ARTHUR ELDRIDGE v. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 7, 2001; 10:00 a.m.
ORDERED PUBLISHED: February 8, 2002; 2:00 p.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002379-DG
ARTHUR ELDRIDGE
v.
APPELLANT
ON MOTION FOR DISCRETIONARY REVIEW
FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 00-XX-00002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE: We have accepted discretionary review of an
order of the Boyle Circuit Court affirming the ruling of the
Boyle District Court that the results of a breath alcohol test
administered to Arthur Eldridge in conjunction with his arrest
for DUI should not be suppressed.
Eldridge contends that the
breath alcohol test results should be suppressed (1) because the
police officer administering the test failed to observe him for
the required twenty-minute period prior to administering the
test, and (2) because a new observation period was not conducted
after he removed his dentures during the initial observation
period.
Because the trial court’s finding that the police
officer observed Eldridge for the required time is supported by
substantial evidence, and because a new observation period was
not required after Eldridge removed his dentures, we affirm.
On June 26, 1999, Officer Todd Davis of the Danville
Police Department was dispatched to an injury accident at the 127
Bypass and Stewarts Lane in Danville.
Upon arriving at the
scene, Officer Davis discovered that there were no injuries;
however, upon talking to Eldridge, who was involved in the
accident, the officer detected a strong smell of alcohol on his
breath.
The officer also observed that Eldridge’s eyes were
bloodshot, his speech was slurred, and he was very unsteady on
his feet.
Based upon his observations, Officer Davis
administered various field sobriety tests, which Eldridge was
unable to complete.
Officer Davis arrested Eldridge and
transported him to the Boyle County detention center.
On the
Uniform Citation, Officer Davis noted the time of arrest as 2308
(11:08 p.m.).
Upon arriving at the detention center, Officer Davis
obtained Eldridge’s consent to administer a breath alcohol test.
The test was administered on an Intoxilyzer 5000 Breathalyzer®
machine, a device Officer Davis is trained to operate.
Pursuant
to 500 KAR1 8:030 § 1(1), before doing the breath alcohol test,
the individual administering the test is required to observe the
subject for twenty minutes to ensure that he does not eat, drink,
smoke, or put anything in his nose or mouth for that period of
time.
1
At the suppression hearing, Officer Davis testified that,
Kentucky Administrative Regulations.
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according to the breath alcohol clock, he commenced observing
Eldridge at 2313 (11:13 p.m.) and began the test twenty-three
minutes later, at 2336 (11:36 p.m.).
The breath alcohol test
produced a blood alcohol reading of .223.
Eldridge subsequently moved to suppress the breath
alcohol test results on the basis that (1) Officer Davis had not
complied with the twenty-minute observation requirement, and (2)
a new observation period was required when he removed his
dentures during the initial observation period.
hearing was held on March 8, 2000.
A suppression
Following the hearing, the
Boyle District Court ruled that the breath alcohol test results
were admissible.
Following the district court’s ruling, Eldridge entered
a conditional guilty plea pursuant to RCr2 8.09 and then appealed
the ruling to the Boyle Circuit Court.
On September 14, 2000,
the Boyle Circuit Court entered an order affirming the decision
of the district court.
We accepted discretionary review and now
affirm the decision of the Boyle Circuit Court.
First, Eldridge contends that Officer Davis failed to
observe the twenty-minute observation time required by 500 KAR
8:030 § 1(1).
Eldridge argues that while the test was performed
at 2336 (11:36 p.m.), according to jail records, he was delivered
into custody of the jail at 2322 (11:22 p.m.), only fourteen
minutes before the commencement of the test.
RCr 9.78 provides that
2
Kentucky Rules of Criminal Procedure.
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If at any time before trial a defendant
moves to suppress . . . (b) the fruits of a
search, the trial court shall conduct an
evidentiary hearing outside the presence of
the jury and at the conclusion thereof shall
enter into the record findings resolving the
essential issues of fact raised by the motion
or objection and necessary to support the
ruling. If supported by substantial evidence
the factual findings of the trial court shall
be conclusive.
"In the absence of any showing to the contrary, we assume the
correctness of the ruling by the trial court."
Harper v.
Commonwealth, Ky., 694 S.W.2d 665, 668 (1985), cert. denied, 476
U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986); Davis v.
Commonwealth, Ky., 795 S.W.2d 942, 949 (1990).
On March 8, 2000, an evidentiary hearing was held on
Eldridge’s motion to suppress the results of the breath alcohol
test.
At the conclusion of the hearing, the trial court made a
finding of fact that Officer Davis had observed Eldridge for the
required twenty-minute period before administering the test.
The finding of the trial court that Officer Davis
observed Eldridge for the required twenty-minute period is
supported by substantial evidence.
Officer Davis testified at
the suppression hearing that he began observing Eldridge at
11:13 p.m. and administered the test beginning at 11:36 p.m.
In
conjunction with his testimony, Davis referred to an “Intoxilyzer
Instrument Printer Card” previously filed into the record which
documented the testing of Eldridge.
The card is signed by
Officer Davis and includes his handwritten notation, “Observation
Began at 2313 hrs.”
