Judge Martin J. Sheehen Vindicated by U.S. Supreme Court – It took twelve years, but his important ruling in the “Rosetta Stone Case” has now been upheld.
By LawReader Senior Editor Stan Billingsley July 2, 2009
Twelve years after the Kentucky Supreme Court shot down some DUI rulings made by then Kenton District Judge Martin J. Sheehan (now Kenton Circuit Judge) he was vindicated by the U.S. Supreme Court in a ruling handed down on June 25, 2009.
In 1996 the Kentucky Supreme Court in Commonwealth v. Wirth, 936 S.W.2d 78, considered a case which was called by us as ‘THE ROSETTA STONE CASE”.
We call Judge Sheehen’s ruling made in the Kenton District Court in 1994, the “Rosetta Stone Case” because it aggregated some half dozen legal issues that were of great importance to the practice of DUI law and we felt it would explain the law just as the real Rosetta Stone lead archeologists to an understanding of the written Egyptian language.
Sheehan told LawReader that he was presented with a case which raised numerous issues which were then being debated by the bar, and he attempted to discuss and resolve all of those issue in one case. He was aware that his ruling would likely be reviewed by the Court of Appeals and the Supreme Court.
He was correct. The Court of Appeals and later the Kentucky Supreme Court heard his ruling and were (we will use the word) “dismissive” of Sheehan’s ruling.
One key ruling Sheehan made was that the records of the BA technician could not be introduced without the technician being present and available for cross-examination.
On June 25th, we believe the U.S. Supreme Court answered that question, and upheld Sheehan’s reasoning, in Melendez-Diaz v. Massachusetts, No. 07-591.
The Supreme Court held that a state forensic analyst’s lab report that is prepared for use in a criminal prosecution is subject to the demands of the Sixth Amendment’s Confrontation Clause. With Justice Antonin G. Scalia writing for the majority and joined by Justices John Paul Stevens, David H. Souter, Clarence Thomas, and Ruth Bader Ginsburg, the Court reasoned that the lab reports constitute affidavits which fall within the “core class of testimonial statements” covered by the Confrontation Clause. Therefore, when Mr. Melendez-Diaz was not allowed to confront the persons who created the lab reports used in testimony at his trial, his Sixth Amendment right was violated.
The U.S. Supreme Court held that crime laboratory reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination. Justice Scalia wrote: “The confrontation clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination.”
Cross-examination of witnesses, Justice Scalia wrote, “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” He added that the Constitution would require allowing defendants to confront witnesses even if “all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”
We believe, that this ruling applies to the ruling in Wirth by the Ky. Supreme Court that allowed BA technicians to submit a written report about the BA machines status, and held that the technician did not have to appear at trial on this issue.
Melendez-Diaz argued that the State’s introduction of the drug analysis certificates violated his Sixth Amendment right to confront witnesses against him under the Court’s ruling in Crawford v. Washington. Crawford had held that so-called “testimonial” evidence cannot be introduced at trial unless the defendant has a chance to cross-examine the witness providing the evidence. Melendez-Diaz characterized the lab analysis as testimonial and argued that Crawford required the lab technician to testify on the results.
The Melendez ruling now establishes that crime lab reports are “testimonial” in nature and thus subject to Crawford v. Washington.
CRAWFORD V. WASHINGTON, 124 S.Ct. 1354, 158 L.Ed.2d 177 (U.S. 03/08/2004) was issued almost ten years after Judge Sheehan made his ruling in the original Wirth case. In 2004 in Commonwealth v. Walther he again issued a ruling against the admission of BA lab technician reports without the technician having to be present, and cited Crawford v. Washington, which upheld and applied the confrontation clause of the 6th. Amendment to a similar case.
The Kentucky Supreme Court quickly granted discretionary review of Sheehan’s decision in Walther the same year. In 2004 the Kentucky Supreme Court in Commonwealth v. Walther ,189 S.W.3d 570 once again overruled Judge Sheehan on his ruling which held that a BA technician’s report about the working condition of a BA machine was “testimonial” and therefore subject to Crawford v. Washington limitations.
The Kentucky Supreme court said in their ruling in Walther :
“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 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.1 We granted the Commonwealth’s motion to certify the following question of law:
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 Commonwealth v. Roberts, 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.2 We disagree.
A footnote in the Walther decision identified Judge Sheehan, in an unusual comment not generally found in Supreme Court decisions:
“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.”
