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Monday, September 13, 2010

Courts - "Burp v Breathalyzer: Kentucky Supreme Court to decide issue in DUI case"

That is the headline to this lengthy story today by Andrew Wolfson of the Louisville Courier Journal. A few quotes:

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 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.

Also of interest, a Chicago law blog specializing in DUI.

Posted by Marcia Oddi on September 13, 2010 10:28 AM
Posted to Courts in general