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Kentucky Court Gets Appeal in DUI Acquittal Based on Breath Test Burp

By Jim Greene

on September 17, 2010

The Kentucky Supreme Court should decide by the end of the year if a Jefferson County judge had the right to decide that a burp was sufficient to invalidate an alcohol breath test in a drunken driving case. The case that will come before the court may hinge, in part, on the definition of a burp.

Jefferson County District Judge Donald Armstrong, Jr., found Bertrand Howlett not guilty of driving under the influence (DUI) because the defendant burped just before a breath test was administered to estimate his blood alcohol content (BAC). Assistant County Attorney Ben Wyman argued that regurgitation is required to invalidate the test, and that a burp does not qualify.

According to the operation manual for the Intoxilyzer 5000EN device used to test Howlett, if a test subject regurgitates, testers must wait at least 20 minutes before taking a sample, in order to get an accurate reading. That’s the time required for alcohol from anything rising from the digestive tract to dissipate, allowing the analyzer to measure only the alcohol content of air from the lungs, which approximates the BAC.

Armstrong said he remembered from his time as a county prosecutor that burping was a disqualifier. His acquittal of Howlett was based on that memory, which Wyman said was inaccurate.

By current Kentucky law, the acquittal cannot be reversed, so Jefferson County officials are asking the Supreme Court to revoke a judge’s ability to base a ruling on personal memory. According to current state law, a judge can recognize facts not admitted by either the defense or the prosecution, but the prosecutors say such actions should be limited to facts which are self-evident or common knowledge, not solely the recollection of the judge.

If you’ve been arrested for drunken driving, contact an experienced DUI attorney. There are many gray areas in proving that a person is too impaired to drive, and mistakes are made, especially by inexperienced law enforcement personnel. If you don’t think you received fair and impartial treatment at the time of your arrest, your attorney will fight to ensure that your day in court affords you all your rights as a defendant. If you are convicted, your attorney will be just as diligent in ensuring that your punishment is just.

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