Thursday, September 28, 2017

KYSC - ten-year lookback on DUI

Commonwealth v. Jackson and Commonwealth v. Denson, Kentucky Supreme Court, to be published (9/28/17): 
The Supreme Court held that the new ten-year lookback provision of the DUI statute (KRS 189A.010) does apply to even those defendants who have prior convictions more than five years old that had already “expired” under the prior version of the statute.
Re: the argument the Commonwealth was violating contract law by not honoring the five-year lookback periods specified in the defendants’ prior plea deals, the Court held it is not reasonable for a defendant pleading guilty under the agreement to infer the future ramifications of his conviction would cease after five years.  From the language employed in the plea agreement, a reasonable person could not construe the intent of the boilerplate language parroting the statutory range of penalties for a DUI conviction as a promise by the Commonwealth limiting the future effect of the conviction so as to immunize the defendant forever thereafter from future legislative modifications of the lookback period.
The Court also found the amendment to the statute does not violate ex post facto principles (“they are not charged with a crime that was legal when committed but was rendered illegal by the 2016 amendment”) and Boykin does not bar application (“[t]he fact that subsequent legislative measures may unforeseeably alter the consequences and effects of the criminal conviction does not take the plea retrospectively outside the scope of the Boykin requirements”).

Monday, September 18, 2017

KYCOA - Sturgill - Withdrawal of Plea

Jimmie Sturgill v. Commonwealth (two consolidated cases), Kentucky Court of Appeals, to be published (9/15/17):  

Jimmie Sturgill accepted the Commonwealth’s guilty plea offer on two separate but related cases.  At the sentencing hearing for the two cases, defense counsel told the court Sturgill had contacted him a few weeks before and said he wanted to withdraw his pleas.  Defense counsel told the court the motion to withdraw was “absolutely” against his advice.  Defense counsel also told the court that if it granted the motion to withdraw the pleas, he wanted to be removed from Sturgill’s cases.

The court placed Sturgill under oath and asked him a series of questions about why he wanted to withdraw the pleas.  Defense counsel and the Commonwealth then did the same.  During questioning from the Commonwealth, Sturgill said the plea was “against my will” and he had not wanted to do it.  Neither defense counsel nor the court followed up with any questions about that statement.  The court found Sturgill’s testimony to be “incredible” and said Sturgill simply changing his mind or having regrets was not sufficient reason to withdraw the plea.  The court sentenced Sturgill to the agreed-upon sentence.

On appeal, the Court of Appeals vacated and remanded the convictions.  It found Sturgill was denied effective representation at the withdrawal hearing because defense counsel adamantly opposed Sturgill’s attempt to withdraw his pleas.  It said it was troubling that defense counsel did not specifically ask why Sturgill felt he made the pleas against his will.  On remand, Sturgill will be returned to the point in time between when he accepted the guilty plea and before he sought to withdraw it.  Steven Buck represented Mr. Sturgill on appeal.

Monday, September 11, 2017

September 2017 Advocate

Click here to access

  • Public value of public defense: It has been a great 37 years
  • Abandon all discretion ye who enter here: The judicial inferno of bright-line rules
  • Costs, fees, fines and restitution: a practitioners guide
  • Kentucky’s criminal case, crime rate, prison, parole,
  • Expenditure data: an update

Monday, August 21, 2017

KYCOA - Riker - DUI

Commonwealth v. Riker, Court of Appeals, August 18, 2017, affirming, to be published

I recommend that anyone working DUI cases read this opinion in its entirety.

Procedural history: District court denied defendant’s motion to suppress -> circuit court reversed and suppressed on appeal -> Court of Appeals affirmed circuit court order on discretionary review

Defendant Riker was stopped for suspected DUI in Lexington after hitting a parked car.  He submitted to a portable breath test (PBT), and the PBT reflected the presence of alcohol.  Riker then took the intoxilyzer test, and the test result measured over the per se limit of intoxication.

Under KRS 189A.103(7), “[a]fter the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his or her own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer.”

The arresting officer asked Riker if he wished to obtain a blood test at the University of Kentucky Medical Center (UKMC), and Riker indicated he did.  UKMC and Good Samaritan Hospital, a branch of UKMC, are the only options in Lexington for a DUI suspect to obtain blood evidence.  Both places charge a $450 pre-paid fee for the blood test.

Riker told the officer he had over $100 in cash but no credit card.  The officer did not think Riker had enough money for the test, but he took him to the hospital anyway.  When the hospital receptionist told Riker about the $450 fee, Riker told the officer, “No, take me back to jail.”  The officer indicated at the evidentiary hearing that he felt the cost was the reason Riker declined to obtain blood evidence at the hospital.

The Court of Appeals found that the $450 fee UKMC requires as prepayment for an independent blood test hinders for many the fundamental due process right to present a defense.  It found that the fee effectively foreclosed Riker from obtaining potentially exculpatory evidence.  The fee deprived him of the opportunity to challenge the results of the intoxilyzer test in a meaningful fashion, and the deprivation of a statutory right rises to the level of a constitutional violation of his right to due process.  As a result, the Court affirmed the circuit court order suppressing the officer’s unchallengeable PBT/intoxilyzer evidence.

The Court concluded with, “The Commonwealth also argues that the establishment of a mandatory fee or fee range for independent blood tests must come from the Legislature.  We agree with Riker that the argument misses the point.  It was the Legislature itself that afforded him – in mandatory language – the right to a blood test.”

John Tackett was Riker’s attorney.

Contributed by Steven Buck