In the Case of Commonwealth V

In the case of Commonwealth v. Howlett, the defendant had been accused of driving under the influence of alcohol after testing above the legal limit on a breath test machine made by Smith and Wesson. The defendant testified that he "burped" within the 20-minute required observation period prior to taking the test, which would invalidate the test results. The judge, on his own motion, took judicial notice that the particular breath test machine required a 20-minute wait prior to testing and for that reason determined that the defendant should be found not guilty because the breath test result was invalid. The judge knew about the 20-minute period because the judge had been a prosecutor and was familiar personally with that particular Smith and Wesson breath test system. The prosecution appealed the verdict in order to change the judge's decision on judicial notice for future cases heard by that judge. When the judge has taken judicial notice based on judge's personal knowledge that is not universally known in the jurisdiction, has judicial notice properly been taken? Include discussion of when it is appropriate for a judge to take judicial notice of adjudicative facts.