Our reading of Melendez leads us to conclude that the U.S. Supreme Court has applied the “confrontation clause” to the reports of all crime lab technicians and this includes BA technicians. This means that in future DUI cases where BA testimony is sought to be introduced by the Commonwealth, they must produce the BA technician, and he will be subject to cross-examination.
We concede that there is the possibility that a future Supreme Court will interpret Melendez differently and may try to say that a BA technician is not the same as a Crime Lab technician…but any fair reading of Melendez says such reports are “testimonial” and therefore subject to the confrontation clause.
We note the Kentucky Supreme Court has whittled down Daubert over the years to make exceptions allowing the introduction of “junk science’ such as drug dog testing, fingerprints, etc. and it is possible that they might try to find a way to sidestep Melendez.
On the other hand, this strong ruling in Melendez might just as well be viewed by the current Ky. Supreme Court as justification to re-examine recent rulings which have limited the Daubert test rule in Kentucky . We note that Melendez for the first time recognized the serious questions of reliability of many crime lab procedures, and a national study has recently criticized the way courts blindly use questionably science.
The Bottom Line is that Judge Sheehan was right twelve years ago, and we compliment him for his foresight.
See Walther and Wirth decisions:
189 S.W.3d 570
COMMONWEALTH OF KENTUCKY, Petitioner
v.
Liberty Astin WALTHER, Respondent.
No. 2005-SC-0001-CL.
Supreme Court of Kentucky.
April 20, 2006.
Page 571
Gregory D. Stumbo, Attorney General, Frankfort, Christopher S. Nordloh, Assistant Kenton County Attorney, Covington, Counsel for Petitioner.
Harry P. Hellings, Jr., Hellings & Pisacano, PSC, Covington, Counsel for Respondent.
COOPER, Justice.
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.010(1)(a), or while under the influence of alcohol, KRS 189A.010(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”
Page 572
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”
Page 572
in nature and, thus, inadmissible under the United States Supreme Court’s holding 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.1 We granted the Commonwealth’s motion to certify the following question of law:
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 Commonwealth v. Roberts, 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.2 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 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.
Page 573
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.4 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 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
Page 574
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,” e.g., the “particularized guarantees of trustworthiness” articulated 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, e.g., 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,5 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).7
Page 575
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, 212 Ariz. 182, 129 P.3d 471, 480 (Ct.App.2006); Rackoff v. State, 275 Ga.App. 737, 621 S.E.2d 841, 845 (2005); Napier v. State, 827 N.E.2d 565, 569 (Ind. Ct.App.2005); State v. Carter, 326 Mont. 427, 114 P.3d 1001, 1007 (2005); State v. Godshalk, 381 N.J.Super. 326, 885 A.2d 969, 973 (Law Div.2005); Green v. DeMarco, 11 Misc.3d 451, 462-63, 812 N.Y.S.2d 772, 780-81 (N.Y.Sup.Ct.2005); State v. Norman, 203 Or.App. 1, 125 P.3d 15, 18-19 (2005); Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347, 354-55 (2005); 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, 462-63, 812 N.Y.S.2d at 780-81. 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 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.
—————
Notes:
1. 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 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. 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.
5. E.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.Rev. 849, 862 (1989).
6. Id. at 851-52.
7. 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.
—————
WIRTH:
936 S.W.2d 78
COMMONWEALTH of Kentucky, Appellant,
v.
Michael Alan WIRTH, Appellee.
No. 95-SC-402-CL.
Supreme Court of Kentucky.
Sept. 26, 1996.
Rehearing Denied Jan. 30, 1997.
Page 79
A.B. Chandler, III, Attorney General, Frankfort, Garry L. Edmonson, Kenton County Attorney, Covington, for appellant.
Robert A. Riley, Assistant Public Advocate, LaGrange, Edward C. Monahan, Assistant Public Advocate, Frankfort, for appellee.
Wilbur M. Zevely, Florence, for amicus curiae.
LAMBERT, Justice.
We granted the Commonwealth’s request for certification of the law (Ky. Const. § 115 and CR 76.37(10)) to determine the proper construction of KRS 189A.010 and other statutes which deal with driving under the influence of alcohol. In a broadly interpretive opinion, the Kenton District Court construed the statute to require, inter alia, a pre-trial election by the Commonwealth as to which of the four subparts of KRS 189A.010(1) it would undertake to prove, and to require additional warnings by which a defendant would be informed that he may not be compelled to submit to any chemical testing and to further correct perceived inaccuracies in the statutory warnings. The trial court also held that without expert testimony to prove the absorption rate of alcohol, chemical testing performed after the last ingestion of alcohol will not be admitted in evidence to prove blood alcohol content at the time the defendant was driving. Finally, the trial court held that expert testimony as to the proper operation of the machine would be required to establish a foundation for admission of the results of a breath test.
