Last Updated: Wednesday, June 14, 2006 1:11 PM CDT
Appeals Court reverses OWI ruling by Judge Kennedy
By Heather Schaefer - Daily News staff
The third circuit court of appeals in Wausau has ruled a Forest County judge erred when he determined, without any evidence, that an Illinois man convicted of operating while intoxicated had a blood alcohol concentration of less than .10.
According to court records, Judge Robert A. Kennedy Jr. found Mark Joseph Kovach of Round Lake Beach, Illinois, guilty of operating with a prohibited blood alcohol concentration but proceeded during sentencing to try to save Kovach an additional fine by taking judicial notice that his blood alcohol level was less than .10.
The state had presented evidence during a court trial indicating Kovach’s blood alcohol level was .11.
The court of appeals notes Kennedy made his determination after learning that if Kovach was found to have a blood alcohol concentration of less than .10 he would not have to pay a driver improvement surcharge of $355.
According to court records, Kennedy determined, without any evidence in the record, that Kovach’s breath test had a “tolerance” of .01 and that the defendant’s blood alcohol level could have changed during the hour between his arrest and the test.
On appeal, the state argued there was no evidence to support the court’s rejection of the breath test result. It also argued that the “facts” upon which the court relied to reject the test results were not appropriate for judicial notice.
The court of appeals agreed with the state on both points, noting that Kovach himself did not dispute the accuracy of his breath test. Also, the court of appeals noted, judges are to presume that breath tests are accurate unless provided with evidence to the contrary.
“The only apparent motive for rejecting the test result was to obtain a lesser penalty for Kovach,” the court of appeals wrote.
As the result of the court of appeals decision, Kovach will have the $355 fine imposed.
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