COMMONWEALTH OF KENTUCKY V. CHAD DAVIS
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RENDERED: AUGUST 24,200O
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY
CERTIFICATION OF THE LAW FROM
CAMPBELL DISTRICT COURT
99-T- 1487
V.
CHAD DAVIS
APPELLEE
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
CERTIFYING THE LAW
Pursuant to CR 76.37(10), the Commonwealth seeks certification of the law on
the following questions:
1) Is an lntoxilyzer result admissible in a prosecution
under KRS 189A.010( 1 )(a) and/or (e), where the subject
testing component has been shown to be in proper working
order, but the calibration component showed out of
tolerance readings on other dates?
2) Does the decision in Owens v. Commonwealth, Ky.,
487 S.W.2d 897 (1972) require the prosecution to
demonstrate that all possible components of the machine
are in proper working order on dates other than the date of
the arrest as a condition precedent to the admission of the
lntoxilyzer results into evidence?
The critical issue in reaching a decision in this matter is the import to be given to
500 KAR 8:020 Section 2.(l), which provides as follows:
A breath alcohol instrument shall be accurate within plus
or minus 0.005 alcohol concentration units reading to be
certified. To determine accuracy of instruments, a
technician trained or employed by the Forensic
Laboratory Section of the Department of State Police
shall perform analyses using a certified reference
sample at regular intervals.
500 KAR 6030, Section l.(2) requires the following:
A breath alcohol concentration test shall consist of the
following steps in this sequence:
(a)
(b)
(c)
(d)
(e)
Ambient air analysis;
Alcohol simulator analysis;
Ambient air analysis;
Subject breath sample analysis; and
Ambient air analysis.
Chad Davis, who was under 21 years of age at the time, was charged with a
violation of KRS 189A.010,
Driving Under the Influence, and had an lntoxilyzer reading
of .073 and was therefore charged under KRS 189A.OlO(l)(e).
Davis moved to suppress the lntoxilyzer results on the grounds that the machine
had registered out of tolerance readings on the calibration component 18 times between
November 1998 and May 1999, and therefore the requirements of Owens, supra, had
not been satisfied.
In district court, the Commonwealth and the defendant agreed to incorporate into
this case all evidence and pleadings from Commonwealth v. Frevler, Campbell District
Court, First Division, Case No. 99-M-00166 (1999). Factual differences relate to the
identity of the defendant, the date of the lntoxilyzer test and additional evidence
presented. Our defendant was a minor, Freyler was an adult. At the Freyler
suppression hearing, a technician employed by the Kentucky State Police testified that
he had examined the testing component that determines the alcohol content for the
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calibration and subject tests both before and after the Davis test, and.had determined
that the testing component was in proper working order. The technician stated that the
calibration component which supplies the sample for the calibration test was not in
proper working order. In this case, the district court suppressed the lntoxilyzer results
citing Owens for the principle that the Commonwealth is required to prove that the
machine, including all of its components, was in proper working order at the time of the
test. In the Freyler matter, the same judge denied suppression.
The Commonwealth argues that Owens needs to be reexamined in the light of
new legislative requirements and that the district court erred in ruling that the lntoxilyzer
result was inadmissible instead of holding that the result should be admitted with any
perceived problems going to the weight of the evidence. This Court granted the request
for certification.
Counsel for Davis argues that the test results should not be admitted where the
appropriate statutory and regulatory foundation requirements have not been satisfied
and the lntoxilyzer machine in total has been stipulated by the prosecution not to be in
proper working order. Davis contends that what is required is compliance with the
statute and regulations as provided by Commonwealth v. Wirth, Ky., 936 S.W.2d 78
(1996). Davis claims that under Marcum v. Commonwealth, Ky., 483 S.W.2d 122
(1972) Owens and Wirth. supra, the simulator is needed to show that the machine is in
proper working order, and, consequently, the prosecution cannot satisfy the
requirements for admissibility. Thus, he maintains that the suppression order of the
district court should be affirmed and the law should be so certified.
