-30 

minutes until the arrival of medical technologist Karla Perry 

(Perry). Upon her arrival, Officer Ikehara listened to her 

explain the procedures and observed her withdraw blood from 

Villena. 

2. Testimony of Medical Technologist Karla Perry

The State presented testimony from Perry. This 

testimony was presented out of order, prior to the completion of 

Officer Ikehara’s testimony, due to Perry’s scheduling 

conflicts.

Perry testified as to her qualifications as a medical 

technologist. She stated she was employed as a medical 

technologist with the City and County of Honolulu since 2004. 

She graduated from the University of Hawaiʻi at Mānoa with a 

bachelor of science in medical technology, was board certified 
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by the American Society of Clinical Pathologists, and was state 

certified by the state Department of Health (DOH).

Perry asserted that she was qualified under Hawaiʻi

Administrative Rules (HAR) Title 11, chapter 114, which 

regulates blood alcohol testing, to draw blood and perform 

alcohol analysis. Over defense counsel’s objection for lack of 

foundation, the court allowed the State to lay additional 

foundation to support Perry’s testimony. 

The State sought to lay a foundation for Perry’s 

qualification as a medical technologist under HAR Title 11, 

chapter 114. Perry explained that Title 11 requires an alcohol 

analyst or supervisor to be a medical technologist licensed by 

the state. With her bachelor of science degree and as a statelicensed medical technologist, Perry asserted that she fulfilled

the requirement to be an alcohol analyst under HAR Title 11, 

chapter 114. Perry also explained that she qualified as an 

alcohol testing supervisor because she fulfilled the sole 

requirement that she have four years of experience as an alcohol 

analyst.

3 

 

3 Perry’s assertion that four years of experience is sufficient to 

be an alcohol testing supervisor was incorrect. The minimum number of years 

of experience is five years. HAR § 11-114-19(b)(3) (1993). Nonetheless 

Perry was qualified to be a supervisor as she had eight years of experience 

at the time she tested Villena’s blood sample. 
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To gain admission of the results of the blood alcohol 

test results, the State then attempted to introduce evidence to 

establish that the City and County of Honolulu Health Services 

Division Laboratory (Laboratory) where Perry worked was a 

licensed laboratory under Title 11.4 Defense counsel objected 

for lack of foundation. Perry testified that she had personal 

knowledge that the Laboratory was licensed as of November 2011. 

As the laboratory supervisor, Perry received a licensing letter 

from DUI coordinator Dr. Tam Nguyen stating that the Laboratory 

was licensed under HAR Title 11, chapter 114. Perry testified 

that the letter was kept in the regular course of the 

 

4 Under HAR Title 11, chapter 114, laboratories conducting alcohol 

tests are required to be licensed by the director of health. A license is 

granted if the laboratory meets the following requirements: 

(1) Is physically located in this State;

(2) Is licensed by the department as a clinical laboratory;

(3) Has adequate facilities, personnel, equipment, and 

instrumentation;

(4) Includes in its staff an alcohol testing supervisor who 

is qualified under section 11-114-19;

(5) Uses alcohol testing procedures approved in writing by 

the DUI coordinator or previously approved by the director 

of health as required by section 11-114-22 and demonstrates 

proficiency in those procedures;

(6) Has a quality assurance program approved in writing by 

the DUI coordinator which includes a chain of custody 

procedure; and

(7) Participates in and meets the requirements of a 

performance evaluation program for alcohol testing approved 

in writing by the DUI coordinator as required by section 

11-114-21 at no cost to the department.

HAR § 11-114-18(b).
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Laboratory’s business. The State moved to enter the DUI 

coordinator’s licensing letter, marked as State’s Exhibit 1, 

into evidence in order to establish the reliability of the 

laboratory, methods, and instrument used to measure Villena’s 

blood alcohol content. Defense counsel objected on the basis of 

authentication, lack of foundation, hearsay, and violation of 

Villena’s rights under the Confrontation Clause. The court took

the letter’s admission into evidence under advisement. 

Perry next testified regarding the enzymatic method 

used to analyze blood samples. She testified that this method 

was approved by Dr. Tam Nguyen, the statewide DUI coordinator, 

in September 2009. Over objections from defense counsel for 

lack of foundation, Perry stated that the enzymatic method is 

accepted in the scientific community as being accurate and 

reliable. 

