Asher v. Com., 87-CA-2717-DG
| Decision Date | 29 December 1988 |
| Docket Number | No. 87-CA-2717-DG,87-CA-2717-DG |
| Citation | 763 S.W.2d 153 |
| Parties | Robert R. ASHER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | Kentucky Court of Appeals |
Fred E. Peters, Lexington, for appellant.
Frederic J. Cowan, Atty. Gen., Margaret M. Connolly, Jill Hall, Asst. Attys. Gen., Frankfort, for appellee.
Before HAYES, MILLER and WEST, JJ.
This case is before the Court on discretionary review from a judgment entered in Fayette Circuit Court affirming a Fayette District Court judgment convicting Robert R. Asher of his second offense of driving under the influence of alcohol. KRS 189A.010.
The sole issue on appeal is this: Whether the Commonwealth is entitled to introduce evidence, in its case in chief, for driving under the influence in a trial on a subsequent DUI charge when the defendant, prior to trial, agreed to stipulate that the penalties to be applied by the jury will be the same enhanced penalties applicable to a conviction on a subsequent offense. Appellant's theory in support of the adoption of a rule answering this question in the affirmative is that a defendant on trial for DUI is substantially prejudiced by the introduction of evidence of such prior similar conviction and that the stipulation of the jury instruction negates the need for introduction of the prior offense.
KRS 189A.010 provides, in pertinent part:
(1) No person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one's driving ability.
(2) Any person who violates the provisions of subsection (1) of this section shall:
* * *
(b) For the second offense within a five (5) year period, be fined not less than three hundred fifty dollars ($350) nor more than five hundred dollars ($500) and shall be imprisoned in the county jail for not less than seven (7) days nor more than six (6) months and, in addition to fine and imprisonment, may be sentenced to community labor for not less than ten (10) days nor more than six (6) months.
In this case the parties have filed an agreed statement of record on appeal because the trial tapes are inaudible and could not be transcribed. The agreed statement provides that prior to trial appellant's counsel approached the bench with a motion in limine and the accompanying stipulation that the jury instructions would provide for a penalty for a second offense. The Commonwealth objected and the court overruled the motion. Appellant was subsequently found guilty and received a sentence of 14 days and a $350 fine under KRS 189A.010(2)(b). On appeal, the Fayette Circuit court...
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