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Commonwealth v. Davis9/14/2000
RENDERED: AUGUST 24,2000
TO BE PUBLISHED
CERTIFYING THE LAW
Pursuant to CR 76.37(10), the Commonwealth seeks certification of the law on the following questions:
1) Is an Intoxilyzer 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) Ambient air analysis;
(b) Alcohol simulator analysis;
(c) Ambient air analysis;
(d) Subject breath sample analysis; and
(e) 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 Intoxilyzer 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 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.
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