We have been informed that great uncertainty and inconsistency prevails within the divisions of the Kenton District Court and perhaps in district courts elsewhere in Kentucky. In this opinion we will answer the questions which have been raised while recognizing, nevertheless, that respondent, for reasons of double jeopardy, may not be further prosecuted due to the trial court’s finding that he was not guilty of a violation of the per se statute, KRS 189A.010(1)(a).
After having been observed driving in an erratic manner after midnight on December 3, 1994, respondent was stopped by a Villa Hills police officer on suspicion of violating
Page 80
the alcohol driving laws. After failing various field sobriety tests, respondent was arrested and taken to the police station. At the station, an officer who was certified to operate the Intoxilyzer 5000 read respondent the warnings required by KRS 189A.105. After observing respondent for twenty-three minutes, the test was administered and the result obtained was .156 blood alcohol content. After various pre-trial motions and a suppression hearing, the case was set for trial by jury. Thereafter, however, respondent waived his right to a jury trial and the case was submitted to the trial court upon a joint stipulation of facts. The facts so stipulated were that the arresting officer had probable cause to arrest respondent; that the warning required by KRS 189A.105(1)(a) was read to respondent; that the operator was properly certified to operate the Intoxilyzer 5000 pursuant to the administrative regulations; that the administration of the breath test followed the proper sequential steps required by the regulations; that the ambient air sample fell within an acceptable range; and that respondent was observed for twenty-three minutes before the breath test was given.
Despite the stipulated facts, the trial court found defendant not guilty substantially on grounds that the Commonwealth had failed to introduce evidence which related the Intoxilyzer result back in time to the point at which respondent had last been observed operating a motor vehicle, a period found to be one hour and twelve minutes. On this basis, the charges against respondent were dismissed.
The first issue we will address is whether the Commonwealth must elect under which section of KRS 189A.010(1) it intends to proceed. In this case, as is typical, the required election was between (a) and (b). Subsection (a) provides that a violation occurs when a person operates or is in physical control of a motor vehicle while the alcohol concentration in his blood or breath is .10 or greater. This is usually referred to as the “per se ” statute and requires proof only of .10 or more alcohol concentration without regard to its effects on motor vehicle operation. King v. Commonwealth, Ky.App., 875 S.W.2d 902 (1994). Subsection (b) proscribes operation or physical control of a motor vehicle while under the influence of alcohol. This subsection broadly deals with the effect of alcohol on the motor vehicle operator and is usually proven by evidence of aberrant driving behavior.
The conduct proscribed in KRS 189A.010(1)(b) is not substantially different than under former law. What is different is subsection (a) which criminalizes the presence of chemicals in a defendant’s blood or breath. In our view, this provision does not create a new or separate offense, but merely provides an additional means by which a motor vehicle alcohol related offense may be committed. While an additional means of committing the offense has been created, the punishment remains one and the same. As we see it, therefore, the question is whether in circumstances where a defendant may be guilty of violating two or more sections of the same statute, but subjected only to a single punishment, is it proper for the prosecution to go forward with all available proof of statutory violations, and permit a conviction on whatever basis is supported by the evidence. The answer is in the affirmative. Robards v. Commonwealth, Ky., 419 S.W.2d 570 (1967).
The trial court has read KRS 189A.010(1) to prefer or even mandate only a per se prosecution if such evidence is present. It said:
The legislative scheme appears to have envisioned that all cases involving a BA reading or blood alcohol content of .10% or greater would be tried under KRS 189A.010(1)(a) as a per se offense….
Slip op. at 7.
The legislative intent to encourage that all DUI cases with a BAC of .10% or higher be tried as “per se” cases is strongly evidence in the provisions of KRS 189A.010(2). In this statute the legislature omitted the presumption of intoxication that was present in prior law. This means that under KRS 189A there is no positive statutory presumption of intoxication if the BAC is .10% or higher. The only statutory presumptions in this Chapter regarding intoxication are now negative or neutral
Page 81
presumptions and only apply in cases where the BAC is less than .10%. The theory goes that since there is no longer any need to prove intoxication or impairment, only the reading in excess of the statutory minimum is relevant. Therefore, there is no longer a need for a presumption of intoxication or impairment.
