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Phillips v. State

The trial court did not violate the defendant's rights to compulsory process in requiring him to proceed to trial without the witnesses or documents he sought from the Kentucky company that manufactured the Intoxilyzer 5000 that registered his blood alcohol level in excess of the legal limit following his traffic stop.

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Following a bench trial, Brett Robert Phillips was convicted of driving under the influence with an unlawful blood alcohol level “DUI per se”.1 He appeals, arguing that the trial court erred by requiring him to proceed to trial without material and necessary evidence. We affirm, for the reasons that follow.

Viewed in favor of the verdict,2 on March 3, 2006, a state trooper observed Phillips’s car stopped at a red light without the headlights on. When the light turned green, Phillips accelerated rapidly, causing his tires to spin and the back of his vehicle to zigzag. The officer initiated a traffic stop, and when he approached Phillips, he noticed that Phillips’s eyes were red and glassy, and the officer noted the odor of alcohol emanating from Phillips’s vehicle. Phillips initially denied drinking alcohol, but then admitted that he had consumed a beer. The officer administered field sobriety tests, and Phillips exhibited all six clues indicative of alcohol intoxication during the horizontal gaze nystagmas test, two of eight possible clues during the walk-and-turn test, and two of four clues during the one-legged stand test. A road-side preliminary test of Phillips’s breath registered positive for alcohol. The officer placed Phillips under arrest, and Phillips subsequently registered blood alcohol levels of 0.138 and 0.127 in two consecutive consensual breath tests administered on an Intoxilyzer 5000.

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