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REQUIREMENTS FOR THE ADMISSION OF BREATH TESTING

What are the requirements for the admission of the intoxilizer breath tests in DUI cases? This question has been litigated for years. To some extent, the standards have been modified and changed. The intoxilizer is obviously subject to a Daubert attack.  Johnson v. Commonwealth has held that breath testing may not be flawless; however, it has been determined for years to have sufficient reliability to be admissible in evidence and to sustain a conviction. 12 SW 3d 258, 262 (Ky. 1999). Commonwealth v. Roberts set out the requirements for the admission of the breath test result. 122 SW 3d 524, 528 (Ky. 2003).  Roberts requires that the machine be properly checked and serviced and in proper working order, that the test consists of steps in the sequence set forth in 500 KAR 8:030 (2), that a certified operator has the person under personal observation for at least 20 minutes prior to the test, that the person tested not have nasal or oral intake, that the test be given by an operator who is properly trained and certified to operate the machine, and that the test was performed in accordance with standard operating procedures.  Id.

What “Standard Operating Procedures” consist of is not all that clear. The Department of Criminal Justice Training (“DOCJT”) has a manual and lesson plans that are used when training officers. The manual is NOT prepared by the machine manufacturer but rather bythe DOCJT. It would certainly appear that the manual and the lesson plans of the DOCJT are a part of the standard operating procedures. KRS 189A.103(4) as amended reads as follows:

A breath test shall consist of a test which is performed in accordance with the manufacturer’s instructions for the use of the instrument. The secretary of the Justice and Public Safety Cabinet shall keep available for public inspection copies of these manufacturer’s instructions for all models of breath testing devices in use by the Commonwealth of Kentucky[.]

In a recent case in Gallatin County, Kentucky, the Honorable Edward Bourne contested these requirements. His position was that KRS 189A.103 (4) requires compliance with the manufacturer’s instructions and requires that these instructions be kept available for public inspection. Unquestionably, no manufacturer’s instructions were produced in a motion to suppress the intoxilizer in the case. The case is Jackie Scott v. Commonwealth of Kentucky, Case Number 21-XX-00003 (Gallatin Circuit Court, January 27, 2022)

The manufacturer of the intoxilizer machine, CMI, Inc. (“CMI”), is located in Kentucky and is therefore subject to subpoena in Kentucky courts. Mr. Bourne issued a Subpoena Duces Tecum to produce the manufacturer’s instructions as required by statute. CMI objected to this subpoena, and at its request, a motion to quash the subpoena was sustained. Looking at the entire record of the case, either there were no manufacturer’s instructions or the manufacturer refused to submit any publication they had claiming whatever documentation they did have was proprietary. Ultimately, a conditional plea was entered, and the case was appealed to the Gallatin Circuit Court.

As an aside, readers should be aware of the unusual method by which misdemeanor cases in  Kentucky are appealed. Misdemeanor cases, including most DUIs, are heard by the District Court. The appeal from District Court is not to the Court of Appeals but rather to the Circuit Court, which is Kentucky’s court that handles felony cases.  The DUI charge in the above-mentioned case originated in the District Court, as it rightfully should have.  The appeal was taken to the Gallatin Circuit Court. The Court of Appeals or the Supreme Court would only get involved in a case such as this upon a Motion for Discretionary Review filed by the non-prevailing party in the Circuit Court appeal.

On appeal, Judge Brueggemann, in a well-reasoned opinion, reversed and remanded this case. The Court stated “…..it is likewise acknowledged by all, and is recited in the trial court’s findings of fact, that to date no manufacturer’s instructions have been provided by the instrument’s manufacturer to either the Commonwealth or the Defendant”. Amended Opinion and Order Reversing at 7, Jackie Scott v. Commonwealth of Kentucky, Case Number 21-XX-00003 (Gallatin Circuit Court, January 27, 2022). The statute requires that “a breath test shall consist of a test which is performed in accordance with the manufacturer’s instructions for use of the machine…” Id. Without that in evidence, there is no basis on which to find these documents could have “a distinction without a difference”. Id. This would be a comparison of the DOCJT manual and, if it exists, the manufacturer’s instructions.  The Roberts court found that the instructions used to certify the accuracy of the machine compared to the DOCJT instructions was a “distinction without a difference”. Judge Brueggemann reversed the lower court holding you cannot make that determination in this case as there is nothing to compare the DOCJT manual too, as no manufacturer’s instructions were presented. In reversing and remanding the case, the Court gave the opportunity to the Commonwealth to produce the manufacturer’s instructions if, in fact, they exist.  Id. at 10. Otherwise, the intoxilizer cannot be admitted into evidence as there can be no showing, as required by statute, that the machine was operated in a manner consistent with the manufacturer’s instructions. Id.

Stay tuned…more to follow. To date, there are no known manufacturer’s instructions for the operation of the intoxilizer machine. How the Commonwealth chooses to handle this matter will be interesting. There are a number of avenues available, but only time will tell.

About Wilbur Zevely

Wilbur Zevely
Wilbur M. Zevely is a partner in the Florence, KY law firm Busald Funk Zevely, PSC. He has practiced law since 1972. He concentrates his practice in criminal law, domestic relations, and DUI cases. He has defended thousands of clients in criminal trials before Judges and juries. He has practiced throughout Kentucky and Southern Ohio. Mr. Zevely received his B.S. degree in Chemistry from the University of Cincinnati in 1968 with a minor in math. His J.D. is from Salmon P. Chase School of Law in 1972. Prior to entering the practice of law, he worked as a chemist for The Monsanto Co., under contract with the United States Atomic Energy Commission. For many years, Mr. Zevely, has lectured on DUI issues for the Kentucky Association of Criminal Defense Lawyers, (KACDL), the KY Bar Association, the Northern KY Bar Association, and the Kentucky Department of Public Advocacy. He taught for more than 10 years at the week long basic training course at Faubush, KY for the KY Department of Public Advocacy. He writes a regular column on DUI tips for the KACDL news letter. In the early 1970’s Mr. Zevely, incorporated “The 15th Judicial District Public Defender, Inc.,” this was the first State funded Public Defender program in the Northern KY area. Mr. Zevely ran the program for years. The program represented indigent clients in Boone, Gallatin, Grant, Carroll, and Owen Counties. Mr. Zevely along with retired Judge Stanley Billingsley authors the Kentucky Driving Under the Influence Law Book which is a West Law Publication. The book is rewritten annually, and has been published for 19 years. Mr. Zevely has served as director of the KACDL since its formation. Mr. Zevely is a member of the Kentucky Bar Association, the Ohio State Bar Association, KACDL, NACDL, and is admitted to practice in Federal Court for the Southern District of Ohio and the Eastern District of Kentucky. Mr. Zevely received the 2014 Distinguished Lawyer award from the Northern Kentucky Bar Association. He also received the 2015 Lifetime Achievement award from the Northern Kentucky Bar Association.

If you would like to contact the author, please visit: http://www.bfzlaw.com


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