Slip op. at 9. We find no support in the statute for this interpretation. We observe that the obvious reason for the omission of any presumption when the blood alcohol content reading is .10 or greater is that a completed offense is established thereby, rather than a rebuttable presumption of impairment of driving ability. King v. Commonwealth, supra.
We have recently reiterated the viability of alcohol driving prosecutions based on evidence other than that which is derived from scientific testing. Commonwealth v. Hicks, Ky., 869 S.W.2d 35 (1994), we quoted with approval from Allen v. Commonwealth, Ky.App., 817 S.W.2d 458 (1991), and stated that a DUI conviction could be sustained without evidence procured by use of a device for measuring intoxication. We held that the trial court erred in dismissing a case over prosecution objection where the scientific evidence had not been admitted. Indicating that the observations of the police officer would have been sufficient to make a prima facie case for the jury, we said:
In such a circumstance, the Commonwealth was entitled to go forward and the trial judge was without authority to dismiss the case. We reiterate, it is not the province of a trial court to determine that a case should be dismissed contrary to the wishes of a party who has announced ready for trial.
While we do not agree with an interpretation that the statute or laws requires an election as to which of the four statutory subsections will be prosecuted to the exclusion of all others, it would appear that fundamental fairness and appropriate trial preparation requires notice as to which statutory subsections will be proven by the Commonwealth. Such notice should be given in good faith within a reasonable time prior to trial to permit the defendant to assemble evidence in opposition to the charges against him. A blanket notice covering all possible violations without regard to the available evidence would defeat the purpose and be tantamount to no notice at all.
Accordingly, it is our determination that the trial court erred with respect to its prohibition against a prosecution pursuant to KRS 189A.010(1) upon multiple theories. Where there is evidence to prove one or more theories of the case, the Commonwealth may present all such evidence and have the jury render a verdict thereon.
The next question presented is whether the warning provided for in KRS 189A.105 is insufficient and should be supplemented with additional warnings. It was the trial court’s opinion that the warnings enumerated in KRS 189A.105(1)(a)(1), (2) and (3) are inaccurate and contain misinformation and should be supplemented so as to avoid any misleading and achieve greater accuracy. In particular, a primary focus is placed upon the provision which states that “no person shall be compelled to submit to any test or tests.” KRS 189A.105. Appellee insists that not only are the warnings set forth in the statute inaccurate, but that it would be impossible to craft a warning which would be truly adequate. The remedy he proposes is to inform a defendant of his right to counsel prior to deciding whether to take or refuse a breath or blood test.
Initially, we discern no basis upon which a court may sua sponte supplement a warning required by a statute. Quite plainly the statute states that at the time a breath, blood or urine test is requested, the person shall be informed of certain matters. If such a warning is inaccurate, only the Legislature possesses power to modify it to achieve greater accuracy except where the inaccuracy would be so grave as to amount to a constitutional violation. While one may envision a fact pattern in which the required statutory warning would be inaccurate or misleading as applied, in general, it is not, and the trial court was without authority to require supplementation of the warning. In the context of a defendant’s constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct.
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1709, 23 L.Ed.2d 274 (1969), this Court has held that one pleading guilty need not be informed of every possible consequence of the guilty plea. We observed that a multitude of events occur in a criminal proceeding which might influence a defendant to plead guilty or stand trial and that it would be impossible to inform a defendant of all facts and law which might affect his decision. Jewell v. Commonwealth, Ky., 725 S.W.2d 593 (1987). The same reasoning applies here.
In addition, we wish to correct what appears to be a widespread misinterpretation of the statute. By virtue of KRS 189A.103, one who operates a motor vehicle consents to a test of his blood, breath or urine for the purpose of determining alcohol concentration. The phrase “no person shall be compelled” in KRS 189A.105 could not rationally have been intended to contradict the consent provisions of KRS 189A.103. A more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing.
The courts of this Commonwealth have not heretofore extended the constitutional right to counsel to the pre-chemical test stage of the proceeding and we decline to do so now. Newman v. Stinson, Ky., 489 S.W.2d 826 (1972); Commonwealth, Transportation Cabinet v. Cornell, Ky.App., 796 S.W.2d 591 (1990).
