COMMONWEALTH OF KENTUCKY V. LIBERTY ASTIN WALTHER
Annotate this Case
Download PDF
RENDERED : APRIL 20, 2006
TO BE PUBLISHED
2005-SC-0001-CL
PETITIONER
COMMONWEALTH OF KENTUCKY
V
ON CERTIFICATION FROM KENTON DISTRICT COURT
HONORABLE MARTIN J . SHEEHAN, JUDGE
04-T-8470
LIBERTY ASTIN WALTHER
RESPONDENT
OPINION OF THE COURT BY JUSTICE COOPER
CERTIFYING THE LAW
At 2:24 a.m. on June 9, 2004, Respondent Liberty Astin Walther, a Kenton
County, Kentucky, deputy jailer, was operating his motor vehicle within the city limits of
Fort Mitchell, Kentucky, when he was stopped by an officer of the Ft. Mitchell Police
Department. Respondent was arrested and charged with a first offense of operating a
motor vehicle with a blood-alcohol concentration of or above 0 .08, KRS 189A.01 0(1)(a),
or while under the influence of alcohol, KRS 189A .01 0(1)(b), a Class B misdemeanor .
KRS 189A .010(4)(a) (fine of $200 to $500 or imprisonment for 48 hours to 30 days or
both) . He was also charged with careless driving, KRS 189 .290, a violation . KRS
189.990(1) (fine of $20 to $100).
The Uniform Citation charging Respondent with these offenses indicates that he
was stopped after the arresting officer observed him traveling 48 miles per hour in a 35
miles per hour zone, rounding a curve at an unsafe rate of speed, and drifting into the
opposite lane of traffic ; that after making the stop, the officer detected the odor of
alcohol on or about Respondent's person; that the results of a field sobriety test were
"unsatisfactory ;" that Respondent admitted drinking "probably ten beers" between 8 :00
p.m. and 1 :30 a.m . ; and that a breath-alcohol test performed by use of an Intoxilyzer
5000 breathalyzer machine measured Respondent's blood-alcohol level at 0.124 .
During a bench trial held in the Kenton District Court on November 9, 2004, the
Commonwealth offered evidence in the form of certified records of maintenance and
tests performed by a breath-alcohol technician to prove that the machine used to test
Respondent's breath, Intoxilyzer 5000 EN s/n [serial number] 68-012628, was in proper
working order . Respondent objected to the admission of this evidence, and the trial
judge took the issue under submission . On December 9, 2004, the trial judge entered
an opinion and order suppressing the evidence in question on grounds that (1) the
evidence was "testimonial" in nature and, thus, inadmissible under the United States
Supreme Court's holding in Crawford v. Washington, 541 U .S. 36, 124 S.Ct. 1354, 158
L . Ed .2d 177 (2004); and (2) the evidence was "untrustworthy" because computerized
printouts of tests performed on the machine by the breath-alcohol technician prima facie
indicated that the machine was tested for accuracy at 6 :09 p.m. on June 3, 2004, in
Cynthiana, Harrison County, Kentucky, and again at 6:11 p.m. on the same date in
Erlanger, Kenton County, Kentucky-a physical impossibility. The trial judge then
dismissed both charges.' We granted the Commonwealth's motion to certify the
following question of law:
' The audiotapes of the proceedings held on November 9 and December 9, 2004,
were not made a part of the record on appeal, and the order of dismissal does not
explain why the trial judge dismissed the charges of operating a motor vehicle while
-2-
Can a certified copy of a breath-alcohol machine's maintenance and test
records be admitted into evidence to show compliance with 500 KAR
8 :020 § 2(1) without in-court testimony by the breath-alcohol technician
who performed the maintenance and tests?
We answered this question in the affirmative in both Commonwealth v. Wirth ,
936 S .W.2d 78, 82-83 (Ky. 1996), and Roberts v. Commonwealth , 122 S .W .3d 524,
528-29 (Ky. 2003) . The trial judge, however, held in this case that "Crawford does in
fact supersede the prior decisions of the Kentucky Supreme Court in Wirth and its
progeny" on this issue . We disagree .
