Delayed breathalyzer test may
affect DUI charge against Louisville officer
[Louisville, KY]

Shannon Tangonan, The Courier-Journal
December 12, 2000, Tuesday Met/Metro
Copyright 2000 The Courier-Journal
The Courier-Journal (Louisville, KY.
) December 12, 2000, Tuesday Met/Metro

(LOUISVILLE, Ky. ) -- A Breathalyzer test on an off-duty Louisville police officer charged Saturday with drunken driving was not administered within two hours - which makes it harder to prove drunken driving under a new law.

Records show that Officer Natalie M. ''Shelly'' Cunningham, 32, registered a blood-alcohol level of 0.083 percent at 5:31 a.m. Saturday. She had wrecked her take-home squad car on Poplar Level Road near the Watterson Expressway shortly after 2 a.m. - about 3 1/2 hours before the Breathalyzer test. The legal threshold for drunken driving is 0.08, and she was charged with driving under the influence.

Louisville police said they had to suspend Cunningham's police powers - under department policy - before taking her to jail.

She got to the county jail at 4:42 a.m., said Diane Curtis, a spokeswoman for the Corrections Department.

Under a law that went into effect Oct. 1, a Breathalyzer reading taken after two hours is not admissible under the section of a law that makes it a crime to drive with a blood-alcohol level of 0.08 or higher, said John Wilmes, chief traffic prosecutor with the Jefferson County attorney's office.

The results are admissible under another section - driving under the influence - but ''it becomes a more complicated and a much less provable case, '' Wilmes said.

Wilmes said it is ''not unheard of'' for defendants to be breath-tested after the two-hour limit, but it doesn't occur often.

At the jail, as required by law, there was a 20-minute wait before Cunningham's Breathalyzer test, Curtis said.

The first test resulted in an invalid sample, but that is not unusual, Curtis said. Another 20 minutes passed before Cunningham was re-tested - also required by law, Curtis said - and she was released from jail shortly after 6 a.m.

Detective Bill Keeling, a spokesman for Louisville police, said a traffic officer was the first to arrive at the accident scene. Under department procedure, a ranking officer must be called in situations where an officer is arrested, Keeling said.

Maj. Bud Alpiger, who was the night duty chief Saturday, was summoned and made the arrest at 2:10 a.m., according to the arrest citation. But the department had to process the suspension of Cunningham's police powers before booking her into the jail, Keeling said.

That process includes confiscating her gun and badge, and reading and signing paperwork, he said. He did not know how long the process takes.

''The department has procedures when an officer is arrested and that must be followed.''

According to the arrest slip, Cunningham ''smelled of alcohol'' at the time of her arrest. Cunningham, who lives on Poplar Level Road, was in a marked police car.

An internal investigation is under way, Keeling has said. It's against department regulations for a person who has been drinking to drive a city vehicle, he said.

Cunningham's arraignment is set for 8:30 a.m. tomorrow.

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