WHITNEY BRIDGERS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JANUARY 19, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001690-DG
WHITNEY BRIDGERS
APPELLANT
ON DISCRETIONARY REVIEW
FROM SPENCER CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 01-XX-00001
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON1 AND WINE, JUDGES; MILLER,2 SPECIAL JUDGE.
JOHNSON, JUDGE:
Whitney Bridgers was found guilty of driving
under the influence (DUI), first offense3, and possession of drug
paraphernalia, first offense4, following a trial by jury in the
Spencer District Court on October 30, 2001.
After these
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
3
4
Kentucky Revised Statutes (KRS) 189A.010.
KRS 218A.500(2). Bridgers does not challenge his conviction for this
offense on appeal. Rather, he only alleges error in regard to his conviction
for DUI.
convictions were affirmed by the Spencer Circuit Court on May
18, 2005, this Court granted discretionary review.
Having
concluded that the district court did not commit reversible
error, we affirm.
The facts of this matter are not in dispute.
On
October 25, 2000, Trooper Phil Crumpton with the Kentucky State
Police observed a vehicle being driven by Bridgers on Kentucky
Highway 55 approximately four miles north of Taylorsville,
Spencer County, Kentucky.
Trooper Crumpton testified that he
observed the vehicle cross the centerline of the highway two
times and cross the fog line two times.
After making those
observations, Trooper Crumpton activated his emergency equipment
and stopped the vehicle.
After stopping the vehicle, Trooper Crumpton
administered four field sobriety tests: the one-leg stand, the
walk-and-turn, the horizontal gaze nystagmus (HGN) and the
preliminary breath test.5
As a result of Bridgers's performance
on the field sobriety tests, he was charged with DUI, first
offense, and placed under arrest by Trooper Crumpton.
After
placing Bridgers under arrest, Trooper Crumpton discovered a
substance on Bridgers’s person that appeared to be marijuana and
an item that appeared to be a marijuana pipe.
5
As a result of
The results of the preliminary breath test were suppressed by the trial
court pursuant to Bridgers’s pre-trial motion and are not in issue in this
appeal.
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that discovery, Bridgers was additionally charged with
possession of marijuana6 and possession of drug paraphernalia.
Following the arrest, Trooper Crumpton took Bridgers to the
Taylorsville Police Department and administered a breath test on
the Intoxilyzer 5000EN.
The result showed Bridgers to have a
blood alcohol content of 0.129.
This matter was tried before a jury by the Taylor
District Court on October 30, 2001.
Bridgers was convicted of
DUI, first offense, as well as possession of drug paraphernalia,
first offense.
Bridgers subsequently appealed his convictions
to the Spencer Circuit Court which affirmed the trial court’s
judgment by an opinion and order entered on May 18, 2005.
Bridgers filed a motion to alter, amend, or vacate the decision
of the circuit court which was denied by an opinion and order
entered on July 8, 2005.
This Court granted Bridgers’s motion
for discretionary review on October 17, 2005.
In his first issue on appeal, Bridgers asserts that
the trial court erred by failing to suppress all evidence
concerning the field sobriety tests on the basis that such
evidence was technical in nature and therefore subject to the
trial court’s gate-keeping function established by the United
States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
6
KRS 218A.1422. The possession of marijuana charge was dismissed by the
trial court prior to the trial of this matter.
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Inc.7
In Daubert and Kumho, the United States Supreme Court held
that scientific or technical evidence should not be admitted
unless it is shown to be scientifically reliable and that the
trial court acts as a “gate-keeper” in making the determination
as to whether the evidence is reliable.
Bridgers argues that
such a determination must be made by the trial court before
evidence of field sobriety tests can be admitted in a DUI
prosecution.8
Bridgers relies upon the case of United States v.
Horn,9 which held that evidence of field sobriety test were not
admissible to prove a specific blood alcohol content and that a
police officer who administered the tests could only testify
regarding his observations of how a person performed on the
tests.
