Evidence concerning alcohol intoxication can constitute circumstantial proof impugning the accuracy of the blood and breath-alcohol concentration tests.
A question frequently comes up in "per se" DUI prosecutions whether the accused can attack the Intoxylizer 5000 results. Prosecutors have argued that evidence of alcohol intoxication is not relevant in DUI "per se" prosecutions.
The Court in Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 08/16/2002) addressed this issue.
The Mattingly Court stated that juries are entitled to draw reasonable inferences from circumstantial evidence, and that such evidence is relevant because it makes less probable a material element of DUI per se - whether the accused's blood- or breath-alcohol concentration was .08 or higher.
Therefore, at trial in Kentucky, a defendant may introduce evidence that the Intoxylizer 5000 breathalyzer test was not accurate by introducing evidence of his intoxication.
For example, an accused could offer proof that he suffers a severe alcohol allergy, thus preventing him from consuming alcohol. Similarly, he could offer proof that he only consumed a single alcoholic beverage a considerable time before administration of the breathalyzer test. Clearly, the evidence in the above examples would tend to impugn any contrary results of a breathalyzer test.
Likewise, evidence that an accused performed satisfactorily in a field sobriety test could also tend to impugn the test results showing a blood-alcohol concentration above the legal limit.
Post by Lexington Kentucky Attorney Stephen J. Isaacs, Isaacs Law Office, Kentucky DUI Defense Lawyer.
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