Commonwealth v. Parrish

NOBLE, J.,

CONCURRING SEPARATELY:

In this case, the circuit court reversed the district court, in part, by finding that the police acted in bad faith in not recording the results of the preliminary breath test. But the circuit court was sitting as an appellate court and could not properly make factual findings contrary to' those made by the district court. As the Court notes, the circuit court, sitting as the first appellate court, made a specific finding that he believed that the officer intentionally did not record the evidence when he saw that the blood alcohol reading was less than .08, and this was the basis for his finding that the officer was not acting in good faith. Appellate courts are not independent finders of fact. If the only basis for reversing the district court was the circuit court’s finding that the officer acted intentionally to avoid recording a low blood alcohol level, then that is an independent fact found by the circuit court, which it cannot do in an appellate capacity. While circuit courts do not sit as appellate courts all that frequently, when they do, they must recall that théy are not finders of fact.