The officer could not, however, testify that the tests
were objective indicators of a person’s intoxication.
The
officer was permitted to give lay opinion testimony based on his
experience that a person he observed was driving under the
influence.
Bridgers contends that unless the testing is
properly qualified pursuant to Daubert and its progeny it is
7
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); see also Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and
Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995); Kentucky Rules of
Evidence (KRE) 702.
8
In his brief, Bridgers states that the HGN test is not at issue in this
case. As such, we are only concerned with the admissibility of the walk and
turn test and the one legged stand test.
9
185 F.Supp.2d 530 (D.MD. 2002).
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improper for the officer administering the tests to testify that
the subject “passed or failed” the “tests.”
On appeal, the
trial court’s decision regarding the admission of evidence will
not be disturbed absent a showing that the trial court abused
its discretion.10
If the decision is arbitrary, unreasonable,
unfair or unsupported by sound legal principles it is an abuse
of discretion.11
In the case at bar, the trial court held that the
Commonwealth did not have to produce evidence that field
sobriety testing was scientifically reliable.
However, the
Commonwealth was required to make a showing that the tests were
properly carried out by Trooper Crumpton.
As such, the trial
court viewed the videotape of Bridgers performing the tests that
was made from the camera mounted on the inside of Trooper
Crumpton’s police cruiser.
Bridgers objected that the walk and
turn test was improperly carried out because the ground where
Bridgers was required to perform the test was not level.
The
trial court held that Bridgers could address that objection
through cross examination of Trooper Crumpton as well as in
argument to the jury and held the test to be admissible.
As for
the walk and turn test, Bridgers made no objection to how it was
10
Mitchell, 908 S.W.2d at 102.
11
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
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performed presumably because Trooper Crumpton testified that
Bridgers passed the test.
We agree with the trial court that the Commonwealth
was not required to make a showing that the field sobriety
testing was scientifically reliable.
This Court has previously
held that evidence of field sobriety testing is admissible12 and
that officers observing a defendant’s driving and physical
condition may offer both lay and expert opinion testimony that a
defendant was intoxicated.13
As such, we find no abuse of
discretion in the trial court’s admission of the evidence and
testimony.
Next, Bridgers’ asserts that the trial court erred in
allowing the introduction of his breath test results on the
basis that the Commonwealth failed to prove the Intoxilyzer
5000EN was properly working.
At trial, Trooper Crumpton
testified that the Intoxilyzer 5000EN machine was working
properly when he administered the breath test to Bridgers.
Trooper Crumpton further testified regarding the print out from
the machine and went over each line for the jury.
The
Commonwealth did not, however, offer any evidence concerning the
machine’s maintenance records.
12
Kidd v. Commonwealth, 146 S.W.3d 400, 402 (Ky.App. 2004).
13
Commonwealth v. Rhodes, 949 S.W.2d 621, 623 (Ky.App. 1996).
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At the time of the trial of this matter, the
foundation requirements for the introduction of breath test
results were set forth by our Supreme Court in Wirth v.
Commonwealth14.
The Wirth decision examined prior holdings of
the Court in Marcum v. Commonwealth15 and Owens v. Commonwealth16
both of which had held breath tests results to be admissible
solely on the basis of testimony of the operator of the machine.
While noting that “[t]he standard set forth in Marcum and Owens
remains the principal foundation requirement,” Wirth stated that
the additional requirements found in KRS 189A.103(3)(a), KRS
189A.103(4) and 500 KAR17 8:020(2) could be “satisfied by means
of business or public records showing compliance with the
additional requirements.”18
After the trial of the case sub judice, our Supreme
Court revisited its holding in Wirth as a result of confusion
that appeared to have resulted in the courts in applying that
decision dealing with the foundation requirements for the breath
test.19
While noting that Wirth did not overrule Marcum and
Owens, our Supreme Court clarified its holding that the
14
936 S.W.2d 78 (Ky. 1996).
15
483 S.W.2d 122 (Ky. 1972).
16
487 S.W.2d 897 (Ky. 1972).
17
Kentucky Administrative Regulations.