The next issue we will address concerns the foundation requirement for admission of a breath test. While admitting in evidence the result of the breath test in this case, as a condition of such admission the trial court required testimony from the technician who serviced the machine as a foundation for such evidentiary admission. The trial court recognized that “of all the District Courts in Kentucky, this is one of the very few that requires testimony from the B/A technician as a foundation element for introduction of B/A results.” Slip op. at 18. It rejected the widespread use of the business and public records exception to the hearsay rule (KRE 8.03(6) and (8)) as evidence of timely and proper calibration of the machine to assure its accuracy, and instead relied upon a 1975 opinion of the Ohio Court of Appeals, State v. Fellows, 47 Ohio App.2d 154, 352 N.E.2d 631 (1975), which required the testimony of the person who calibrated the machine.
More than twenty years ago this Court decided Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972), and Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972). We held that the test result should be admitted on the testimony of the operator:
We believe the integrity was sufficiently established as the operator of the machine testified concerning the training and the operation of the machine, that all necessary preoperation checks were performed and that the machine was functioning satisfactorily.
It is generally held that the prosecution has the burden of proving tests such as the breathalyzer were correctly administered. At a minimum this proof must show that the operator was properly trained and certified to operate the machine and that the machine was in proper working order and that the test was administered according to standard operating procedures. We believe the proof in this case met these requirements.
Id. at 900-01. The standard set forth in Marcum and Owens remains the principal foundation requirement. The only additional requirements are found in KRS 189A.103(3)(a), KRS 189A.103(4), and 500 KAR 8:020(2), which may be satisfied by means of business or public records showing compliance with the additional requirements. Provided the documentary evidence may be properly admitted, it is unnecessary to produce the testimony of the technician who serviced and calibrated the machine.
While this Court would be loath to discourage scholarship and thoughtful application of the law, we remain mindful of SCR 1.040(5) which requires the trial courts of this Commonwealth to follow applicable precedents of the Supreme Court or where there are no such precedents, those established in the opinions of the Court of Appeals. Where this Court or the Court of Appeals has spoken
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to a particular issue, trial courts are not at liberty to embrace the contrary decisions from other jurisdictions even though they may believe them to be preferable.
As to appellee’s contention with respect to a qualitative differences between prosecutions under the per se statute and under the law as it was when Owens v. Commonwealth was decided, we first observe that the conviction in Owens was for manslaughter in the second degree. In that case, the breath test evidence was admitted and amounted to persuasive evidence of the appellant’s intoxication at the time he struck another vehicle and killed the driver. Thus, the contention that greater certainty is required now than under former law is unpersuasive. In fact, breath testing for intoxication has been in existence for a long time and has been used in a variety of prosecutions. While breath testing may not be flawless, it has been determined to have sufficient reliability to be admissible in evidence and to sustain a conviction. Morgan v. Shirley, 958 F.2d 662 (6th Cir.1992). We discern no need or basis upon which to require a greater degree of certainty.
The final issue is whether the Commonwealth was required to present expert testimony by which the breath test result would be related back in time to the point of motor vehicle operation. The statute at issue here makes it an offense to be in physical control of a motor vehicle while the alcohol concentration in the driver’s blood or breath is .10 or more. In every case a significant period of time will elapse between the time of driving and the time of testing. In this case that period was one hour and twelve minutes. Even if there was no time taken for travel or administrative activities associated with the arrest and testing, manufacturers’ protocols require at least twenty minutes observation during which the subject to be tested may not ingest any substances. The contention which emerges is that the test does not reflect the true blood alcohol content at the time of operation or control of a motor vehicle. 1 The trial court agreed:
This Court rules that the B/A test result obtained within a reasonable time of operation, while admissible, does not make a prima facie case for violation of KRS 189A.010(1)(a). In order for the state to make a prima facie case there must be some evidence relating the BAC back to the time of operation.
Slip op. at 25. The court’s ruling was despite its recognition that
from a practical standpoint, most of the information necessary to accurately extrapolate B/A results is solely within the knowledge of the accused. For example, information regarding food consumption, duration of alcoholic beverage consumption, the quantity of alcohol consumed and the time alcohol consumption ceased is all information critical to extrapolation. Unfortunately, from the prosecutorial standpoint, in most cases such information is solely within the knowledge of the accused, not the Commonwealth.
Slip op. at 26.
