Billingsley v. Commonwealth, No. 2002-CA-001879-MR (KY 10/15/2004)
| Decision Date | 15 October 2004 |
| Docket Number | No. 2002-CA-001879-MR.,No. 2002-CA-001957-MR.,2002-CA-001879-MR.,2002-CA-001957-MR. |
| Parties | Stanley M. BILLINGSLEY and Gary Tilley, Real Party in Interest, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Judge Stanley M. Billingsley, Carroll District Court, Carrollton, Kentucky, Brief for Appellant.
Edward M. Bourne, Owenton, Kentucky, Brief for Real Party in Interest Gary Tilley.
James C. Monk, Carroll County Attorney, Carrollton, Kentucky, A. B. Chandler III, Attorney General, Frankfort, Kentucky, Brief for Appellees.
Before: BARBER, SCHRODER, and VANMETER, Judges.
This is an appeal by a judge of the Carroll District Court from a writ of prohibition entered by the Carroll Circuit Court. The writ prohibited the district judge, appellant, Stanley M. Billingsley, from enforcing an order suppressing the introduction of the Breathalyzer ("BA") test performed on the real party in interest, Gary Tilley. For the reasons stated hereafter, we affirm.
On August 11, 2001, Tilley was arrested for driving under the influence (DUI) in Carroll County, Kentucky. Tilley was transported to the Carroll County Jail where he received a BA test on the Intoxilyzer 5000 with the simulator attachment, which tested 0.181. On February 8, 2002, Tilley moved to suppress the BA test results because the arresting officer failed to follow the directions for the simulator, specifically, whether the simulator's hoses were warm and whether the simulator's paddle properly turned. Upon the conclusion of the suppression hearing, appellant held that the arresting officer did not abide by the standard operating procedures for the Intoxilyzer 5000 and therefore, the machine was not in proper working order on the testing day as required by Owens v. Commonwealth, Ky., 487 S.W.2d 897 (1972).1
As a result, appellee, the Commonwealth of Kentucky, filed for a writ prohibiting appellant from enforcing the suppression order. On August 21, 2002, the Carroll Circuit Court entered a writ of prohibition holding: (1) according to Commonwealth v. Williams, Ky. App., 995 S.W.2d 400 (1999) and Tipton v. Commonwealth, Ky. App., 770 S.W.2d 239 (1989), it had jurisdiction; and (2) based on Commonwealth v. Davis, Ky., 25 S.W.3d 106 (2000), the arresting officer's failure to check the simulator's hoses for warmth and to determine whether its paddle properly turned go to the weight of the evidence, rather than to its admissibility. This appeal followed.
Appellant contends the circuit court erred in granting a writ of prohibition under Williams, 995 S.W.2d 400 and Tipton 770 S.W.2d 239, arguing that those decisions contradict the court's holding in Eaton v. Commonwealth, Ky., 562 S.W.2d 637 (1978), and in allowing the BA test results into evidence arguing that the circuit court ignored the foundation requirements in Owens, 487 S.W.2d 897. In addition, appellant argues the Court of Justice denied him due process of law by failing to provide him funding for legal counsel to proceed on this appeal. Similarly, the Real Party in Interest, Gary Tilley ("Tilley"), argues that the circuit court erred in granting the writ of prohibition since the Commonwealth would encounter neither great injustice nor irreparable harm by suppressing the evidence; and in failing to follow the standards in Owens.
As to the circuit court's jurisdiction to issue a writ of prohibition, in Tipton, we found that a party seeking relief from interlocutory district court rulings, procedurally, may obtain circuit court review through CR 81 and KRS 23A.080(2).2 770 S.W.2d at 241. Specifically, in Tipton we held:
While we are persuaded that the Commonwealth cannot properly get the review it sought and obtained [through KRS 22A.020(2)3 or KRS 23A.080(1)4], we equally believe some vehicle for review of such interlocutory district court rulings should be available. Otherwise, the Commonwealth may be forced to trial without vital evidence or with some other significant prejudice to its case, as shown herein.
In our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court. See SCR 1.040(6). CR 81 allows the old remedy by writs of mandamus and prohibition to be obtained by an original action in the appropriate court. This is not an immediate and direct interlocutory appeal to the appellate court but an original action. Procedurally, review is granted, thereby comporting with KRS 23A.080(2) which says, "The circuit court may issue all writs necessary in aid of its appellate jurisdiction . . . ."