Perry identified the instrument used to test the blood 

samples as the “Ace Alera.” Again, over defense counsel’s 

objection for lack of foundation, Perry stated that the Ace 

Alera was approved by the DUI coordinator. Perry testified she 

was trained to calibrate and operate the Ace Alera by her thensupervisor in September 2009. As part of her training, Perry 

reviewed the manufacturer’s manual, which explained how to 

calibrate and operate the Ace Alera. She testified that 

calibration is conducted by placing the reagents and the 
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appropriate samples on the instrument; once the instrument runs 

it informs the technician “whether it passed or failed.” Perry 

testified that she calibrated the Ace Alera prior to testing the 

samples and the instrument passed. 

Following Perry’s testimony regarding the Ace Alera 

instrument’s calibration, the State sought to prove Villena’s 

blood alcohol content by introducing the blood test result

measured by the Ace Alera. Perry testified that Villena’s blood 

alcohol content was “0.16 grams of alcohol per 100 cubic 

centimeters of whole blood.” Defense counsel objected to 

Perry’s testimony on the basis that the State laid an 

insufficient foundation to introduce Villena’s blood test 

result. Defense counsel also asserted that the State failed to 

demonstrate that the testing of Villena’s blood was conducted in 

accordance with the requirements of HAR Title 11, chapter 114. 

The district court clarified that because Perry was testifying 

out of order, Perry was allowed to testify but the testimony and 

exhibits would not be admitted until the State established 

proper foundation through Perry and its other witnesses. 

The State then sought to move into evidence the blood 

alcohol testing statement—marked as State’s Exhibit 2—which 

contained Villena’s blood alcohol content results of 0.16. The 

court took admission of the exhibit under advisement. 
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3. Admission of the DUI Coordinator’s Licensing Letter 

Following the testimonies of Officer Ikehara and 

Perry, the court heard argument as to the admission of the DUI 

coordinator’s licensing letter and the blood alcohol testing 

statement. 

As noted previously, the DUI coordinator’s licensing 

letter is a letter to Perry, dated November 5, 2011, from the 

DUI coordinator. The letter states that it “constitutes a 

license for the City and County of Honolulu Health Services 

Division Laboratory to conduct blood alcohol testing in 

accordance with Hawaii Administrative Rules, Title 11, Chapter 

114 (HAR-11-114).” The letter explains that the licensure of 

the Laboratory was based on the Laboratory “having fulfilled 

requirements of HAR-11-114-18(b).” In addition, the letter 

confirms that the Ace Alera instrument was approved “to be used 

for the determination of blood alcohol concentration.” 

Specifically, the letter states that “[t]he addition of the ACEALERA Clinical Chemistry analyzer . . . to the ‘Quantitative 

Enzymatic Determination of Alcohol’ procedure[] has been 

evaluated” as meeting the requirements of HAR § 11-114-22. The 

letter bears the seal of the State of Hawaiʻi, states that it “is 

a true and correct copy of a public document on file in the 

Department of Health,” and is signed by the DUI coordinator, who 

is also designated as the custodian of records. 
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The State argued that the DUI coordinator’s licensing 

letter was admissible because it fell within two hearsay 

exceptions: HRE Rule 803(b)(6), as a record of a regularly 

conducted activity, and HRE Rule 803(b)(8), as a public record 

with a self-authenticating seal.5 Over defense counsel’s 

arguments that neither of the hearsay exceptions applied and 

that admission of the letter would violate Villena’s 

confrontation rights, the court admitted the DUI coordinator’s 

 

5 HRE Rule 803 (2012) provides in relevant part:

The following are not excluded by the hearsay rule, even 

though the declarant is available as a witness:

. . . 

(b) Other exceptions.

. . .

(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. 

. . .

(8) Public records and reports. 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.
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licensing letter into evidence. The State also sought to admit

a blood alcohol testing statement containing a sworn statement 

from Perry that she followed applicable procedures in testing 

Villena’s blood (the State’s “Exhibit 2”). Over defense 

counsel’s objections based on hearsay and lack of foundation, 

the court admitted the blood alcohol testing statement into 

evidence based on Perry’s testimony. 

4. Closing Arguments

In closing argument, the State argued it laid a 

sufficient foundation to admit the blood test result. The State 

pointed to Perry’s testimony, which demonstrated that the 

enzymatic method is an approved method and that Perry was

trained in accordance with state regulations. The State also 

referenced the DUI coordinator’s licensing letter, which 

licensed Perry’s Laboratory and confirmed the DUI coordinator’s 

approval of the procedure and equipment used to test Villena’s 

blood. The State argued that Perry’s testimony and the 

licensing letter were sufficient to lay an adequate foundation 

to introduce the blood test result. 

