ICA overturns conviction for excessive speeding violation

On June 9, 2011, the Hawaii Intermediate Court of appeals issued an unpublished summary disposition order in State v. Eid, No. 29587. In Eid, the Defendant was convicted of excessive speeding (30 mph over the posted speed limit) in the District Court of the First Circuit, Kaneohe Division, Hon. David W. Lo presiding. On appeal, the Defendant argued that his conviction should be set aside as the State failed to adequately lay a foundation for the admission of the "speed check card" and speedometer reading for the officer's squad car.

The ICA agreed, noting that the state had failed to lay the requisite predicate as set out in State v. Fitzwater, 122 Hawai’i 354 (2010) for the admission of such evidence. "In particular, the State failed to prove ‘the manufacturer of the equipment used to perform the check[,]’ . . . insofar as only the manufacturer of the "master head" and not the entire speed check testing assembly referred to as "the dynamometer," was established." In the absence of evidence that Defendant was going 30 mph over the speed limit, the conviction could not stand. However, there was sufficient evidence to prove the lesser-included offense of noncompliance with speed limit.

Dissenting, Chief Judge Nakamura noted that the State had introduced extensive evidence showing that the machinery in question was in good working order. Further, the observed speed of the Defendant was high enough that the margin of error would have established Defendant’s speed being in excess of 30 miles per hour over the posted speed limit. Judge Nakamura stated that the Fitzwater factors were applicable "where a manufacturer's instructions for using the device and for training exist and the device is sufficiently complex that it is necessary for such recommendations to be followed to properly operate the device." However, Judge Nakamura believed that when manufacturer's recommendations do not exist, or the individuals using the device have sufficient training and expertise to operate it, an absence of said recommendations should not prohibit the state from establishing an adequate foundation.