By Andrew Wolfson, The (Louisville) Courier-Journal
SEPT 13, 2010
LOUISVILLE — If you burp when taking an alcohol breath test, does it invalidate the test?
That’s a question the Kentucky Supreme Court will confront when it hears a case that focuses on whether a judge erred in throwing out a drunken-driving case because the defendant burped just before he was given the test.
The case began three days after Thanksgiving in 2006, when a St. Matthews police officer said he observed Bertrand Howlett speeding and nearly running off the road. In a breath test, Howlett registered a blood-alcohol level of 0.15% — nearly twice the level at which drivers are considered intoxicated in Kentucky. But before the test, Howlett later testified, he had burped.
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When the case reached Jefferson District Court Judge Donald Armstrong on Jan. 26, the judge acquitted Howlett based on Armstrong’s recollection — from years earlier when he was a prosecutor — that a burp could skew the results.
The Intoxilyzer device’s manual says if a suspect “regurgitates,” the operator should delay the test for 20 minutes. That is to ensure that any residual alcohol in the mouth has dissipated so the device measures only alcohol exhaled from the lungs.
Assistant County Attorney Ben Wyman, who prosecuted Howlett, said the district court “misunderstood ‘burp’ vs. ‘regurgitate.’ “
Howlett’s lawyers, Paul Gold and Mike Mazzoli, said Kentucky’s law and regulations on breath tests don’t use words such as “regurgitate” or “belch” to specify what an operator must watch for before the test. That means that Armstrong had the discretion to determine whether a burp was sufficient to invalidate the results, they said.
The prosecution cannot appeal an acquittal. Still, Wyman is asking the Supreme Court to decide whether judges in Kentucky should be allowed to make rulings based on personal experience. Wyman said they should not — because judges can get things wrong. In Howlett’s case, he said, the judge produced a “manifest injustice.”
Gold and Mazzoli, who said their client adamantly denied driving while intoxicated, argue that Kentucky’s laws don’t prohibit a judge from considering evidence as fact based on the judge’s own knowledge and experience.
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