"It is considered crass in most cultures, and hardly a subject of polite conversation. But now the Kentucky Supreme Court must answer a profound legal question about the burp — is one enough to invalidate an alcohol breath test?
A Jefferson District Court judge decided that it is, acquitting an accused drunk driver in January based solely on the judge's recollection — from years earlier, when he was a prosecutor — that a burp could skew the results.
Now, that case is before the state Supreme Court, with ramifications that lawyers on both sides say extend beyond the belch — or even its impact on breath tests. They say the court's decision could determine to what extent judges may rely on their own knowledge and experience in admitting evidence in cases of all kinds.The final brief in the case was filed last month and the Supreme Court will probably rule on it later this year.
The case began three days after Thanksgiving in 2006, when a St. Matthews police officer said he observed Bertrand E. Howlett speeding and nearly running off the road.
Howlett smelled of alcohol, had bloodshot eyes and failed a field sobriety test, according to the officer, who charged him with driving under the influence.
When tested later at the Jefferson County jail, Howlett blew a 0.15 — nearly twice the level at which drivers are presumed intoxicated in Kentucky. But before the test, Howlett later testified, he had burped. It wasn't a loud burp — it may even have been inaudible, he testified. But the manual for the Intoxilyzer 5000EN machine used in Kentucky says the operator must observe the suspect for 20 minutes before giving the test to ensure he avoids 'oral or nasal intake of substances which will affect the test.' If the subject 'regurgitates,' the manual says, the operator should delay the breath test for an additional 20 minutes. The idea is to ensure that any residual alcohol in the mouth has dissipated, so the machine measures only the alcohol exhaled from the lungs.
Jefferson District Judge Donald Armstrong Jr. tried the case without a jury Jan. 26, (the trial was delayed for several years because of unrelated litigation over the Intoxilyzer) then thought about it overnight. He returned the next day and said he had a problem. During his 23 years as an assistant county attorney — six of them prosecuting DUI cases — he had read the Intoxilyzer manual many times, he said, and recalled that it said if a suspect burps, the operator must wait another 20 minutes before testing. Finding that Howlett definitely burped, and the officer who conducted the test didn't wait long enough to perform it, Armstrong said he had a reasonable doubt about the defendant's guilt.
'Therefore,' Armstrong pronounced, 'I'm going to find him not guilty.'
The prosecution cannot appeal an acquittal. But saying Armstrong's ruling produced a 'manifest injustice,' the county attorney's office is asking the Supreme Court to decide whether judges in Kentucky should be allowed to consider facts in evidence that are based on their own knowledge. Judges routinely take what is called 'judicial notice' of facts that are beyond dispute. For example, a judge will note that a crime that took place at 'Fourth and Broadway' occurred in Jefferson County, meaning the prosecution doesn't have to prove it. Only facts that are 'not subject to reasonable dispute' can be 'judicially noticed.'
Under the rules, two categories of facts qualify: Those generally known in the county where the case is heard, and those that can be readily confirmed by 'sources whose accuracy cannot reasonably be questioned.'
But the rules in Kentucky are silent about whether a judge should be able to rely on his own knowledge in making such a declaration.
Assistant County Attorney Ben Wyman, who prosecuted Howlett and is representing his office before the Supreme Court, says they should not –— in part because judges can get things wrong. He said that's what happened in Howlett's case.
'The court went out of its way to find a reason, based on the court's own incorrect personal recollection, to dismiss a DUI case on grounds that were beyond any evidence or argument put forth by the parties,' Wyman said. He said Howlett's lawyer, Paul Gold, a former district judge, presented no proof or argument that the 'alleged burp' would have made any difference in the test, and did not ask Armstrong to take judicial notice of that phenomenon. Plus, Wyman said, Armstrong misremembered the manual — it requires a delay only when the suspect 'regurgitates,' Wyman said, citing the 2000 edition of the Intoxilyzer manual.
'The court … misunderstood ‘burp' versus ‘regurgitate,' Wyman said. 'The manifest injustice isn't that the commonwealth lost a DUI charge,' Wyman said, 'it is how the commonwealth lost.'
On the broader issue — whether judges may rely on their own knowledge — Wyman said courts in Kentucky and elsewhere have said they may not. For example, he noted that when a judge in California ruled that a defendant's statements made as he was recovering from surgery were involuntary and inadmissible — based on the judge's own experience recovering from anesthesia — he was overruled by a federal appeals court."
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A couple of things are going on in this case that are remarkable. The prosecutors suspect that the Judge ruled against them becasue of favoritism and that he used his ability to exercise "judicial notice" of a fact that he remembered as a "fig leaf." Or as lawyers often say, "we need to give the judge a peg, to hang his hat on." In other words, we expect that this or that finder of fact and law is inclined to rule this or that way--but we need to give him or her a reason to rule our way without embarassing them, or so they will be upheld on appeal.
"Judicial Notice" of a fact is usually not terribly controversial, because it usually does not relate to technical aspects of evidence. Here, the judge is supplying recollection of a technical fact that is built on a foundation supplied by the testimony of the defendant about burping. It's a very interesting decision and outcome and it demonstrates that no issue in the law goes unexamined at one time or another. It's actually pretty marvelous--a Supreme Court Case on burping.
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