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Description: Louisville, Kentucky criminal defense lawyer represented Defendant charged with DUI.


On March 1, 2018, Louisville Metro Police were called to investigate a call about an unresponsive individual (later determined to be Todd) in a car parked in the middle of the road in the Valley Station area. Upon arrival, they discovered that Todd had regained consciousness. They then conducted three field sobriety tests. Based upon the results of those tests, he was transported to Louisville Metro Department of Corrections (LMDC) on suspicion of driving while intoxicated. When Todd arrived at LMDC, Timothy Myers, utilizing the Intoxilyzer 5000 EN, performed a breathalyzer test. On March 6, 2018, Todd was charged with driving under the influence (DUI), second offense.

Todd moved to exclude the results of the breathalyzer test. He asserted that he had "burped" during the mandatory twenty-minute observation period, which would have required Myers to restart the period. However, Myers had proceeded with the test. Todd argued that the Commonwealth had failed to lay a proper foundation for the admission of the test results since it could not show proper compliance with the statutes and regulations regarding the twenty-minute observation period. The district court agreed and granted Todd's motion to exclude the test results.
Todd v. Commonwealth ex rel. O'Connell (Ky. Ct. App. 2022)

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KRS[1] 189A.103(3)(a) states:

Tests of the person's breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet, and shall have been performed, as to breath tests, only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes.

500 KAR[2] 8:030 § 1(1) states:

A certified breath test operator shall have the person under personal observation at the location of the test for a minimum of twenty (20) minutes prior to the breath alcohol analysis. During that period the subject shall not have oral or nasal intake of substances which will affect the test.

The district court specifically found that the officer performing the test began observing Todd at 4:06 a.m. and ended his observation period at 4:34 a.m.

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KRS 189A.103(4) further provides:

A breath test shall consist of a test which is performed in accordance with the manufacturer's instructions or instructions adopted by the Department of Criminal Justice Training and approved by the manufacturer for the use of the instrument. The secretary of the Justice and Public Safety Cabinet shall keep available for public inspection and provide, upon request and without charge, copies of these manufacturer's instructions or instructions adopted by the Department of Criminal Justice Training and approved by the manufacturer for all models of breath testing devices in use by the Commonwealth of Kentucky[.]

The district court found that the manual states that "if the subject regurgitates note the time and delay starting a breath test for at least an additional 20 minutes." The court then quoted the case of Eldridge v. Commonwealth, 68 S.W.3d 388, 392 (Ky. App. 2001), in which this Court held that "[b]elching and regurgitating may contaminate the mouth with alcohol volumes from the stomach, and this is a rational basis for re-administering the observation period." Based upon that holding and the district court's own observation that Todd had "burped on two separate occasions," the court held that the observation period should have been recommenced and that the operator's failure to do so invalidated the test results.
Todd v. Commonwealth ex rel. O'Connell (Ky. Ct. App. 2022)

Outcome: Reversed

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