RENDERED: MARCH 19, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-0262-DG
JONATHON TAYLOR APPELLANT
ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT v. COURT HONORABLE KEN M. HOWARD, JUDGE ACTION NO. 19-XX-00007
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
GOODWINE, JUDGE: Jonathan Taylor (“Taylor”) appeals from the Hardin
Circuit Court order affirming the Hardin District Court’s order denying Taylor’s
motion to suppress the results of his breathalyzer test. After careful review, we
reverse and remand.
On December 16, 2018, Trooper Kyle Lashley stopped Taylor on
suspicion that he was driving under the influence. According to the citation, Trooper Lashley observed Taylor swerving across the center line of the road and
became concerned for the safety of other motorists. The trooper could smell the
odor of an alcoholic beverage, and Taylor admitted to drinking three “tall boy”
beers and that he would likely blow over the legal limit. Taylor failed field
sobriety tests. Trooper Lashley arrested Taylor and transported him to the Hardin
County Detention Center. At the jail, the trooper administered an Intoxilyzer test.
Taylor was charged with, inter alia, operating a motor vehicle with an
alcohol concentration of above 0.08, second offense.1 He moved to suppress the
results of his breathalyzer test, arguing the breath test results were invalid because
he spit chewing tobacco from his mouth during the twenty-minute observation
period. The district court held a hearing on the matter, during which Trooper
Lashley and Taylor testified.
Trooper Lashley testified that, upon arrest, he transported Taylor to
the jail and asked him to submit to a breath test. The trooper took Taylor to the
Intoxilyzer room, turned on the Intoxilyzer machine, and recorded an observation
time. He testified Taylor stood next to him. The trooper stated he usually sits
down with a DUI suspect in the Intoxilyzer room and begins working on the
citation during the observation period. Trooper Lashley recalled reading the
1 Kentucky Revised Statutes (KRS) 189A.010(5)(b).
-2- implied consent form to Taylor that evening and observed Taylor for
approximately thirty-one minutes before administering the breath test.
When the Commonwealth asked whether Trooper Lashley observed
Taylor introduce anything into his oral or nasal cavity during the observation
period, the trooper responded that he did not recall. If he had observed Taylor
doing so, he testified he would have restarted the observation period. Trooper
Lashley did not remember whether he restarted the observation period in this case.
Trooper Lashley reviewed video surveillance footage of the
encounter. He testified the footage was hard to see, and it lacked audio. Based on
his review of the video footage, Trooper Lashley could not say that Taylor did not
spit something from his mouth during the observation period.
The trooper testified he believed he performed the Intoxilyzer test
according to the manufacturer’s instructions, but he did not recall whether he
restarted the observation period. Trooper Lashley further testified he did not recall
whether Taylor spit something from his mouth during the observation period or
whether he checked Taylor’s mouth for foreign substances before beginning the
observation period.
Taylor testified that, during the observation period, he asked Trooper
Lashley for a trash can, so he could spit out his chewing tobacco. Taylor stated he
did not have tobacco in his mouth when he blew into the machine, but there could
-3- have been debris in his mouth. Taylor contended the surveillance footage confirms
his version of events.
The Commonwealth stipulated the surveillance footage shows that,
after submitting to the test, Taylor walked to a table with his property in a ziplock
bag and retrieved something from the bag. Taylor testified that he retrieved
chewing tobacco from the bag and put some in his mouth.
After taking the matter under submission to review the jail
surveillance video, the district court denied Taylor’s motion. The court found that
even if it were to believe Taylor removed chewing tobacco from his mouth during
the 20-minute observation period, “it is clear that tobacco does not contain alcohol
and the only possible effect would be if there were a recent swig of alcohol that
were absorbed into the tobacco and held in the mouth like a sponge holding the
liquid.” Record (R.) at 55. The district court further opined that if Taylor’s
chewing tobacco absorbed alcohol, then “the Intoxilyzer reading should be a
residual mouth alcohol and not a .214. . . . [T]here is no corroborating testimony
that there would have been any recently absorbed alcohol to still be in the tobacco
to affect the test.” Id. Taylor entered a conditional guilty plea to the charge of
DUI second offense, reserving the right to appeal any of the district court’s pretrial
rulings.
