Commonwealth v. Howlett
2010 Ky. LEXIS 292
| Ky. | 2010Background
- Commonwealth seeks certification on limits of judicial notice under KRE 201 after bench trial where judge sua sponte took judicial notice of a burp affecting the breath-test observation period.
- Defendant Howlett was stopped for speeding; breath test showed .150; bench trial held over two days with contested observation period.
- Howlett testified he burped during the observation period; judge later sua sponte ruled based on personal knowledge that burp required restarting observation and found Howlett not guilty on that basis.
- Judge cited Smith and Wesson reference (breathalyzer manual misattributed) and relied on personal experience as a former DUI prosecutor.
- Historical Kentucky law before KRE 201 held that private information or personal knowledge cannot be used as evidence or relied upon for judicial notice.
- Court certifies that judicial notice cannot be based on the judge’s personal knowledge under KRE 201 and that the sua sponte notice and dismissal were improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether KRE 201 allows judicial notice based on a judge’s personal knowledge. | Commonwealth argues the judge can rely on personal knowledge. | Howlett argues personal knowledge is not admissible evidence. | Judicial notice cannot be based on personal knowledge under KRE 201. |
| Whether taking judicial notice sua sponte and dismissing the case in one motion was proper. | Commonwealth asserts need for party input. | Howlett contends the judge’s action reflects proper notice. | Improper to sua sponte take notice and dismiss without timely opportunity to be heard. |
| Whether KRE 201's silence on peculiarly known facts limits the court's use of judicial knowledge. | Commonwealth relies on pre-Rules case law prohibiting judicial knowledge. | Howlett relies on judge’s expertise and source adherence. | Court adheres to prior law; personal knowledge cannot replace admissible evidence. |
| Whether procedural safeguards (opportunity to be heard) were met for judicial notice. | Commonwealth emphasizes need for timely hearing. | Howlett contends adequate notice existed. | Procedural flaw: no timely opportunity to be heard. |
| Whether the decision to certify the law is appropriate given KRE 201’s scope. | Commonwealth seeks clarification for bench and bar. | Howlett argues restraint of personal-knowledge notices. | Court certifies the law that personal-knowledge judicial notice is improper under KRE 201. |
Key Cases Cited
- Gray v. Commonwealth, 264 S.W.2d 69 (Ky.1954) (judicial notice limited to adjudicative facts; private knowledge not evidence)
- Shapleigh v. Mier, 299 U.S. 468 (U.S. Supreme Court 1937) (distinction between judicial notice and judicial knowledge)
- U.S. v. Berber-Tinoco, 510 F.3d 1083 (9th Cir.2007) (resident judge’s background may inform assessment but cannot testify or interject facts)
- Eldridge v. Commonwealth, 68 S.W.3d 388 (Ky. App.2001) (burp/airway contamination can justify re-administering observation period)