Defense counsel argued that the State did not lay a 

sufficient foundation to introduce scientific evidence because 

Perry was not qualified as an expert as required by HRE Rule

702. Thus, defense counsel argued that Perry’s testimony did not 
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constitute sufficient foundation to prove that the enzymatic 

method is a sound scientific procedure. 

5. Motion for Judgment of Acquittal

Following closing arguments, Defense counsel made a 

motion for judgment of acquittal again asserting that the State 

did not lay an adequate foundation to admit evidence of the 

blood test results. The district court denied defense counsel’s 

motion for judgment of acquittal. 

The district court found Villena guilty and sentenced 

Villena to a $400 fine plus court costs, and other mandatory 

conditions. 

B. ICA Proceedings

The ICA, in its May 19, 2015 Summary Disposition 

Order, affirmed the Judgment of the district court. The ICA 

concluded: 1) evidence of Villena’s blood test result was 

properly admitted because the record shows that the DUI 

coordinator approved the testing procedure and the instrument; 

2) the DUI coordinator licensing letter was properly admitted as 

a self-authenticated public record; and 3) the blood alcohol 

testing statement was improperly admitted into evidence but that 

error was harmless in light of Exhibit 1 and Perry’s testimony. 

The ICA also determined that Villena waived the argument that 

the State failed to strictly comply with HAR § 11-114-23(a)(3) 

and (b) because Villena did not timely object. As to Villena’s 
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confrontation rights, the ICA held that the DUI coordinator’s 

licensing letter was a nontestimonial record and therefore not 

subject to the Confrontation Clause. 

II. Standards of Review

A. Admissibility of Hearsay

“[W]here the admissibility of evidence is determined 

by application of the hearsay rule, there can be only one 

correct result, and the appropriate standard for appellate 

review is the right/wrong standard.” State v. Moore, 82 Hawaiʻi

202, 217, 921 P.2d 122, 137 (1996) (internal quotation marks and 

citation omitted).

B. Evidentiary Foundation

Before a test result may be introduced into evidence,

“a foundation must be laid showing that the test result can be 

relied on as a substantive fact.” State v. Werle, 121 Hawaiʻi

274, 280, 218 P.3d 762, 768. “When a question arises regarding 

the necessary foundation for the introduction of evidence, the 

determination of whether proper foundation has been established 

lies within the discretion of the trial court, and its 

determination will not be overturned absent a showing of clear 

abuse.” State v. Eid, 126 Hawaii 430, 440, 272 P.3d 1197, 1207 

(2012) (quoting State v. Assaye, 121 Hawaii 204, 210, 216 P.3d 

1227, 1233 (2009)).
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III. Discussion

A. The Trial Court Did Not Err in Admitting Villena’s Blood 

Test Results

To introduce blood test results proving intoxication, 

the State must lay a proper foundation. Werle, 121 Hawaiʻi at 

282, 218 P.3d at 770. “As part of the foundation, the 

prosecution must establish the reliability of the test results 

which establish intoxication.” Id.; see also State v. Wallace,

80 Hawaiʻi 382, 407, 910 P.2d 695, 720 (1996) (explaining “[a]

fundamental evidentiary rule is that before the result of a test

made out of court may be introduced into evidence, a foundation

must be laid showing that the test result can be relied on as a

substantive fact” (citation omitted)). 

To determine the reliability of the enzymatic blood 

testing method used here, the State must show compliance with

the factors we laid out in State v. Montalbo. 73 Haw. 130, 828 

P.2d 1274 (1992). Under Montalbo, whether a scientific 

procedure—such as the enzymatic method, which Perry used to test 

Villena’s blood—is reliable depends on three factors: (1) the 

validity of the underlying principle, (2) the validity of the 

testing method applying the principle, and (3) the proper 

application of the testing method. Id. at 136, 828 P.2d at 

1279. To demonstrate the validity of the scientific evidence, 

expert testimony is needed. Werle, 121 Hawaii at 282, 218 P.3d 
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at 770. Montalbo requires that the expert’s opinion “have a 

reliable basis in the knowledge and experience of his or her 

discipline.” Werle, 121 Hawaiʻi at 283, 218 P.3d at 771. 

However, we have recognized a “shortcut” to 

establishing Montalbo reliability for blood testing procedures 

when the State proves “that the DUI coordinator gave written 

approval of the procedure and instrument used to test 

[defendant’s] blood.” Werle, 121 Hawaii at 284, 218 P.3d at 

772. Such written approval by the DUI coordinator “relieves the 

prosecution of the burden of presenting expert testimony to 

establish the reliability” of the instrument and procedure used. 