-4- Taylor then appealed to the circuit court, arguing the Intoxilyzer
results should have been excluded because the trooper did not observe Taylor for a
full twenty minutes after he removed smokeless tobacco from his mouth. The
circuit court affirmed the district court’s order denying Taylor’s motion to
suppress. The court found, “[w]hether or not Taylor was ‘dipping smokeless
tobacco during the 20-minute observation period’ is a factual dispute in this case,”
and “the [district] court [was] in the best position to judge the credibility of the
witnesses and observe the video.” R. at 29.
Taylor sought discretionary review, which this Court granted. On
appeal, Taylor argues the results of the breathalyzer test should have been
suppressed because: (1) the trooper failed to follow proper procedure in
administering the breathalyzer test; (2) the observation period was shorter than
twenty minutes; and (3) the presence of smokeless tobacco or another foreign
substance in a subject’s mouth invalidates Intoxilyzer results.
We apply the following standard in reviewing the denial of a motion
to suppress:
[W]e consider the trial court’s findings of fact “conclusive” if they are “supported by substantial evidence.” RCr[2] 9.78. Using those facts [if supported], the reviewing court then conducts a de novo review of the trial court’s application of law to those facts to
2 Kentucky Rules of Criminal Procedure.
-5- determine whether the decision is correct as a matter of law.
King v. Commonwealth, 374 S.W.3d 281, 286 (Ky. 2012) (internal quotation marks
and citation omitted); see also Simpson v. Commonwealth, 474 S.W.3d 544, 546-
47 (Ky. 2015) (holding that the standard of review of a trial court’s decision
regarding a motion to suppress remains the same, even after RCr 9.78 was deleted
and superseded by RCr 8.27).
KRS 189A.103(4) provides: “A breath test shall consist of a test
which is performed in accordance with the manufacturer’s instructions for the use
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RENDERED: MARCH 19, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-0262-DG
JONATHON TAYLOR APPELLANT
ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT v. COURT HONORABLE KEN M. HOWARD, JUDGE ACTION NO. 19-XX-00007
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND MCNEILL, JUDGES.
GOODWINE, JUDGE: Jonathan Taylor (“Taylor”) appeals from the Hardin
Circuit Court order affirming the Hardin District Court’s order denying Taylor’s
motion to suppress the results of his breathalyzer test. After careful review, we
reverse and remand.
On December 16, 2018, Trooper Kyle Lashley stopped Taylor on
suspicion that he was driving under the influence. According to the citation, Trooper Lashley observed Taylor swerving across the center line of the road and
became concerned for the safety of other motorists. The trooper could smell the
odor of an alcoholic beverage, and Taylor admitted to drinking three “tall boy”
beers and that he would likely blow over the legal limit. Taylor failed field
sobriety tests. Trooper Lashley arrested Taylor and transported him to the Hardin
County Detention Center. At the jail, the trooper administered an Intoxilyzer test.
Taylor was charged with, inter alia, operating a motor vehicle with an
alcohol concentration of above 0.08, second offense.1 He moved to suppress the
results of his breathalyzer test, arguing the breath test results were invalid because
he spit chewing tobacco from his mouth during the twenty-minute observation
period. The district court held a hearing on the matter, during which Trooper
Lashley and Taylor testified.
Trooper Lashley testified that, upon arrest, he transported Taylor to
the jail and asked him to submit to a breath test. The trooper took Taylor to the
Intoxilyzer room, turned on the Intoxilyzer machine, and recorded an observation
time. He testified Taylor stood next to him. The trooper stated he usually sits
down with a DUI suspect in the Intoxilyzer room and begins working on the
citation during the observation period. Trooper Lashley recalled reading the
1 Kentucky Revised Statutes (KRS) 189A.010(5)(b).
-2- implied consent form to Taylor that evening and observed Taylor for
approximately thirty-one minutes before administering the breath test.
