DUI Appeal of the Day (DAD) - Judgment of acquittal based on the margin of error

In Kansas v. Finch, --- P.3d ----, 2011 WL 43926 (Kan.) the defendant was arrested for DUI and took a breath test, the result of which was 0.08. The trial proceeded solely on the charge of driving with a BrAC of 0.08 or greater. At trial, the defense crossed the breath operator about the margin of error (for those with interest, the below opinion contains a great portion of the cross, which revealed a recalcitrant cop who was unwilling to admit that the machine was less than 100% perfect). When the state rested, the defense moved for judgment of acquittal as a matter of law (this was a jury trial). The trial court, commenting that he found the breath cop less than credible on the margin of error, and also noting that he was aware of testimony from other trials where the margin of error was admitted to be =/- 0.007, granted the motion.





On appeal, the higher court found the trial courts ruling improper. Under the standards applicable, once the state puts in a result of 0.08 or more, then they have met their initial burden of proof (prima facie in a light most favorable to the State). In reversing though, the appeals court rejected the state's attempt to bar introduction of any evidence of a margin of error or other errors in the measurement of the breath (commenting that the state is trying to "overegg the pudding"). In fact, the court held that the margin of error, if proven, should be considered by the trier of fact in arriving at a verdict at the close of all evidence. The court suggested that the jury could accept or reject the margin of error evidence.







Editors notes: there is controversy over whether a margin of error can defeat a per se count as a matter of law. Further, the appeals court advised that it is improper for a trial court to take notice of testimony dehors the record.



Counsel should always be prepared to prove up a margin of error independent of the breath operators testimony, such as manufacturer's records, government studies, or experts.



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