Id. at 285, 218 P.3d at 773. In other words, written approval

from the DUI coordinator is a shortcut for the first two factors 

of Montalbo—which require the State to demonstrate the validity 

of the underlying principle and the validity of the testing 

method applying the principle. Accordingly, to lay a foundation 

to admit Villena’s blood test results under the shortcut method, 

the State needed to show 1) that the DUI coordinator gave 

written approval of the enzymatic method and the blood testing 

instrument (the Werle shortcut), and 2) that Perry properly 

conducted the enzymatic method on Villena’s blood (the third 

Montalbo factor). 
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1. The DUI Coordinator’s Licensing Letter Was Admissible 

Nonhearsay as a Document of Independent Legal 

Significance and Satisfied the Werle Shortcut

In order to satisfy the Werle shortcut, the State must

establish that the DUI coordinator gave “written approval” of 

the procedure and instrument used. Werle, 121 Hawaiʻi at 283-4, 

218 P.3d at 771-2. This is in accord with the statutory 

requirement for blood alcohol testing procedures to “have been 

approved in writing by the DUI coordinator.” HAR § 11-114-

22(a). Here, the written approval of the procedure and 

instrument is a letter to Perry, dated November 5, 2011, from 

the DUI coordinator. The letter states that it “constitutes a 

license for the City and County of Honolulu Health Services 

Division Laboratory to conduct blood alcohol testing in 

accordance with Hawaii Administrative Rules, Title 11, Chapter 

114 (HAR-11-114).” The letter explains that the licensure of 

the Laboratory was based on the Laboratory “having fulfilled 

requirements of HAR-11-114-18(b).” In addition, the letter 

confirms that the Ace Alera instrument was approved “to be used 

for the determination of blood alcohol concentration.” 

Specifically, the letter states that “[t]he addition of the ACEALERA Clinical Chemistry analyzer . . . to the ‘Quantitative 

Enzymatic Determination of Alcohol’ procedure[] has been 

evaluated” as meeting the requirements of HAR § 11-114-22. This 

letter is precisely the type of evidence the Werle shortcut 
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requires. Unlike the licensing letter at issue in Werle which 

we found deficient for failing to mention the precise testing 

method and instrument used, the licensing letter here 

specifically approves the instrument and method used to test 

Villena’s blood. See Werle, 121 Hawaiʻi at 284, 218 P.3d at 772. 

Accordingly, the licensing letter satisfies the Werle shortcut 

to show that the DUI coordinator gave written approval of the 

method and instrument used to test the defendant’s blood.

However, Villena asserts the court erred in admitting 

the letter because it was inadmissible hearsay. Hearsay is a 

“statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted.” HRE Rule 801 (2012). This 

definition is identical to that contained in the Federal Rules 

of Evidence (FRE) Rule 801(c). Hearsay “is not admissible 

except as provided by these rules[.]” HRE Rule 802 (2012). It 

is well-settled that statements of independent legal 

significance are not hearsay. See FRE Rule 802(c) cmt. (“If the 

significance of an offered statement lies solely in the fact 

that it was made, no issue is raised as to the truth of anything 

asserted, and the statement is not hearsay.”); see also A. 

Bowman, Hawaiʻi Rules of Evidence Manual 8-7 (2016)

(characterizing as nonhearsay statements with “independent legal 

significance” which “are not offered to prove the truth of the 
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matter asserted”). This type of evidence is considered 

nonhearsay because the statements are not “offered to prove the 

truth of the matter stated” but instead are “offered simply to 

show that the statement was made.” West Coast Truck Lines, Inc. 

v. Arcata Community Recycling Center, Inc., 846 F.2d 1239, 1246 

n.5 (9th Cir. 1988); see also Gonzales v. City of San Jose, 2015 

WL 2398407, *6 (N.D. Cal. 2015) (noting that admission of a copy 

of a driver’s license into evidence was “hearsay to the extent 

offered to establish Plaintiff's height, weight, and appearance 

on February 13, 2012, as asserted in the license, but not 

hearsay to the extent offered to show the identifying 

information in the Department of Motor Vehicle's records and 

available to Defendants on that day”). This doctrine is often 

applied to evidence of contractual agreements. See Island 

Directory Co. Inc. v. Iva’s Kinimaka Enterprises, Inc., 10 Haw. 

App. 15, 21-22, 859 P.2d 935, 939 (1993). In Island Directory, 

two parties disputed the existence of a valid contract. Id. at 

20, 859 P.2d at 939. One party sought to introduce a written 

document which the other party admitted signing. Id. The ICA 

held that the document was nonhearsay because it “was not 

offered into evidence to prove the truth of its contents, but to 

prove that it was made, signed by Iva, and expressed the legal 

relationship of the parties.” Id. at 22, 859 P.2d at 939-40.