In Roberts , we set forth with specificity the five foundation requirements
necessary for admission of the results of a breath-alcohol test. 122 S .W.3d at 528 . The
first requirement is proof "[t]hat the machine was properly checked and in proper
working order at the time of conducting the test." Id. In that respect, 500 KAR 8:020 § 2
provides :
(1) A breath alcohol analysis instrument shall be accurate within
plus or minus 0 .005 or plus or minus five (5) percent, whichever is greater,
alcohol concentration units reading to be certified . To determine accuracy
of instruments, .a technician trained or employed by the Department of
State Police shall perform analyses using a certified reference sample at
regular intervals .
(2) All breath alcohol analysis instruments shall be examined by a
technician trained or employed by the Department of State Police prior to
being placed into operation and after repairs of any malfunctions .
The evidence suppressed by the trial judge was offered to establish the first
foundational requirement for admission of the breath-test results . The evidence
consisted of three sets of copies of maintenance and test records pertaining to
under the influence of alcohol, KRS 189A.010(1)(b), and careless driving, neither of
which would require proof of Respondent's blood-alcohol level for conviction .
2 Judge Sheehan, who suppressed the maintenance and test records in this case, is
the same district judge who suppressed similar records in Wirth, holding then that this
type of evidence is not admissible under the business or public records exceptions to
the hearsay rule . KRE 803(6) ; KRE 803(8) . As noted, we held otherwise .
-3-
Intoxilyzer 5000 EN s/n 68-012628. Each set contained a notarized certification by
Greg Blankenship, the breath-alcohol technician who prepared and had custody of
them, that they were true and exact copies of the original records maintained by him
and that he prepared and maintained them in the regular course of his duties as an
employee of the Kentucky State Police Breath Alcohol Maintenance Program. Thus,
they were otherwise admissible without extrinsic evidence of authenticity, i.e. , additional
testimony of Blankenship, under KRE 902(4) and KRE 1003.3 The records include
computer printouts of test results that, as the trial judge noted, are largely
incomprehensible to a layperson. Thus, it is Blankenship's interpretation of those test
results that the trial judge characterized as "testimonial ."
The first set of records (Commonwealth's exhibit 2A) pertained to tests performed
by Blankenship on June 3, 2004, when the machine was returned to operation after
being temporarily removed to the manufacturer's Owensboro, Kentucky, plant for
service and repairs. In addition to the computer printouts, this set included a
"Performance Work Sheet" with a printed column listing thirty-eight separate tests to be
performed, an adjacent column of blank spaces with the heading "Verified," and another
column of blank spaces adjacent to the second with the heading "Notes." Blankenship
handwrote "OK" in the "Verified" column beside each described test. He also made
three handwritten entries in the "Notes" column, writing "2339 RPM" on the line next to
3 Respondent did not object on grounds 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) because Blankenship's certification did not
recite that the information contained in the records was entered "at or near the time" the
information was obtained, KRE 803(6), though the contents of the records, themselves,
as described infra, seem to indicate that they were created on site and
contemporaneously with the conduct of the maintenance and/or testing.
4 Although the records also contain a "Certificate of Calibration" signed by an
employee of the manufacturer, that fact is irrelevant to their admissibility .
- 4-
the test for "Motor speed;" ".083" on the line next to the test for "Calibration Check
0 .080" (indicating that the calibration was within 0.005 as required by 800 KAR 8 :020 §
2(1)); and "Time to time out = 3 min . & 1 sec." on the line next to the test for "No Sample
Given Time NSG ."
The second set of records (Commonwealth's exhibit 2B) pertained to
maintenance and tests performed by Blankenship on July 8, 2004 . In addition to the
computer printouts, this set contains a document entitled "Breath Alcohol Instrument
Service Record," on which Blankenship handwrote that the maintenance and tests were
performed at Erlanger, Kenton County, and that the reasons for the tests were "routine"
with a reported complaint of "cold breath tube ." Blankenship also handwrote on this
document under the heading "subject test," the words "OK .083 on subject test
calibration check" and the following under the heading "Comments" :
Reset all tube connections . All tubes OK upon arrival. Monitored specs
and settings . Changed solution. Cleaned and serviced unit as needed .