The card contains a computer printout line
stating “Subject Test .223 23:36EDT[.]”
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The testimony of Officer
Davis and the corroborating computer card prepared
contemporaneously with the administering of the test support the
factual finding of the trial court that the observation period
was complied with.
As the district court’s finding is supported
by substantial evidence, that finding is conclusive.
RCr 9.78.
Eldridge argues that the jail records indicate that he
was admitted to the jail at 11:22 p.m. and that, therefore,
Officer Davis could not have begun his observation at 11:13 p.m.
and, at most, the observation period lasted only fourteen
minutes.
However, the jailer testified that most likely the
person admitting Eldridge took the log-in time off of the
computer screen in the admission room and that the jail made no
efforts to synchronize the computer clock and the Breathalyzer®
clock.
Because the clocks were not synchronized, the discrepancy
noted by Eldridge does not discredit Officer Davis’s testimony.
Next, Eldridge contends that the breath alcohol test
should have been suppressed because Officer Davis was required to
commence a new observation period when the appellant removed his
dentures just prior to the beginning of the test.
At the
suppression hearing, Eldridge testified, without contradiction,
that he removed his dentures just prior to the commencement of
the breath alcohol test.
However, Eldridge fails to cite any
authority which would require the commencement of a new
observation period when a subject removes his dentures during the
initial observation period.
We disagree that a new observation
must be commenced if a subject removes his dentures during the
mandatory observation period.
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It has been stated that the purpose of the observation
period is so the operator “can testify positively that during
this 20 minute observation period defendant had nothing to eat or
drink, did not regurgitate or smoke.”
Tipton v. Commonwealth,
Ky. App., 770 S.W.2d 239, 240 (1989) (citing Chemical Test Manual
for Kentucky § 8.8B(3)).
500 KAR 8:030 § 1(1) provides that “A
certified operator shall have continuous control of the person by
present sense perception for at least twenty (20) minutes prior
to the breath alcohol analysis.
During the period the subject
shall not have oral or nasal intake of substances which will
affect the test.”
The most lenient construction of this
regulation does not permit an interpretation that a subject’s
removal of his dentures during the observation period violates
the observation guidelines or requires the commencement of a new
observation period.
To the contrary, the removal of dentures
does not equate to the “oral or nasal intake of substances which
will affect the test.”
Further, Eldridge has failed to produce any evidence
that the removal of his dentures shortly before the administering
of the test caused, or could cause, an inaccurate breath alcohol
reading.
Eldridge did not call an expert witness to support his
claim, and we have absolutely no basis to accept his premise that
the removal of his dentures during the observation period
prejudiced the testing process.
Eldridge attempts to support his position by citing us
to Officer Davis’s testimony regarding his training concerning
the re-administering of an observation period:
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[Defense Counsel]: You talked about observing
to see that nothing was regurgitated or came
back into somebody’s mouth, or taken in from
elsewhere, coming in their mouth. Are you
also told anything about whether someone has
dentures whether that might affect the test?
Davis: We [are] taught that if they have
anything in their mouth at all that they need
to take it out, yes sir.
[Defense Counsel]: And if there is something
in their mouth or of [sic] they, for example,
were to belch or regurgitate while you are
observing them, at that point then you then
start the observation time again?
Davis: Yes sir, you re-administer another 20
minute observation period.
We do not construe Officer Davis’s testimony as an
admission or assertion that an observation period needs to be readministered upon the removal of dentures.
Defense counsel’s
questioning specifically referred to whether re-administering was
required if the subject belches or regurgitates.
These
occurrences, however, are distinguishable from the removal of
dentures.
The clear purpose of the twenty-minute observation
period is to ensure that any residual alcohol present in the
mouth has dissipated so that the Breathalyzer® machine measures
only the alcohol content of breath exhaled from the lungs.
Belching and regurgitating may contaminate the mouth with alcohol
volumes from the stomach, and this is a rational basis for readministering the observation period.
On the other hand, there
is not a risk of contaminating the mouth with alcohol volumes if
the dentures are removed at some point during the twenty-minute
observation period.
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While Kentucky has not considered the effect of
dentures in the administering of a breath alcohol test, several
foreign jurisdictions have concluded that the failure of a
subject to remove his dentures prior to testing does not, per se,
invalidate the results of a Breathalyzer® test.
See Bruno v.
Iowa Department of Transportation, 603 N.W.2d 596 (Iowa 1999);
Illinois v. Witt, 630 N.E.2d 156 (Ill. 1994); Smith v. State, 349
S.E.2d 754 (Ga. 1986); Tennessee v. Cook, 9 S.W.3d 98 (Tenn.
1999); and Farr v. Director of Revenue State of Missouri, 914
S.W.2d 38 (Mo. 1996).
We agree with these authorities, and,
moreover, because the removal of dentures prior to testing
produces even less of a basis to question the results of the
test, these authorities are squarely adverse to the arguments
advocated by Eldridge.
In summary, the removal of dentures at any time during
the twenty-minute observation period does not require the
commencement of a new observation period.
For the foregoing reasons the judgment of the Boyle
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard Clay
Danville, Kentucky
Albert B. Chandler III
Attorney General
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
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