United States v. Kent Dewater, United States of America v. Robert F. McKenney Jr.

This is a joint appeal of two separate convictions for driving under the influence. Each appellant was convicted of operating a vehicle while having 0.10 percent or greater weight of alcohol in his blood in violation of Haw.Rev.Stat. § 291-4(a)(2), which is assimilated into federal law through 18 U.S.C. § 13 , the Assimilative Crimes Act.

The appellants were found guilty by a federal magistrate. Those convictions were appealed to the district court and the district court, Judge Harold Fong presiding, affirmed.

The principal evidence in these cases was the results of intoxilyzer tests performed on the appellants. Admission into evidence of these test results was objected to on the grounds that the results were inadmissible hearsay evidence and that admission into evidence violated the Sixth Amendment confrontation clause.

At trial the magistrate overruled defense counsel’s objections holding that the test results fell under the business records exception to the hearsay rule. Fed.R.Evid. 803(6). The district court affirmed finding, however, that the test results were admissible under the public records and reports exception to the hearsay rule. Fed.R.Evid. 803(8). The district…