Ran tests . All tests OK. Unit OK for use.
The document was signed by Blankenship and dated "7-8-04" in handwriting .
The third set of records (Commonwealth's exhibit 2C) pertained to maintenance
and tests performed by Blankenship on July 15, 2004 . In addition to the computer
printouts, this set also contains a "Breath Alcohol Instrument Service Record," on which
Blankenship handwrote that the tests were conducted at Erlanger, Kenton County, that
the reasons for the tests were "routine," and that the reported complaints were "None."
Blankenship also handwrote on this document under the heading "subject test," the
words "OK .084 on subject test calibration check" and the following under the heading
"Comments" :
Monitored specs and settings. Changed solution . Cleaned and serviced
unit as needed. No problem reported, None found. Ran standard tests.
All tests OK. Unit OK for use.
The document was signed by Blankenship and dated "7-15-04" in handwriting .
In Crawford v. Washington , the United States Supreme Court held that the
Confrontation Clause of the Sixth Amendment to the United States Constitution does
not permit the use of court-created hearsay exceptions or other tests of "reliability," g . _,
c.
the "particularized guarantees of trustworthiness" articulated in Ohio v. Roberts , 448
U .S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed .2d 597 (1980), to admit testimonial hearsay
statements against a defendant at a criminal trial unless the witness is unavailable and
the defendant had a prior opportunity for cross-examination. Crawford , 541 U .S. at 68,
124 S .Ct. at 1374. The Commonwealth does not assert either that Blankenship was
unavailable for trial or that Respondent had a prior opportunity to cross-examine him .
Thus, the only issue is whether the notations Blankenship made in the documents
reflecting his maintenance and the results of his tests on the Intoxilyzer machine were
"testimonial ." To provide guidance in making this determination, the U .S. Supreme
Court explained :
The text of the Confrontation Clause . . . applies to "witnesses"
against the accused - in other words, those who "bear testimony ."
"Testimony," in turn, is typically "[a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact." An accuser
who makes a formal statement to government officers bears testimony in
a sense that a person who makes a casual remark to an acquaintance
does not.
Id. at 51, 124 S .Ct. at 1364 (citations omitted) .
The Court also stated that, at a minimum, the term "testimonial" applies to police
interrogations and to prior testimony, whether at a preliminary hearing, before a grand
jury, or at a formal trial . Id . at 68, 124 S .Ct. at 1374. Because the statement at issue in
Crawford was a statement given to the police during a custodial interrogation,
"testimonial under any definition," id . at 61, 124 S .Ct. at 1370, the Court "[left] for
another day any effort to spell out a comprehensive definition of 'testimonial ."' Id . at 68,
124 S.Ct. at 1374. However, it did endorse the view that statements were testimonial,
if, etc . , they "were made under circumstances which would lead an objective witness
reasonably to believe that the statement[s] would be available for use at a later trial ." Id.
at 52, 124 S.Ct. at 1364. Applying his well-documented "originalist" view of
constitutional interpretation, i .e . , that the Constitution must be interpreted today as the
Framer's originally understood it,6 Justice Scalia, the author of Crawford , noted therein
that several hearsay exceptions were well established by 1791, "most of [which]
covered statements that by their nature were not testimonial-for example, business
records or statements in furtherance of a conspiracy ." Id. at 56, 124 S .Ct. at 1367
(emphasis added) .'
Every jurisdiction but one that has considered this issue since Crawford has
concluded that maintenance and performance test records of breath-analysis
instruments are not testimonial, thus their admissibility is not governed by Crawford.
