Intoxilyzers, DUI, and admissibility of PBT for probable cause: GREENE V. COM. (COA 1/4/2008)

GREENE V. COM.
CRIMINAL:   DUI – Admissibility of intoxilyzer results  and Preliminary Blood Test (PBT); Search and seizure (suppression hearing, traffic stop and search)
2006-CA-002485
TO BE PUBLISHED: AFFIRMING
PANEL: WINE PRESIDING; STUMBO, GUIDUGLI CONCUR
COUNTY: HARDIN
DATE RENDERED: 01/04/2008

CA affirmed Greene’s convictions and 5 year sentence for operating a motor vehicle with an alcohol concentration of or above 0.08 (DUI), fourth offense (KRS 189A.010); and operating a motor vehicle while his license was revoked or suspended for driving under the influence (KRS 189A.090). TC did not err by denying the motion to suppress the Intoxilyzer results. Notwithstanding the inconsistencies in the documentation, the trial court accepted Officer Cox’s testimony that he observed Greene for twenty minutes prior to administering the Intoxilyzer test. The evidence could have supported a contrary conclusion. But CA could not say that the evidence would compel such a finding. The trial court is in the best position to judge the credibility of witnesses and this Court is bound by the trial court’s findings of fact unless there is a clear error or abuse of discretion. Although the documentation was not clear regarding exactly when the observation period began and ended, Officer Cox was certain that he observed Greene for the required twenty minutes. Under the circumstances, CA refused to say that Officer Cox’s testimony was so improbable as to render it unworthy of credence.

Police articulated specific facts supporting a reasonable suspicion justifying a traffic stop. First, Officer Cox received a credible report that Greene was operating his vehicle under the influence of alcohol. Second, Officer Cox observed the vehicle as described in the report. Third and most importantly, Officer Cox confirmed that Greene’s license was suspended. Finally, Officer Cox saw Greene’s truck miss a turn and drive into an empty parking lot. Considering the totality of these circumstances, Officer Cox had a reasonable and articulable suspicion that Greene was operating the vehicle under the influence of alcohol. While the results of a preliminary breath test ("PBT") are clearly inadmissible to prove guilt or for sentencing purposes, CA held that the pass/fail result of a PBT is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress. However that it is imperative the arresting officer demonstrate proficiency in utilizing the PBT as well as evidence the PBT be in proper working order. Greene was not subject to a custodial interrogation when he made his initial statements to Officer Cox, and therefore, Miranda warnings were not required. Although Greene was in custody when later statements were made, the failure to issue Miranda warnings was harmless error. Greene was not entitled to a missing evidence instruction.

Digested by Scott C. Byrd
www.olginandbyrd.com

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