We recognize that other jurisdictions are divided as to whether extrapolation evidence is necessary. While it is widely acknowledged that one’s alcohol concentration level may change between the time of driving and testing, in most cases the delay will favor the defendant by producing a lower reading. An exception would be where one drank an extraordinary quantity in a brief period as described in n. 1, hardly a factual circumstance we should use to establish a benchmark. A literal interpretation
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of KRS 189A.010(1)(a) would require instantaneous testing to obtain a conviction under the per se statute. Such an interpretation would, of course, effectively abolish the statute. We are required to refrain from construing statutes in such a manner. Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984). A more appropriate construction may be achieved by reference to KRS 189A.103, a statute which details testing procedures and addresses questions of validity, timeliness, etc. When the per se statute is read in conjunction with KRS 189A.103, it becomes manifest that instantaneous testing is not required. Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994). What is required is compliance with the statutes and regulations. Extrapolation evidence is not required for the Commonwealth to make a prima facie case of a per se violation. KRS 189A.010(1)(a).
Our view with respect to extrapolation evidence is strengthened by the fact that without the defendant’s cooperation, no valid extrapolation can occur. As the trial court observed, a number of facts known only to the defendant are essential to the process. This Court has long recognized that in exceptional circumstances the burden of going forward may be upon the accused where exempting facts are peculiarly within his knowledge. This proposition was stated Smith v. Commonwealth, 313 Ky. 113, 230 S.W.2d 478 (1950), as follows:
It is a general rule running through the law of evidence that where the negative of an issue does not permit of direct proof, or where the facts are more immediately within the knowledge of the defendant, the burden of proving that such averment is not true rests upon him.
Smith, 230 S.W.2d at 479 (quoting Smith v. Commonwealth, 196 Ky. 188, 244 S.W. 407, 408 (1922)).
In our view, an extrapolation based only on the lapse of time between driving and testing is no more reliable than the result yielded by a breath test a reasonable time later. As a safeguard, KRS 189A.103(7) permits a person who has been tested to obtain, in addition, a test or tests administered by a person of his choosing. Certainly nothing would prevent a defendant from producing his own extrapolation expert based on the test administered by the police and the tests voluntarily taken.
We have been directed to Pence v. Commonwealth, Ky.App., 825 S.W.2d 282 (1992), in which the Court recognized the difficulty of proving blood alcohol levels at the time of motor vehicle operation rather than at the time of testing. Nevertheless, it was conceded that for purposes of the legal analysis, intoxication was established. Painstakingly the Court noted the absence of evidence which would have established when the defendant drove the vehicle. Inferentially, if such evidence had been present, the conviction would have been sustained. In the instant case we know when the defendant last drove the vehicle. We also know that without access to any additional alcoholic beverage he had a blood alcohol concentration of .156 one hour and twelve minutes later. The necessary facts which were missing in Pence are present here. We have also been directed to Timmons v. Commonwealth, Ky., 555 S.W.2d 234 (1977), and believe its analysis should be considered here.
We do not dispute the proposition that the proof of each essential element of a crime, including the corpus delicti, must be sufficient to justify reasonable minds in finding its existence beyond a reasonable doubt. When the evidence bearing on one particular element is circumstantial, as it was in this instance, not only is it necessary, but reasonable and customary, to resort to the evidence as a whole for an assessment of the probabilities.
Id. at 237.
Rhetorically, we have been asked when the lapse of time between driving and testing for alcohol intoxication becomes so great as to prevent a rational trier of fact from determining guilt based thereon. In this case we need not attempt to formulate a bright line rule nor anticipate every possible state of facts which might arise. For our purposes it is sufficient to say that the evidence presented here in support of a per se violation easily met the “beyond reasonable doubt” standard. While a trier of fact, whether it be a trial court or a jury, may
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have the power to disregard compelling evidence or impose a standard of its own which is so great as to be incapable of satisfaction, such power does not logically validate the result. Measured against proper standards of evidentiary analysis, the decision of the trial court was in error.
The law is so certified.
STEPHENS, C.J., and BAKER, GRAVES, KING, LAMBERT and STUMBO, JJ., concur.
WINTERSHEIMER, J., not sitting.
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Amicus curiae, The Kentucky Association of Criminal Defense Lawyers, has explained this theory as follows:
The simplest way to understand this theory is to assume an individual chugs or instantly consumes a pint of whiskey. This individual then immediately drives and is stopped for speeding or some other minor traffic violation. If he does not do well on the field sobriety tests, as few people do whether sober or not, he is arrested. Some period of time later, generally 20 minutes to 1 hour, he is given the Intoxilyzer and blows a number of somewhere around a .20. When this individual drove, obviously, his blood level was at or near 0.00. When he was tested, his blood alcohol was enormous because the whiskey that he instantly consumed had time to make it’s [sic] way into his system. It is well known that absorption of alcohol from the stomach into the blood takes between 40 minutes to several hours, depending upon the facts in any given case.