CRIMINAL – DUI preliminary breath test admissibility, Daubert to be reviewed on remand: STUMP V. COM. (COA 1/16/2009)

Stump v. Commonwealth
2007-CA-001762
 01/16/2009
2009 WL 102954
Opinion by Judge Moore; Judge Caperton and Senior Judge Guidugli concurred.

On discretionary review, the Court vacated and remanded an opinion of the circuit court affirming a district court denial of appellant’s motion to present the result of a preliminary breath test as exculpatory evidence.

The Court held that both the district and circuit court erred in concluding that KRS 189A.104(2) specifically prohibited the introduction of such evidence at trial and that the statute was unconstitutional. KRS 189A.104 was inapplicable because appellant did not refuse to submit to the appropriate breath test nor was he subject to any enhancement of penalties. The Court noted that on remand the district court must determine whether the result of the test was relevant and whether the result was sufficiently reliable pursuant to Daubert.