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1. Admission of lntoxilyzer Results
The lntoxilyzer test results should have been admitted into evidence when the
calibration unit and the subject testing component have been shown to be in proper
working order on the testing date, despite the fact that the calibration component may
have been out of tolerance on other dates, because the results are relevant evidence
pursuant to KRE 401
and KRE 402, as well as scientific evidence under KRE 702. In
this instance, the calibration unit and the subject testing component were in proper
working order on the date of the test.
lntoxilyzer test results have been admitted into evidence in innumerable cases.
See Wirth.
--1 Owens; See also KRS 189.005 et seq. KRE 402 provides that all relevant
evidence is admissible and KRE 401 defines relevant evidence as that which has any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence. In a
DUI prosecution, the lntoxilyzer test results are relevant. KRE 702 authorizes the use of
such tests to assist the trier of fact.
As an example, In Daubert v. Merrell-Dow Pharmaceuticals. Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court determined
that cross-examination, the presentation of contrary evidence and instructions on the
burden of proof are the appropriate means of challenging new and/or not widely
accepted evidence that is otherwise admissible. Consequently, any lntoxilyzer test
result should be admitted into evidence when the calibration unit and the subject testing
component have been shown to be in proper working order on the testing date, and any
challenges thereto should be handled by cross-examination and the presentation of
contradictory evidence.
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II. Weight of Evidence
The lntoxilyzer test results should be admitted into evidence, and any problems
with the simulator component of the device should go to the weight of such evidence,
rather than its admissibility, when the calibration unit and testing unit are in proper
working order on the testing date. Previous shortcomings should go to the weight of the
evidence only.
This Court, in Marcum, supra, when considering the admissibility of alcohol
breath tests, held that, among other requirements, alcohol concentration tests are
admissible if the prosecution shows that the machinery was “properly checked and in
proper working order at the time of conducting the test.”
The precise problem presented here is that the simulator component of the
Intoxilyzer, as distinguished from the alcohol testing unit, was not in proper working
order on dates other than the date of the test in question. The evidence indicates that
the calibration unit is totally independent of the testing unit, and that the testing unit will
provide an accurate reading even if the calibration unit is turned off.
Kina v. Commonwealth, Ky.App., 875 S.W.2d 902 (1993) states in part that any
machine, including an Intoxilyzer, is going to have a margin of error . . . The question
then becomes how much of a margin of error will be tolerated before the reading is no
longer credible or has probative value. The Court held that in its opinion, the margin of
error should be considered to determine the probative value of the lntoxilyzer reading.
The Court of Appeals panel in Kina. supra, observed that to exclude a reading with a
possible error of .005 would be requiring the Commonwealth to prove in the realm of
beyond any doubt. Such a standard is more than that required by Owens for
admissibility.
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III. Other Jurisdictions
A number of other states have considered similar problems. See Gaston v.
State, 490 S.E.Zd 198, 201 (Ga.Ct.App. 1997) to the effect that no procedure is infallible
and an accused may always introduce evidence of the possibility of error or malfunction
but that such evidence would relate to the weight rather than the admissibility of the
breath test. Hammontree v. State, 512 S.E.2d 57 (Ga.Ct.App. 1999) stated that the
fact that testing has some margin of error relates to the weight rather than admissibility
of test results. Cawthon v. State, 510 S.E.2d 586 (Ga.Ct.App. 1998) noted that a
Breathalyzer’s margin of error relates to the weight rather than to the admissibility of the
results.
State v. Guthmiller, 350 N.W.2d 600 (N.D. 1984), held that problems with a
Breathalyzer could be overcome by expert testimony if each of the individual mistakes
had an insignificant effect on the result. Here, the lab technician responsible for
maintaining the lntoxilyzer testified that any perceived problems with the machine were
insignificant because the calibration unit is totally separate from the testing unit and that
the testing unit operates independently.
