dissenting.
The majority opinion holds that “an In-toxilyzer test result is admissible in a prosecution pursuant to KRS 189A.010(l)(a) and/or (e) where the calibration unit and the subject testing component have been shown to be in proper working order on the testing date, despite the fact that the calibration component may have been out of tolerance on other dates.” Op. at 109-10.1 am in agreement with this proposition and it comports with our holding in Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972):
It is generally held that the prosecution has the burden of proving tests such as the breathalyzer were correctly administered. As a minimum this proof must show that the operator was properly trained and certified to operate the machine and that the machine was in proper working order and that the test was administered according to standard operating procedures.
Id. at 900 (emphasis added).
However, the Commonwealth has stipulated in this case that its only expert witness with respect to this issue tested the machine and reported “that the calibration component which supplied the sample for the calibration tests referenced above, including the calibration test for this defendant, was not in proper working order.” (Emphasis added.) Thus, the district judge properly suppressed the results of this particular Intoxilyzer test.
LAMBERT, C.J., and STUMBO, J., join this dissenting opinion.