King v. CommonwealthKing v. Commonwealth
- Reporters:
- , ,
- Before:
- Schroder
This is an appeal of a conviction for a per se DUI, wherein the defendant alleges error in admitting a BA result of .10 where the intoxilyzer machine in question has a margin of error of plus/minus .005.
The appellant, Kelly W. King, was stopped and arrested on May 23, 1992, on the charge of DUI. Shortly thereafter, appellant was tested on an Intoxilyzer 5000 which gave a reading of .100. The uncontroverted evidence disclosed the machine’s margin of error to be within plus/minus .005. The .100 reading was admitted into evidence, and the appellant was subsequently convicted (September 23, 1992) of violating
On appeal, appellant alleges his right to due process of law was violated when his motion for a directed verdict of acquittal was overruled, given the fact that the intoxilyzer test results were within the machine’s margin of error. Simply stated, is an Intoxilyzer 5000 reading of .100 sufficient, probative evidence to prove beyond a reasonable doubt that a person has an “alcohol concentration in his blood or breath of 0.10 or more” as required by
In the case sub judice, the .100 reading was sufficient evidence of the element of the *903crime charged. In this imperfect world, any machine, including intoxilyzers, are going to have a margin of error. That is a given. The question then becomes how much of a margin of error will be tolerated before the reading is no longer credible or of any probative value. It is our opinion that the margin of error should be considered to determine the probative value of the intoxilyzer reading. The issue of admissibility based on the reliability of this evidence is an issue for the judge. In the case sub judice, the trial judge decided the reading was accurate enough to be of probative value and admitted the reading into evidence. We concur. The probative value, the accuracy of the .100 reading where there is a given margin of error of .005, is sufficient where the statute requires an alcohol concentration of. .10 in order to find guilt. The .005 margin of error leaves the possibility of the absolute true reading to fall within the range of .095 to .105. That is a possibility of five thousandths above or below a true reading. Where the legislature speaks in terms of an alcohol concentration of .10, they merely went into the hundreds.
Is the reading accurate or reliable enough to find that element of the crime beyond a reasonable doubt? We don’t define the term reasonable doubt to the jury (see Commonwealth v. Callahan, Ky., 675 S.W.2d 391 (1984); RCr 9.56), nor do we give percentages of guilt to reach reasonable doubt. However, we do know that “beyond a reasonable doubt” does not mean beyond “any” doubt. To exclude a reading with a possible error of five thousandths would be requiring the Commonwealth to prove in the realm of beyond “any” doubt. That is more than required in Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972) for admissibility and more than Perry v. Commonwealth, ex rel. Kessinger, Ky., 652 S.W.2d 655 (1983).
For the foregoing reasons, we affirm the decision of the Wolfe Circuit Court.
WILHOIT, J., concurs.
GARDNER, J., concurs in result only.