Com. v. Bivins, 87-SC-375-DG
| Decision Date | 17 December 1987 |
| Docket Number | No. 87-SC-375-DG,87-SC-375-DG |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. Terry A. BIVINS, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
David L. Armstrong, Atty. Gen., Frankfort, Robert P. Moore, Sp. Asst. Atty. Gen., Calvert & Moore, Madisonville, for appellant.
Ken S. Dean, Madisonville, for appellee.
This appeal is from an order denying discretionary review in the Court of Appeals.
Originally, the Commonwealth requested discretionary review from an order of the circuit court which reversed a jury verdict of the district court finding Bivins guilty of driving under the influence of alcohol or other intoxicants.
The question is whether the circuit court, acting as a reviewing court, abused its discretion by reversing the district court on an unassigned question of error.
Bivins was convicted by a jury in district court of driving under the influence, escape, resisting arrest and attempted assault. He was not sentenced to any jail time but was fined for the various offenses. On appeal to the circuit court, all convictions were affirmed except for the DUI. This conviction was reversed because the circuit court concluded that a directed verdict of acquittal should have been given. The circuit court then determined that because Bivins had admitted to drinking on the highway, the driving under the influence charge was reduced to drinking on the highway and a conviction for that offense was imposed. The court then ordered a minimum fine of $10.00 for the reduced charge. The Commonwealth was unsuccessful in seeking discretionary review in the Court of Appeals, but this Court granted review.
This Court reverses the order of the Court of Appeals and the decision of the circuit court and reinstates the judgment of conviction rendered by the district court for driving under the influence.
Bivins assigned as error to the circuit court two questions: 1) Whether probable cause existed to stop his vehicle; and 2) Whether the trial court erred in overruling his motion to suppress evidence because probable cause did not exist for stopping him. The circuit court found that sufficient evidence existed to submit these questions to the jury but also found that the trial court should have granted the motion for a directed verdict as to the charge of DUI even though Bivins had not assigned the sufficiency of the evidence of his intoxication as error. Normally, assignments of error not argued in an appellant's brief are waived. Smith v. Commonwealth, Ky. 567 S.W.2d 304 (1978).
The circuit court on its own determined that the evidence was uncontradicted that Bivins had consumed less than one beer prior to being stopped by the constable. The Commonwealth argues that the evidence was in...
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