1. When a judge has taken judicial notice of a fact:

a. the opposing counsel can still introduce evidence that tends to disprove the fact judicially noticed.

b. the judge will generally prevent any party from introducing evidence that tends to dispute the fact judicially noticed.

c. the jury must accept as fact any fact that has been the proper subject of judicial notice and cannot decide the case in a manner that shows that it disregarded the fact noticed

d. the fact is taken as established even when an appellate court later disagrees with the propriety of taking judicial notice.

2. As a part of the process involved in taking judicial notice:

a.

the judge takes judicial notice of facts without giving the parties an opportunity to be heard.

b. as a general rule, once a fact is judicially noticed, the parties will still have an opportunity to dispute this fact.

c. the court of its own volition may not take judicial notice of any fact.

d. when the judge makes the decision regarding a fact that he or she has judicially noticed, he or she states in open court that such fact is noticed.

3. In Commonwealth v. Howlett, a driving-while-intoxicated prosecution, the Commonwealth attorney introduced evidence that the defendant underwent a breath test. The defendant admitted to a burp during the resting period prior to the test that should have resulted in the waiting period resetting and starting over. The trial judge stated that he would take judicial notice that the test had not met the manufacturers stated standards for accurate use and found the defendant not guilty. On the facts of this case, the judge should:

a. not have taken judicial notice that the police did not follow the manufacturers directions for using the breath test because this knowledge was not a proper subject for judicial notice.

b. only have taken judicial notice after having listened to evidence from the manufacturer of the breath test.

c. have taken judicial notice as he did, and there is nothing wrong with the judge noticing facts of which he personally has knowledge.

d. have taken judicial notice because this information is in a category that is well known to the public generally.

4. In Commonwealth v. Howlett, a case involving the use of a machine to analyze blood alcohol content from breath, the Kentucky trial judge took judicial notice of the fact that where a subject being tested burped, a 20-minute period had to elapse prior to obtaining a valid test. This fact was known to the judge because he had a prior job as a prosecutor. Under the circumstances of such a case,

a. the reviewing court held that it was appropriate for a judge to take judicial notice of facts that were personally known to the judge.

b.

upon his own motion, and without allowing any rebuttal, the trial judge could properly take judicial notice that the manufacturer of the device required a 20-minute wait prior to testing following a burp by a subject who was to be tested.

c. the reviewing court held that even though the manufacturer might require that a 20-minute wait as appropriate under the circumstances and that the judge had knowledge of how the machine operated, such knowledge was not common knowledge in the judicial circuit and was not properly subject to judicial notice.

d. a judge may not take judicial notice because a scientific test is a very important part of a driving-while-intoxicated case.

5. In City of Clovis v. Gamez, the New Mexico defendant was charged with driving under a revoked license. The officer testified concerning the city where he patrolled and indicated street intersections but failed to state that the street intersections were located within the city. Venue and jurisdiction are necessary parts of a criminal prosecution. The trial judge took judicial notice that the officer stopped the defendant in the City of Clovis. Under the facts of this case:

a. the judge should not have taken judicial notice of the location of the streets within the City of Clovis because the elements of a prosecution must be proved.

b. the trial judge should not have taken judicial notice of the location of the streets because not everyone would have this knowledge.

c. judicial notice was proper because the location of the streets is common knowledge in the community where the court was located.

d. judicial notice was properly taken because judicial notice is up to the discretion of the judge hearing a case.