HADAWAY (IRA PAUL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 22, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001625-DG
IRA PAUL HADAWAY
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM TRIGG CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 09-XX-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, LAMBERT AND VANMETER, JUDGES.
VANMETER, JUDGE: Ira Hadaway appeals from the Trigg Circuit Court opinion
affirming the Trigg District Court judgment after a jury found him guilty of
possession of an open alcohol beverage container in a motor vehicle and driving
under the influence of alcohol (“DUI”). For the following reasons, we affirm.
In February 2008, Officers Neil Gardner and Curtis Davis pulled
Hadaway over for driving erratically. Considering Hadaway’s appearance and
smell, his belligerent behavior, his failure of field sobriety tests, and his
passenger’s statement that they had both consumed several beers, the officers
arrested Hadaway for DUI and other offenses. At the police station, prior to
administering a breath alcohol test, Officer Chad Grace observed Hadaway for
twenty-six minutes to ensure that he did not belch, regurgitate, or ingest anything
that would produce false results.
Before trial, Hadaway moved to suppress the results of his breath
alcohol test on the basis that Officer Grace was “in and out” of the room during the
observation period and did not have continuous control of Hadaway “by present
sense perception” as required by 500 KAR1 8:030. Hadaway further alleged that
during the observation period, Officer Donald Dill allowed him to use his inhaler
for his asthma and that the alcohol in the inhaler contaminated his breath sample.
Officer Dill refuted this allegation, and while Officer Grace was not asked about
the inhaler, he did testify that he did not leave the room during the observation
period.
The district court denied Hadaway’s motion to suppress and allowed
the breath alcohol test results to be introduced at trial. During trial, Hadaway again
objected to the admission of the breath alcohol test results. A jury found him
guilty of DUI and possession of an open alcohol container in a motor vehicle.
Hadaway appealed the DUI conviction to the Trigg Circuit Court, which affirmed.
This court granted Hadaway’s motion for discretionary review.
1
Kentucky Administrative Regulations.
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On appeal, Hadaway argues that the results of the breath alcohol test
should have been suppressed because (1) he was not observed pursuant to 500
KAR 8:030 and (2) the maintenance log was not introduced to prove that the test
machine was functioning properly and producing accurate results. Therefore,
Hadaway maintains that his conviction for DUI should be reversed. We disagree.
This court reviews suppression issues by first determining whether the
district court’s factual findings have substantial evidentiary support; if so, those
findings are conclusive. RCr2 9.78; Commonwealth v. Neal, 84 S.W.3d 920, 923
(Ky.App. 2002). Second, this court reviews de novo the district court’s application
of the law to those facts. Neal, 84 S.W.3d at 923.
Grounds for an objection on appeal that differ from those asserted at
trial are not preserved for our review. Daugherty v. Commonwealth, 572 S.W.2d
861, 863 (Ky. 1978). This court reviews unpreserved claims only for palpable
error; the claim prevails only when such error results in manifest injustice. Martin
v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006); RCr 10.26. Manifest injustice is
shown by a probability that but for the error, the outcome would have been
different. Martin, 207 S.W.3d at 3.
Hadaway argues that Officer Grace did not observe him in accordance
with the requirements of 500 KAR 8:030(1), which provides:
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
2
Kentucky Rules of Criminal Procedure.
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that period the subject shall not have oral or nasal intake
of substances which will affect the test.
At the suppression hearing in this case, although Officer Grace never
testified about whether Hadaway used an inhaler, he did testify that he observed
Hadaway for twenty-six minutes prior to administering the breath alcohol test. In
addition, Officer Dill testified that Hadaway “absolutely” did not use an inhaler in
his presence. We note that “[a]t a suppression hearing, the ability to assess the
credibility of witnesses and to draw reasonable inferences from the testimony is
vested in the discretion of the trial court.” Sowell v. Commonwealth, 168 S.W.3d
429, 431 (Ky.App. 2005) (citation omitted).
Here, the district court held that the observation period is “not an
eyeball to eyeball requirement.” Few Kentucky cases have defined the “present
sense perception” requirement contained in 500 KAR 8:030(1); however, in Tipton
v. Commonwealth, 770 S.W.2d 239, 242 (Ky.App. 1989) (abrogated on other
grounds by Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004)), this court expressed in
dicta that “the operator need not stare at the arrestee for 20 minutes.” Other
jurisdictions have interpreted similar regulations to allow the officer to look away
momentarily. See Simpson v. State, 707 P.2d 43, 46 (Okla.Crim.App. 1985); State
v. Smith, 547 A.2d 69, 73 (Conn.App. 1988); State v. Remsburg, 882 P.2d 993, 995
(Idaho App. 1994); Glasmann v. State, 719 P.2d 1096, 1097 (Colo.App. 1986). In
the case at bar, because Officer Grace testified that he remained in the room to
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observe Hadaway for twenty-six minutes, we find nothing in the record to support
a finding that the requirements of 500 KAR 8:030 were not met.
Furthermore, in order to introduce breath alcohol test results, “proof
[the] machine is in proper working order must be shown by either the testimony of
the technician who serviced it or by properly introducing the machine's
maintenance records.” Commonwealth v. Roberts, 122 S.W.3d 524, 528 (Ky.
2003) (citing Commonwealth v. Wirth, 936 S.W.2d 78 (Ky. 1996)). In the present
case, neither was provided, so the district court erred by admitting the test results.
That being said, Hadaway failed to preserve this claim of error at trial;
thus, the claim prevails on appeal only if the error resulted in manifest injustice. In
Allen v. Commonwealth, 817 S.W.2d 458 (Ky.App. 1991), this court held that
officers’ testimony alone can support a conviction without the results of a breath
test machine. Here, the officers testified that they followed procedure and believed
Hadaway was driving under the influence of alcohol based on their observations of
his erratic driving, his failure of field sobriety tests, and his passenger’s remarks
that they had both consumed alcohol. Because the evidence supports a DUI
conviction even without the breath alcohol test results, the error did not result in
manifest injustice.
In summary, the testimony of the officers constitutes substantial
evidence to support the district court’s conclusion that Officer Grace observed
Hadaway in accordance with 500 KAR 8:030 and to support Hadaway’s DUI
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conviction, despite the court’s error in admitting the test results absent introduction
of the maintenance log.
The opinion of the Trigg Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Lewter
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
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