When the Commonwealth asked whether Trooper Lashley observed
Taylor introduce anything into his oral or nasal cavity during the observation
period, the trooper responded that he did not recall. If he had observed Taylor
doing so, he testified he would have restarted the observation period. Trooper
Lashley did not remember whether he restarted the observation period in this case.
Trooper Lashley reviewed video surveillance footage of the
encounter. He testified the footage was hard to see, and it lacked audio. Based on
his review of the video footage, Trooper Lashley could not say that Taylor did not
spit something from his mouth during the observation period.
The trooper testified he believed he performed the Intoxilyzer test
according to the manufacturer’s instructions, but he did not recall whether he
restarted the observation period. Trooper Lashley further testified he did not recall
whether Taylor spit something from his mouth during the observation period or
whether he checked Taylor’s mouth for foreign substances before beginning the
observation period.
Taylor testified that, during the observation period, he asked Trooper
Lashley for a trash can, so he could spit out his chewing tobacco. Taylor stated he
did not have tobacco in his mouth when he blew into the machine, but there could
-3- have been debris in his mouth. Taylor contended the surveillance footage confirms
his version of events.
The Commonwealth stipulated the surveillance footage shows that,
after submitting to the test, Taylor walked to a table with his property in a ziplock
bag and retrieved something from the bag. Taylor testified that he retrieved
chewing tobacco from the bag and put some in his mouth.
After taking the matter under submission to review the jail
surveillance video, the district court denied Taylor’s motion. The court found that
even if it were to believe Taylor removed chewing tobacco from his mouth during
the 20-minute observation period, “it is clear that tobacco does not contain alcohol
and the only possible effect would be if there were a recent swig of alcohol that
were absorbed into the tobacco and held in the mouth like a sponge holding the
liquid.” Record (R.) at 55. The district court further opined that if Taylor’s
chewing tobacco absorbed alcohol, then “the Intoxilyzer reading should be a
residual mouth alcohol and not a .214. . . . [T]here is no corroborating testimony
that there would have been any recently absorbed alcohol to still be in the tobacco
to affect the test.” Id. Taylor entered a conditional guilty plea to the charge of
DUI second offense, reserving the right to appeal any of the district court’s pretrial
rulings.
-4- Taylor then appealed to the circuit court, arguing the Intoxilyzer
results should have been excluded because the trooper did not observe Taylor for a
full twenty minutes after he removed smokeless tobacco from his mouth. The
circuit court affirmed the district court’s order denying Taylor’s motion to
suppress. The court found, “[w]hether or not Taylor was ‘dipping smokeless
tobacco during the 20-minute observation period’ is a factual dispute in this case,”
and “the [district] court [was] in the best position to judge the credibility of the
witnesses and observe the video.” R. at 29.
Taylor sought discretionary review, which this Court granted. On
appeal, Taylor argues the results of the breathalyzer test should have been
suppressed because: (1) the trooper failed to follow proper procedure in
administering the breathalyzer test; (2) the observation period was shorter than
twenty minutes; and (3) the presence of smokeless tobacco or another foreign
substance in a subject’s mouth invalidates Intoxilyzer results.
We apply the following standard in reviewing the denial of a motion
to suppress:
[W]e consider the trial court’s findings of fact “conclusive” if they are “supported by substantial evidence.” RCr[2] 9.78. Using those facts [if supported], the reviewing court then conducts a de novo review of the trial court’s application of law to those facts to
2 Kentucky Rules of Criminal Procedure.
-5- determine whether the decision is correct as a matter of law.
King v. Commonwealth, 374 S.W.3d 281, 286 (Ky. 2012) (internal quotation marks
and citation omitted); see also Simpson v. Commonwealth, 474 S.W.3d 544, 546-
47 (Ky. 2015) (holding that the standard of review of a trial court’s decision
regarding a motion to suppress remains the same, even after RCr 9.78 was deleted
and superseded by RCr 8.27).