Id. (emphasis original). Here, upon suppression of Tilley's BA test result, the Commonwealth was unable to seek relief from either KRS 22A.020(2), which gives the court of appeals jurisdiction over interlocutory orders from the circuit court, or from KRS 23A.080(1), in which a "final" action of the district court is required before it can directly appeal to the circuit court.5 Therefore, "the circuit court is without jurisdiction to take an interlocutory `appeal' from district court as the proper method of procedure is through an original action seeking a writ of mandamus or prohibition" by CR 81 and KRS 23A.080(2). Thus, the circuit court herein acted within its jurisdiction. Williams, 995 S.W.2d at 403. See also Tipton, 770 S.W.2d at 242.
Even so, appellant argues that the circuit court's decision contradicts Eaton, which found that the exclusion of evidence "does not permit an appellate court to disturb the discretionary ruling of a trial court" and a writ of prohibition 562 S.W.2d at 638-639. Moreover, appellant contends that we exceeded our appellate authority by creating "a new rule of law" in Williams and Tipton. Thus, appellant is essentially requesting that this court overturn our previous holdings.
However, the facts of the instant case and those in Williams and Tipton are readily distinguishable from those in Eaton. In Eaton, the Commonwealth appealed a discretionary ruling of the circuit court, as the trial court, pursuant to KRS 22A.020(4), which allows an appeal from the circuit court to the court of appeals. However, in the instant case, the Commonwealth sought a writ of prohibition by an original action from the district court to the circuit court since "an appeal is available only in the instance of a final ruling from district court" through KRS 23A.080(1). Williams, 995 S.W.2d at 403.6 Given the procedural differences between the matter herein and Eaton, we are not willing to disturb our previous holdings.
Next, appellant argues the circuit court erroneously relied on dicta from Tipton, 770 S.W.2d at 241, which is cited inWilliams, 995 S.W.2d at 403, stating "we equally believe some vehicle for review of such interlocutory district court rulings should be available" and "[ i]n our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court." However, we find that "should be" and "in our opinion" are not dicta since the statements addressed a subject which was "`necessary to the determination of the issues raised by the record and considered by the court.'" Brown v. Diversified Decorative Plastics, LLC, Ky. App., 103 S.W.3d 108, 111 (2003) (quoting Utterback's Adm'r v. Quick, 230 Ky. 333, 19 S.W.2d 980, 983 (1929)). Clearly, as set forth above, the distinctions between KRS 22A.020 and KRS 23A.080 were matters necessary for review by the court in Tipton, 770 S.W.2d at 241.
Next, appellant and Tilley argue the circuit court erred by ignoring the foundation requirements for admitting the BA test result as set forth in Owens, 487 S.W.2d at 900.7 See Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972). However, the Kentucky Supreme Court recently modified the foundation requirements for admitting a BA test and overruled Owens and Marcum in Commonwealth v. Roberts, Ky., 122 S.W.3d 524, 528 (2003). The Court's holding, according to relevant cases,8 statutes9 and administrative regulations,10 was that the foundation requirements for admission of a breath test are as follows:
1) That the machine was properly checked and in proper working order at the time of conducting the test.
2) That the test consist of the steps and the sequence set forth in 500 KAR 8:030(2).
3) That the certified operator have continuous control of the person by present sense impression for at least twenty minutes prior to the test and that during the twenty minute period the subject did not have oral or nasal intake of substances which will affect the test.
4) That the test be given by an operator who is properly trained and certified to operate the machine.
5) That the test was performed in accordance with standard operating procedures.
Roberts, 122 S.W.2d at 528. Here, appellant specifically argues that the circuit court failed to find that the BA test was performed in accordance with standard operating procedures since the arresting officer failed to follow the directions for using the simulator attachment issued by the Justice Cabinet.11 Appellant contends that because the manufacturer of the Intoxilyzer 5000 has not issued instructions for the simulator attachment, the Justice Cabinet's direction list should be considered the "standard operating instructions" requirement as found in Roberts, 122 S.W.3d at 528.12 See KRS 189A.103(3)(a); KRS 189A.103(4); and 500 KAR 8:030(2).
It is important that we clarify that the simulator component is an optional attachment in which Kentucky uses as a connection to the Intoxilyzer 5000.13 Despite ap...
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