The existence of the document was “highly relevant because its 
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legal effect [was] at issue in the case.” Id. Similarly, 

Professor Bowman uses as an illustration of a nonhearsay 

statement of independent legal significance a declaration by an 

insured that “I hereby cancel my insurance policy.” A. Bowman, 

Hawaiʻi Rules of Evidence Manual 8-7 (2016). Because these words 

effect a cancellation, they are “not only evidence, but 

accomplish the legal event. The words effect the cancellation 

as surely as words of slander produce a tort.” Id. 

Likewise here, the licensing letter was not being 

introduced to prove the truth of its contents, but rather 

because its legal effect (that the lab had received written 

approval from the DUI coordinator licensing its instruments and 

methods) was at issue in the case.

6 To satisfy the Werle

shortcut for laying a proper foundation to introduce blood test 

results, the State must show “that the DUI coordinator gave 

written approval of the procedure and instrument used to test 

[the defendant’s] blood.” Werle, 121 Hawaiʻi at 284, 218 P.3d at 

772. The State introduced the licensing letter to show that the 

DUI coordinator had given written approval of the enzymatic 

method and the blood testing instrument used to test Villena’s 

blood. 

 

6 In seeking to admit the letter into evidence, the State described 

it as “a letter, um, which from them [the State] went to Ms. Karla Perry

which purports to establish – uh, constitute a license that the City and 

County of Honolulu is licensed to conduct the blood alcohol testing.” 
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Accordingly, we hold that the licensing letter was 

admissible as nonhearsay and conclude that the trial court did 

not err in admitting the letter.

7 Because we find the letter 

admissible, we also conclude that the State met its burden under 

the Werle shortcut to demonstrate that the State gave written 

approval of the enzymatic method and Ace Alera instrument. 

2. Perry’s Testimony Satisfied the Third Montalbo Factor and 

Therefore the State Laid a Proper Foundation to Admit the 

Results of Villena’s Blood Test Results

Having found that the State met its burden under the 

Werle shortcut to satisfy the first two Montalblo factors, we

next look to the final Montalbo factor, which requires the State 

to demonstrate “the proper application of the technique on the 

particular occasion.” Montalbo, 73 Haw. at 136, 828 P.2d at 

1279. Perry testified that she was employed as a medical 

technologist with the City and County of Honolulu and was

qualified under HAR Title 11, chapter 114, which regulates blood 

alcohol testing, to draw blood and perform alcohol analysis. 

She testified that she was licensed by the State as both an 

alcohol analyst and an alcohol testing supervisor. Perry 

testified that she used the “Ace Alera” instrument manufactured 

by Alpha Wasserman to conduct blood tests based on the 

 

7 Because we conclude that the licensing letter is not hearsay, we 

do not reach Villena’s asserted error that admission of the letter violated 

his right to confrontation. However, this does not connote our agreement 

with the ICA conclusion that, as nontestimonial hearsay, the licensing letter 

was “not subject to the Confrontation Clause.” 
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“enzymatic method,” the instrument and method approved by the 

DUI coordinator in the licensing letter. Perry’s testimony that 

she was licensed by the State and tested Villena’s blood using 

the approved instrument and method satisfies the third Montalbo

requirement to demonstrate “the proper application of the 

technique on the particular occasion.” 

Accordingly, we conclude that the State met the burden 

laid out in Werle and Montalbo to establish a foundation to 

introduce Villena’s blood test results.8

IV. Conclusion

For the foregoing reasons, we affirm the ICA’s June 

16, 2015 Judgment on Appeal but for the reasoning set forth 

herein. 

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

 

8 Villena raises two additional issues in his application for 

certiorari, both of which are without merit. We affirm the ICA in concluding 

that Villena waived any objection regarding strict compliance with HAR § 11-

114-23(b) and (a)(3) by failing to timely object at trial. 

We also affirm the ICA in concluding that the erroneous admission 

of the State’s Exhibit 2 (a sworn statement by Perry providing additional 

detail regarding the procedures used to test Villena’s blood) was harmless 

error. Perry’s oral testimony and the licensing letter provided sufficient 

foundation for the State to admit the results from Villena’s blood test. 

Accordingly, any error in admitting Exhibit 2 was harmless. 

Phyllis J. Hironaka for 

Petitioner/DefendantAppellant

Brian R. Vincent for 

Respondent/PlaintiffAppellee