State v. McKellar , 230 P.3d 433 ( 2010 )

STATE OF HAWAI``I, Plaintiff-Appellee,
v.
SCOTT E. McKELLAR, Defendant-Appellant.

No. 29891.

Intermediate Court of Appeals of Hawaii.

May 13, 2010.

Anne K. Clarkin, Deputy Prosecuting Attorney for Plaintiff-Appellee.

Earle A. Partington, for Defendant-Appellant.

SUMMARY DISPOSITION ORDER

NAKAMURA, Chief Judge, LEONARD, J., and Circuit Court Judge KIM, in place of FOLEY and FUJISE, JJ., all recused.

Defendant-Appellant Scott E. McKellar (McKellar) appeals from the Judgment entered on May 22, 2009 in the District Court of the First Circuit, Honolulu Division (District Court).^[1] McKellar was convicted of Excessive Speeding, in violation of HRS § 291C-105(a) (1) (2007).

On appeal, McKellar contends that the District Court erred by admitting, over objection,^[2] the laser speed reading of McKellar's vehicle because the State failed to adduce the requisite foundation for admissibility of the laser gun speed reading.

Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we resolve McKellar's point of error as follows:

As the State acknowledges on appeal, the State failed to adduce evidence that the laser gun was tested according to the manufacturer's recommended procedures in order to establish sufficient foundation for the laser gun reading. See State v. Assaye, 121 Hawai``i 204, 210-14, 216 P.3d 1227, 1233-37 (2009). Without the laser gun reading, there was insufficient evidence to convict McKellar of Excessive Speeding.

For this reason, the District Court's May 22, 2009 Judgment is reversed.

NOTES

[1] The Honorable T. David Woo presided.

[2] McKellar objected on the ground of lack of foundation.