KRS 189A.103(4) provides: “A breath test shall consist of a test
which is performed in accordance with the manufacturer’s instructions for the use
of the instrument.” Furthermore, the Supreme Court of Kentucky requires the
Commonwealth to meet five foundation requirements for the results of a breath
alcohol test to be admissible:
1) That the machine was properly checked and in proper working order at the time of conducting the test.
2) That the chemicals employed were of the correct kind and compounded in the proper proportions.
3) That the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test.
4) That the test be given by an operator who is properly trained and certified to operate the machine.
5) That the test was administered according to standard operating procedures.
-6- Commonwealth v. Roberts, 122 S.W.3d 524, 526 (Ky. 2003). The Supreme Court
of Kentucky determined the distinction between “manufacturer’s instructions” and
“standard operating procedures” is “a distinction without a difference.” Id. at 527.
Here, the Commonwealth failed to establish “[t]hat the test was
administered according to standard operating procedures.” Id.3 The Kentucky
Breath Test Operational Procedures outline a ten-step process for administering a
breath test. The first step is to put the Intoxilyzer machine in standby mode. The
second step reads as follows:
Check for MOUTH SUBSTANCES and read the following:
During the next 20 minutes you are not allowed to eat, drink, smoke or place anything in your mouth or nasal passages. Do you have anything in your mouth at this time?
The third step is to record the observation time and begin the twenty-minute
observation period. The fourth step involves checking the machine to make sure it
is functioning properly. The fifth step requires the person administering the test to
read the implied consent warning. Sixth, the subject must be allowed to attempt to
contact an attorney. Seventh, the person administering the test must ask the subject
3 Another panel of this Court also used the Roberts’ rationale to affirm a circuit court’s reversal of a district court’s order denying a defendant’s motion to suppress the results of his breathalyzer test and remanded for further proceedings. See Commonwealth v. Mefford, No. 2016-CA- 000840-DG, 2017 WL 4863183 (Ky. App. Oct. 27, 2017).
-7- to submit to the test. The test is then administered, and the subject must be offered
an opportunity to have his own test performed.
Here, the Commonwealth failed to establish that Trooper Lashley
followed the second step of the procedure. Trooper Lashley did not recall whether
he checked Taylor’s mouth, told him not to put anything in his mouth, or asked
whether there was anything in his mouth. This is telling because Trooper Lashley
testified about turning on the machine, making sure the machine was functioning
properly, and reading Taylor the implied consent warning. Furthermore, the
citation establishes Taylor attempted to contact an attorney but was unable to do
so, consented to the breath test, and decided not to have his own test.
It is important to note that had Trooper Lashley followed the testing
guidelines, Taylor would have emptied his mouth prior to the start of the
observation period rather than after it began. Taylor testified the tobacco was in
his mouth when he entered the room, and he asked the trooper if he could put
another “dip” in his mouth after the test was conducted. As such, the evidence
shows Trooper Lashley failed to follow this key step of the standard operating
procedures. Therefore, the Commonwealth failed to establish that it met the
foundation requirements necessary to admit the breath test results, so we must
reverse the circuit court’s order and remand with instructions that the circuit court
reverse the district court’s order denying Taylor’s motion to suppress. Because the
-8- foundation requirements were not met, we need not address Taylor’s arguments
regarding whether the observation period was at least twenty minutes or whether
the presence of smokeless tobacco or another foreign substance in a subject’s
mouth invalidates Intoxilyzer results.
For the foregoing reasons, we reverse the circuit court order and
remand with instructions to reverse the order of the Hardin District Court denying
Taylor’s motion to suppress.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Adam Cart Daniel Cameron Elizabethtown, Kentucky Attorney General of Kentucky
Philip W. Moore Special Assistant Attorney General Assistant Hardin County Attorney Elizabethtown, Kentucky
-9-