ROWE (EMILY A) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: OCTOBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
EMILY A. ROWE
ON DISCRETIONARY REVIEW FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 07-XX-00001
COMMONWEALTH OF KENTUCKY
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BEFORE: THOMPSON AND VANMETER, JUDGES; HENRY,1 SENIOR
THOMPSON, JUDGE: The sole issue to be addressed in this appeal is whether
KRE 803(8) requires the in-court testimony of the breathalyzer technician to
establish that the breath alcohol testing instruments were working properly when
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
the test was administered. In accordance with established precedent, we conclude
that the technician’s testimony is not required; and, therefore, affirm.
Emily Rowe was tried and convicted of driving under the influence.
During the course of her Campbell District Court trial, Rowe objected to the
admission of a Commonwealth exhibit that was offered as evidence of the
calibration of the breathalyzer machine before and after Rowe was tested. The
exhibit was a certification by Ronald W. Beck, a civilian employee of the
Kentucky State Police Northern Regional Forensic Laboratory, that the machine
was functioning properly before and after Rowe’s test. Rowe appealed her
conviction to the Campbell Circuit Court which affirmed. We accepted
Two cases are pivotal to our discussion: Commonwealth v. Wirth, 936
S.W.2d 78 (Ky. 1996), and Commonwealth v. Roberts, 122 S.W.3d 524 (Ky.
2003), both of which addressed the exceptions to the general rule that hearsay is
not admissible as evidence. In Roberts, the Court acknowledged that there were
existing conflicting interpretations by some lower courts of its opinion in Wirth
and sought to clarify its holding. Id. at 526. Regarding the standards for the
admission of breath alcohol test results, the Court unambiguously set forth the
(1) That the machine was properly checked and in proper
working order at the time of conducting the test.
2) That the chemicals employed were of the correct kind
and compounded in the proper proportions.
3) That the subject had nothing in his mouth at the time
of the test and that he had taken no food or drink within
fifteen minutes prior to taking the test.
4) That the test be given by an operator who is properly
trained and certified to operate the machine.
5) That the test was administered according to standard
Id. at 526. It then reiterated its position in Wirth when it stated: “Provided the
documentary evidence may be properly admitted, it is unnecessary to introduce the
testimony of the technician who serviced and calibrated the machine.” Id. at 527.
So that its opinion could not be misunderstood, the Court unequivocally repeated
It is the holding of this Court that the Commonwealth can
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. If
the documentary evidence is properly admitted, it is
unnecessary to produce the testimony of the technician
who serviced and calibrated the machine.
Id. at 530.
Despite the clarity provided by the Court in Roberts, Rowe relies on a
third Kentucky Supreme Court case that also addressed the admission of a certified
copy of a breath alcohol machine’s maintenance and test records without the incourt testimony of the technician. In Commonwealth v. Walther, 189 S.W.3d 570
(Ky. 2006), the Court acknowledged that Wirth and Roberts hold that the in-court
testimony of the technician is not required. However, it was compelled to reexamine its decisions in light of the United States Supreme Court’s opinion in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),
and the constitutional restrictions on the use of testimonial hearsay statements
against a criminal defendant.
The Court concluded that the technician’s role was ministerial and the
technician had no identifiable interest in whether the certifications produced
evidence favorable or adverse to the defendant. Walther, 189 S.W.3d at 575.
Thus, the court reasoned, the certified copy of the breath alcohol machine’s
maintenance and test records was not testimonial and its admission not governed
by the holding in Crawford. Id.
Despite the holdings of our Supreme Court, Rowe relies on a footnote
in Walther wherein the Court noted that no objection was made in the trial court
that the “records were inadmissible under KRE 803(8) because they contained
factual findings offered by the government in a criminal case, KRE 803(8)(c), or
under KRE 803(6) . . . .” Id. at 573 footnote 3. Rowe makes the mistaken
assumption that in that footnote, the Court overruled its holdings in Wirth and
Roberts and invited renewed challenges to the admission of the results of a breath
alcohol test without the testimony of the technician. She advances the speculation
that if the defendant had objected on the basis KRE 803(8)(b), the Court would
have held the records inadmissible.
KRE 803(8), the public records exception to the hearsay rule,
excludes from its scope, “[i]nvestigative reports prepared by or for a government,
public office, or agency when offered by it in a case in which it is a party[.]” KRE
803(8)(b). We can find nothing in the Court’s opinion nor is it logical to assume
that the Court was overruling the established precedent in this Commonwealth that
the breath alcohol test technician who serviced and calibrated the machine is not
required to testify in-court because under KRE 803(6), the business records
exception, or KRE 803(8), the documents are admissible. Roberts, 122 S.W.3d at
528-529. Moreover, the Supreme Court has rejected any suggestion that the
technician’s records implicate the lack of trustworthiness in those excluded by
KRE 803(8). Walther, 189 S.W.3d at 575.
Based on the foregoing, the opinion and order of the Campbell Circuit
Court is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harry P. Hellings, Jr.
R. Kim Vocke
Asst. Campbell County Attorney