Breathalizer vs Burp

September 5, 2010 | By Andrew Wolfson |

The Courier-Journal

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 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 the 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. 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’s blood-alcohol level registered 0.15 percent — nearly twice the 0.08 percent level at which drivers are presumed to be 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.

The manual for the Intoxilyzer 5000EN machine used in Kentucky says the operator must observe the suspect for 20 minutes before giving the breath 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 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 that 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 value of personal


The prosecution cannot appeal an acquittal. But saying that 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,” he 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,” he 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.

‘The significance

of a belch’

Howlett’s lawyers, Gold and Mike Mazzoli, take a different view.

They say their client adamantly denied driving while intoxicated, that he swerved only because he was trying to reconnect a wire between his iPod and his car stereo, and that he failed a field sobriety test only because he couldn’t hear the officer’s instructions over the racket of a noisy street sweeper.

They note that during the trial, the prosecution never disputed “the significance of a belch,” but only whether Howlett “had, in fact, belched.”

And they point out that Kentucky’s DUI law and regulations on breath tests don’t use explicit words like “regurgitate,” “vomit” or “belch” to specify what the operator must watch for in the 20 minutes before the test.

That means that Armstrong had to determine whether a burp was sufficient, they said.

They also point out that the Kentucky Court of Appeals has previously held that belching can contaminate the test and that the same thing has been spelled out by courts in Idaho, Illinois and Minnesota.

“Having found that Mr. Howlett burped during the observation period, it was fully understandable that Judge Armstrong had a reasonable doubt about the validity of the test,” Mazzoli and Gold say in their brief.

Howlett didn’t return a telephone message, but Gold said he cares about the Supreme Court’s resolution of the case, even though he was acquitted, because he had no prior record and “feels the test was wrong.”

On the broader issue, Mazzoli and Gold say that while Kentucky’s rules of evidence don’t specifically say that a judge can take judicial notice of a fact that comes from his personal knowledge, they also don’t say he can’t.

They cite a “moment of levity’ in Howlett’s trial during which he testified about drinking six beers the day before his arrest — in part while watching the Kentucky-Tennessee football game on television.

“That means Kentucky lost,” Armstrong said, to which Howlett replied, “I believe you’re right.”

“No, you don’t have to believe me,” Armstrong countered. “They have beaten them in 20 years.”

Wyman jokingly asked, “Was that judicial notice?” and Armstrong said it was.

In their brief, Mazzoli and Gold say the “fact that University of Kentucky had been suffering a decades-long drought in its rivalry with Tennessee was obviously a fact that came from the judge’s personal knowledge.

“Nevertheless,” they say, “it was most certainly — and unfortunately — a fact capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

Reporter Andrew Wolfson can be reached at (502) 582-7189.

Ky. Supreme Court

will rule on use in

DUIs, and if judges’

recollections count

“The manifest injustice isn’t that the commonwealth lost a DUI charge, it is how” it lost.

BEN WYMAN, assistant

Jefferson County attorney

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

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