Travis Lock v. Commonwealth of Kentucky, 2020 CA 000777

Background

On Nov. 4, 2015 Trooper Adkison stopped Travis Lock after radar showed a vehicle at 91 mph and a burned-out taillight; Trooper smelled alcohol, conducted field sobriety tests, and arrested Lock for DUI and speeding.
At the jail Trooper Adkison gave implied-consent warnings, performed a 20-minute observation period (audio-recorded), then used an additional ~6 minutes for paperwork before administering an Intoxilyzer 5000 breath test.
Adkison admitted he did not read the second instruction on the Intoxilyzer operational sheet (the warning about not placing anything in mouth or nasal passages during the 20-minute observation).
The observation-period audio captured throat-clearing/grunting; Lock claimed a sinus infection and recent use of a nasal decongestant (Vicks Sinex) that produced drainage.
The district court denied suppression motions and a jury convicted Lock of DUI (BAC ≥ .08) and speeding; the circuit court affirmed, finding statutory violation but no prejudice.
On discretionary review the Court of Appeals held the Commonwealth failed the breath-test foundation requirement (operator did not follow the manufacturer’s instructions), reversed in part, vacated the conviction, and remanded for a new trial.

Issues

Issue	Lock's Argument	Commonwealth's Argument	Held
Admissibility of breath-test result (failure to follow manufacturer’s operational step 2)	Trooper didn’t read the Intoxilyzer step warning about no food/drink/objects in mouth/nasal passages; foundation for test not met, so results inadmissible	Breath test otherwise administered per manufacturer; any deviation was harmless or minor	Court: Foundation requirement not met; admitting breath result was error. Conviction vacated and remanded for new trial.
Observation-period length (26 minutes vs. statutory/required 20 minutes)	Excess observation time and throat-clearing could have affected result	Officer observed continuously and complied; any extra paperwork time was harmless	Court declined to decide because breath-test foundation failure was dispositive; left issue for remand if retried.
Admissibility of 911 call (Confrontation Clause / hearsay)	Admission violated Confrontation Clause because caller didn’t testify	911 call was nontestimonial and admissible as present-sense impression under KRE 803(1)	Court: 911 call nontestimonial and admissible under present-sense-impression hearsay exception.
Audio recording containing Lock’s statement about a prior DUI (KRE 404(b))	Recording introduced uncharged bad-act evidence (propensity) without proper 404(c) notice; prejudicial	Recording relevant to impairment and was disclosed earlier in suppression hearing	Court: Commonwealth failed to show at trial a proper non-propensity purpose for the prior-arrest statements; remand the matter to district court to determine admissibility or require redaction.

Key Cases Cited

Stewart v. Commonwealth, 44 S.W.3d 376 (Ky. App. 2000) (standard of review for suppression rulings)
Adcock v. Commonwealth, 967 S.W.2d 6 (Ky. 1998) (review standards cited)
Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 2003) (five foundation requirements for admissibility of breath-test results)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial statements absent opportunity for cross-examination)
Davis v. Washington, 547 U.S. 813 (2006) (distinguishing testimonial vs nontestimonial statements in emergency 911 context)
Heard v. Commonwealth, 217 S.W.3d 240 (Ky. 2007) (applying Davis to state cases)
McDonald v. Commonwealth, 436 S.W.3d 534 (Ky. App. 2013) (911-call admissibility discussion)
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000) (standard for review of evidentiary rulings—abuse of discretion)
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (abuse-of-discretion test)
United States v. Robinson, 389 F.3d 582 (6th Cir. 2004) (review of Sixth Amendment issues)
United States v. Gibson, 409 F.3d 325 (6th Cir. 2005) (related Sixth Amendment review authority)
Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011) (limits on use of other-crimes/bad-acts evidence under KRE 404(b))
Stokes v. Commonwealth, 275 S.W.3d 185 (Ky. 2008) (learned-treatise rule and reliability requirement under KRE 803(18))
Davenport v. Commonwealth, 177 S.W.3d 763 (Ky. 2005) (limits on cross-examination regarding witness bias)
Matthews v. Commonwealth, 163 S.W.3d 11 (Ky. 2005) (mixed question of fact and law on 404(b) admissibility)
Underhill v. Stephenson, 756 S.W.2d 459 (Ky. 1988) (purpose of avowal and preservation of record)