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”).

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 

KY COA June 22 - Cozzolino - Directed Verdict in DUI case

THOMAS GEORGE COZZOLINO V. COMMONWEALTH, 2011-CA-000656-DG,

To-be-published, June 22, 2012,

Vacating the Jefferson Circuit Court’s reversal of a directed verdict granted by the Jefferson District Court. 

            Cozzolino was tried for the offense of DUI in the Jefferson District Court.  He made a mid-trial objection to evidence obtained by police following a Miranda violation.  The District Court held a suppression hearing, and suppressed much of the prosecution’s evidence.  The prosecution continued with its case-in-chief, after which, the District Court granted a directed verdict of acquittal for Cozzolino.  The Commonwealth appealed the acquittal to the Jefferson Circuit Court, which reversed the District Court’s judgment that the remaining evidence presented by the prosecutor at trial was insufficient to meet the standard for a directed verdict.  The Circuit Court remanded the case to the District Court for another trial, reasoning that double jeopardy did not apply because the first trial had been prematurely concluded as a result of the defendant’s own motion.

            The Court of Appeals vacated the Circuit Court’s decision.  Quoting from Derry v. Commonwealth, 274 S.W.3d 439, 444 (Ky. 2008), and United States v. Scott, 437 U.S. 82, 91 (1978), the Court held the granting of a directed verdict motion in favor of a defendant in a criminal case terminates the prosecution, and a second trial following an appeal by the Commonwealth would violated the Double Jeopardy Clause.  “The district court weighed the evidence presented by the Commonwealth and found it insufficient to convict.  The dismissal was not based on a mistrial; it was related to Cozzolino’s factual guilt or innocence.  …  [W]e find that Double Jeopardy prevents Cozzolino from being tried again for DUI.”

Contributed by Tom Ransdell

Featured Case - Brewer - DUI 2nd enhancement

Commonwealth v. Brewer, 09-CA-873-DG (unpublished):  While unpublished, this is still an important case.  In this Commonwealth appeal, the Court of Appeals affirmed the circuit court’s vacating of a district court conditional plea to DUI 2d because under Commonwealth v. Beard, 275 S.W.3d 205 (Ky.App. 2008), a person cannot be convicted of DUI 2nd if he was not convicted of the first DUI before committing the second DUI.

Citing Unpublished Opinions - CR 76.28(4)(c)  Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003 may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.

Contributed by Emily Rhorer