Kercho v. State, 948 S.W.2d 34 (Tex.App.- Houston 14th District 1997) recites
the requirements of proper working order on the day of the test, periodic supervision
and testimony by a qualified witness. In State v. Mazzuca, 979 P.2d 1226 (Idaho
Ct.App. 1999) the Court of Appeals reviewed other jurisdictions and determined that
the test results were admissible even with deficient breath samples where the test was
properly administered and the machine properly calibrated.
Other cases of interest on this matter may be found in Gidey v. State, 491 S.E.2d
406 (Ga.Ct.App.1997); State v. Woods, 947 P.2d 62 (Mont. 1997) and Volk v. U.S. 57
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F.Supp.2d 888 (Northern District of Cal. 1999). In Volk. supra, the court noted that the
admissibility and general reliability of lntoxilyzer test results are well established, and
the methodology has achieved wide acceptance within the scientific community.
This Court certifies the law to the effect that an lntoxilyzer test result is
admissible in a prosecution pursuant to KRS 189A.01 O(l)(a) and or (e) where the
calibration unit and the subject testing component have been shown to be in proper
working order on the testing date, despite the fact that the calibration component may
have been out of tolerance on other dates. The decision of this Court in Owens v.
Commonwealth is clarified to the extent that the lntoxilyzer results may be admitted
when the alcohol test component and calibration unit were in proper working order on
the day of the test but the independent calibration unit was out of tolerance on other
days. When the lntoxilyzer calibration unit and testing unit are in proper working order
on the testing day, any earlier problems should go to the weight of the evidence and not
its admissibility. In the Davis case, the calibration check attached to the citation shows
.098 which is within the required accuracy range between .095 and .I05
We find the decision of the trial judge in suppressing the lntoxilyzer reading was
in error and the results of the test should be admitted into evidence consistent with this
certification.
Graves, Johnstone, Keller and Wintersheimer, JJ., concur. Cooper, J., dissents
by a separate opinion in which Lambert, C.J., and Stumbo, J., join.
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COUNSEL FOR APPELLANT:
Teressa L. Elliott
Assistant Campbell County Attorney
2521 Anderson Road
Crescent Springs, KY 41017
Laurie B. Dowell
Assistant Campbell County Attorney
331 York Street
Newport, KY 41071
COUNSEL FOR APPELLEE:
Jon Alig
Thomas G. Alig
Vincent and Alig
115 Park Place
Covington, KY 41011
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RENDERED: AUGUST 24,200O
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY
APPELLANT
CERTIFICATION OF THE LAW FROM
CAMPBELL DISTRICT COURT
99-T-l 487
V.
APPELLEE
CHAD DAVIS
DISSENTING OPINION BY JUSTICE COOPER
The majority opinion holds that “an lntoxilyzer test result is admissible in a
prosecution pursuant to KRS 189A.OlO(l)(a) and/or (e) where the calibration unit and
the subject testing component have been shown to be in proper working order on the
testing date, despite the fact that the calibration component may have been out of
tolerance on other dates.” Slip op. at 7. I am in agreement with this proposition and it
comports with our holding in Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972):
It is generally held that the prosecution has the burden of proving tests
such as the breathalyzer were correctly administered. As a minimum this
proof must show that the operator was properly trained and certified to
operate the machine and that the machine was in orooer workina order
and that the test was administered according to standard operating
procedures.
Id. at 900 (emphasis added).
However, the Commonwealth has stipulated in this case that its only expert
witness with respect to this issue tested the machine and reported “that the calibration
component which supplied the sample for the calibration tests referenced above,
includina the calibration test for this defendant, was not in proper working order.”
(Emphasis added.) Thus, the district judge properly suppressed the results of this
particular lntoxilyzer test.
Lambert, C.J., and Stumbo, J., join this dissenting opinion.
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