Request By:
Hon. Kendall B. Robinson
Owsley County Attorney
Box 34
Booneville, Kentucky 41314
Opinion
Opinion By: David L. Armstrong, Attorney General; Paul E. Reilender, Assistant Attorney General
This is in answer to your letter of November 14, 1983. In your letter, you present two questions for consideration by this office.
The first question deals with a case being prosecuted by your office which was dismissed by the District Judge because the breathalyzer did not give a printout. You stated further that a law enforcement officer, who was trained and qualified to operate the machine, stated the machine registered .26. The District Judge indicated that without the printout, the charge would have to be dismissed. You ask this office to issue an opinion regarding "whether or not the case should have been dismissed or whether or not the Commonwealth should have been permitted to prosecute the case, even though the machine did not issue a printout. "
This office respectfully declines to render an opinion on whether or not the District Judge was correct in dismissing the action referred to in your letter. However, because this situation may likely arise again, this opinion will review the evidentiary considerations involved when breathalyzer test results are to be used as part of the prosecution's case.
Naturally, the prosecution has the burden of proving a breathalyzer test was correctly administered, and in showing that the operator was properly trained and certified to operate the machine. The prosecution must also show that the machine was in proper working order and that the test was administered according to standard operating procedures. In the case of Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972), the Court held that where the operator of the breathalyzer machine testified concerning the training and operation of the machine, that all the necessary preparational checks were performed and that the machine was functioning satisfactorily, the integrity of the test was sufficiently established, and the results of the test were admissible.
A reading of KRS 189.520 - driving under the influence of intoxicants - reveals that evidence of a breathalyzer or other chemical tests is not a necessary element of a prosecution for drunk driving. KRS 189.520(4) merely provides that if a blood-alcohol test is administered, the amount of alcohol found in the person's blood shall give rise to certain presumptions. KRS 189.520(5) goes on to state that the tests referred to in KRS 189.520(4) shall not be construed as limiting the introduction of other competent evidence bearing upon the question of whether or not a person is under the influence of intoxicants. Thus, it is obvious that a prosecution can be maintained without the results of a breathalyzer test. Many defendants were tried and convicted long before chemical tests were discovered or used. In such cases, evidence tending to show the fact of intoxication came from the arresting officer. If evidence of the breathalyzer test is excluded, there is no reason why the prosecution may not, if it desires, go forward with whatever other proof may be available. People v. Hitch, Cal., 527 P.2d 361 (1974).
With respect to your second question, you ask whose responsibility it is to file juvenile petitions. This question was previously addressed in OAG 75-78 (copy attached). The rationale of OAG 75-78 is applicable to the question you present. OAG 75-78 concluded that there is no section of the juvenile law, KRS Chapter 208, which places a "duty" upon any particular individual or county officer to draft a petition for a complainant. Further, assistance in completing a form petition, or in writing out a petition should be available in the county attorney's office, or the juvenile court office.
We trust the foregoing will satisfactorily answer your inquiries.