18
936 S.W.2d at 82.
19
Commonwealth v. Roberts, 122 S.W.3d 524, 526 (Ky. 2003).
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Commonwealth could “satisfy the foundation requirements for
introducing a breath test by relying solely on the testimony of
the operator so long as the documentary evidence, i.e. the
service records of the machine and the test ticket produced at
the time of the test, are properly admitted.”20
The Court
overruled Marcum and Owens to the extent those decisions
differed with the new foundation requirements.
At the trial of this matter, the Commonwealth relied
upon the testimony of the operator of the machine, Trooper
Crumpton and properly admitted the test ticket produced after
Bridgers was given the test.
However, the service records of
the machine were not introduced.
Although it was error for the
trial court to admit the results of the breath test in this
matter under the Roberts holding, we believe such error to have
been harmless in light of the other testimony indicating
Bridgers was intoxicated.
Further, we do not believe the trial
court abused its discretion in admitting the test results solely
on the basis of Trooper Crumpton’s testimony due to the
confusion which existed at the time regarding the proper
foundation necessary to introduce a breath test.
Bridgers also argues that the trial court erred by
failing to direct a verdict in his favor on the basis that the
Commonwealth did not introduce any evidence to show that the
20
Id. at 528.
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breath test was “scientifically reliable” and failed to
introduce evidence showing what the breath test actually
measures.
We disagree with Bridgers' assertion that proving the
breath test to be scientifically reliable is an essential
element that must be proven by the Commonwealth in order to
obtain a DUI conviction.
“In fact, breath testing for intoxication
has been in existence for a long time and
has been used in a variety of prosecutions.
While breath testing may not be flawless, it
has been to have sufficient reliability to
be admissible in evidence and to sustain a
conviction.”21
Bridgers does not cite any authority in support of his argument
that the Commonwealth must introduce evidence and prove what the
breath test actually measures, and we decline his invitation to
require that the Commonwealth elicit testimony that the breath
test measures grams of alcohol per 210 liters of breath.
Such
testimony has no bearing on whether the test was properly
administered or whether the machine was properly working at the
time the test was administered and would only serve to confuse
the jury regarding the science of the test.
Finally, Bridgers asserts that he was entitled to a
directed verdict on the basis that the Commonwealth failed to
introduce any evidence to prove that the breath test was
21
Wirth, 936 S.W.2d at 83 (citing Morgan v. Shirley, 958 F.2d 662 (6th Cir.
1992).
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administered within two hours of when Bridgers last operated a
motor vehicle.
We disagree.
The Commonwealth introduced into
evidence the video tape of Trooper Crumpton stopping Bridgers’
vehicle and then placing him under arrest.
time and date of the stop and arrest.
The video showed the
The Commonwealth then
introduced the test ticket produced from Bridgers’ breath test
which was also marked with the time and date of the test.
In
considering a directed verdict motion, the court must consider
all the evidence in light most favorable to the Commonwealth and
draw all fair and reasonable inferences from the evidence in
favor of the Commonwealth.22
“On appellate review, the test of a
directed verdict is, if under the evidence as a whole, it would
be clearly unreasonable for a jury to find guilt, only then the
defendant is entitled to a directed verdict.”23
Considering the
evidence as a whole, particularly the video tap and test ticket,
we do not believe it to be unreasonable for a jury to find that
the breath test was administered within two hours of when
Bridgers last operated a motor vehicle.
Based upon the forgoing, the decision of the Spencer
Circuit Court affirming the judgment of the Spencer District
Court is affirmed.
22
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991).
23
Id. (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
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ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
John David Seay
Bardstown, Kentucky
Gregory D. Stumbo
Attorney General
Frankfort, Kentucky
Leigh Erbe, Sr.
Special Asst. Attorney General
Taylorsville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Leigh Erbe, Sr.
Special Asst. Attorney General
Taylorsville, Kentucky
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