 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Davis9/14/2000
dmissibility. 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.
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.
|