Belching his way to an acquittal

The Kentucky Supreme Court is set to decide whether a burp is enough to invalidate a breath test.

It seems that Bertrand E. Howlett exhibited several signs of intoxication when he was stopped for a traffic violation back November of 2006. Mr. Howlett was arrested and taken to the station to blow in the state's breath test machine (the Intoxiliar 5000). The machine registered a .015. At trial Mr. Howlett testified that he burped before blowing into the machine.

Judge Donald Armstrong, a former prosecutor for the Commonwealth, recalled from his days as a DA that the manual for the state's breath test machine said that if suspect regurgitated that the 20-minute observation period must begin anew. The next day he found Mr. Howlett not guilty.

The state appealed Judge Armstrong's decision arguing that it was improper for the judge to consider facts not in evidence to decide the case (it was a bench trial). At no time during the proceedings did Mr. Howlett's attorney ask the court to take judicial notice of the provisions in the operator's manual. The state also argues that burping, belching and regurgitating are all different bodily acts and that a burp is not sufficient to warrant a new observation period.

The point of the observation period is to make certain that the machine is measuring only deep lung breath and not residual alcohol in the mouth. When someone burps, belches or regurgitates, they are expelling gases from their digestive system through the mouth -- and any alcohol that might still be in the stomach could contaminate a breath sample by registering a higher alcohol concentration that is present in the body.

The larger question, however, is whether or not a judge can rely on his personal knowledge when ruling on a case. Jurors are instructed that they are to make their decision based solely on the evidence presented in court. Does that same admonition hold true when a judge is the trier of fact? What if a jury is seated? Can the judge make rulings on the admissibility of evidence based on his or her personal knowledge or recollection?

If so, that's a troubling notion that can cut both ways.