Bohsancurt v. Eisenberg , 129 P .3d 471, 480 (Ariz. Ct. App . 2006) ; Rackoff v. State , 621
S .E.2d 841 ; 845 (Ga. Ct. App. 2005); Napier v. State , 827 N.E .2d 565, 569 (Ind. Ct .
App. 2005) ; State v. Carter , 114 P .3d 1001, 1007 (Mont . 2005) ; State v. Godshalk, 885
A.2d 969, 973 (N .J . Super. Ct . Law Div. 2005); Green v. DeMarco 11 Misc. 3d 451,
N.Y .S.
(2005 N .Y. Slip Op. 25528, at 13) (N .Y . Sup. Ct. 2005); State v.
5 E.g_, Antonin Scalia, Originalism : The Lesser Evil , 57 U . Cin. L. Rev. 849, 862
(1989) .
_Id. at 851-52 .
Justice Scalia also somewhat reluctantly acknowledged that the exception for dying
declarations was established before 1791, but stated that "[i]f this exception must be
accepted on historical grounds, it is sui generis ." Id . at 56 n .6, 124 S.Ct. at 1367 n .6.
,
Norman , 125 P.3d 15,18-19 (Or. Ct. App. 2005); Luginbyhl v. Commonwealth , 618
S . E.2d 347, 354-55 (Va. Ct . App. 2005) ; contra Shiver v. State , 900 So . 2d 615, 618
(Fla . Dist. Ct. App. 2005).
We have no difficulty aligning our jurisdiction with this substantial majority.
Blankenship did not make the notations in question for the purpose of proving
Respondent's guilt. Napier, 827 N . E.2d at 569. He did not accuse Respondent of any
wrongdoing. Luginbyhl , 618 S .E .2d at 354 . A properly operating breathalyzer
instrument could just as well prove innocence as guilt. Thus, Blankenship was not
"bear[ing] testimony'' against Respondent . Crawford, 541 U .S. at 51, 124 S.Ct. at 1364.
His notations pertained only to whether certain tests were performed, the results of
those tests, and whether the machine should continue in use or be referred to the
manufacturer for repairs . The notations were made for quality control purposes and
were used at trial only to establish one of the foundational requirements for admission of
Respondent's breath-test result. Carter , 114 P .3d at 1005-06 . Blankenship probably
knows when he prepares his maintenance and test records that the information
contained therein might be used at a trial (though probably not which trials) . However,
the fact that the records have an incidental use in court as evidence of the reliability of
the machine during a particular time frame does not alter the fact that the records have
a primary business purpose that would exist, i.e. , to assure compliance with 500 KAR
8:020 § 2, even in the absence of this litigation . Green , 11 Misc. 3d 451,
N .Y.S . at
(Slip Op. at 13). As observed by the Court of Appeals of Oregon :
[T]he certifications in this case do not resemble the classic kind of
testimonial evidence at which the Confrontation Clause was aimed - _ex
parte examinations of witnesses intended to be used to convict a
particular defendant of a crime . Rather, the certifications are evidence
about the accuracy of a test result arrived at by a machine . They were
created by state employees in the course of carrying out routine ministerial
8
duties required by statute and administrative rule to certify the accuracy of
test results of Intoxilyzer machines. . . .
. . . . [The technicians] were merely ensuring that the machines
operated properly and provided accurate readings before and after
defendant's test result was obtained . Unlike police or prosecutorial
interrogators, the technicians have no demonstrable interest in whether
the certifications produce evidence that is favorable or adverse to a
particular defendant.
Norman , 125 P.3d at 18-19 .
We conclude that the notations contained in Blankenship's reports were not
testimonial, thus their admission into evidence was neither governed nor affected by the
holding in Crawford.
The law is so certified .
All concur .
COUNSEL FOR PETITIONER :
Gregory D. Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Christopher S. Nordloh
Assistant Kenton County Attorney
Room 307
303 Court Street
Covington, KY 41011
COUNSEL FOR RESPONDENT :
Harry P . Hellings, Jr.
Hellings & Pisacano, PSC
214 East Fourth Street
Covington, KY 41011
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
