Com. v. Wirth, 95-SC-402-CL

• Decision Date: 26 September 1996
• Docket Number: No. 95-SC-402-CL,95-SC-402-CL
• Citation: 936 S.W.2d 78
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Michael Alan WIRTH, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 78

936 S.W.2d 78

COMMONWEALTH of Kentucky, Appellant, v. Michael Alan WIRTH, Appellee.

No. 95-SC-402-CL.

Supreme Court of Kentucky.

Sept. 26, 1996.

Rehearing Denied Jan. 30, 1997.

A.B. Chandler, III, Attorney General, Frankfort, Garry L. Edmonson, Kenton County Attorney, Covington, for appellant.

Robert A. Riley, Assistant Public Advocate, LaGrange, Edward C. Monahan, Assistant Public Advocate, Frankfort, for appellee.

Wilbur M. Zevely, Florence, for amicus curiae.

LAMBERT, Justice.

We granted the Commonwealth's request for certification of the law (Ky. Const. § 115 and CR 76.37(10)) to determine the proper construction of KRS 189A.010 and other statutes which deal with driving under the influence of alcohol. In a broadly interpretive opinion, the Kenton District Court construed the statute to require, inter alia, a pre-trial election by the Commonwealth as to which of the four subparts of KRS 189A.010(1) it would undertake to prove, and to require additional warnings by which a defendant would be informed that he may not be compelled to submit to any chemical testing and to further correct perceived inaccuracies in the statutory warnings. The trial court also held that without expert testimony to prove the absorption rate of alcohol, chemical testing performed after the last ingestion of alcohol will not be admitted in evidence to prove blood alcohol content at the time the defendant was driving. Finally, the trial court held that expert testimony as to the proper operation of the machine would be required to establish a foundation for admission of the results of a breath test.

We have been informed that great uncertainty and inconsistency prevails within the divisions of the Kenton District Court and perhaps in district courts elsewhere in Kentucky. In this opinion we will answer the questions which have been raised while recognizing, nevertheless, that respondent, for reasons of double jeopardy, may not be further prosecuted due to the trial court's finding that he was not guilty of a violation of the per se statute, KRS 189A.010(1)(a).

After having been observed driving in an erratic manner after midnight on December 3, 1994, respondent was stopped by a Villa Hills police officer on suspicion of violating the alcohol driving laws. After failing various field sobriety tests, respondent was arrested and taken to the police station. At the station, an officer who was certified to operate the Intoxilyzer 5000 read respondent the warnings required by KRS 189A.105. After observing respondent for twenty-three minutes, the test was administered and the result obtained was .156 blood alcohol content. After various pre-trial motions and a suppression hearing, the case was set for trial by jury. Thereafter, however, respondent waived his right to a jury trial and the case was submitted to the trial court upon a joint stipulation of facts. The facts so stipulated were that the arresting officer had probable cause to arrest respondent; that the warning required by KRS 189A.105(1)(a) was read to respondent; that the operator was properly certified to operate the Intoxilyzer 5000 pursuant to the administrative regulations; that the administration of the breath test followed the proper sequential steps required by the regulations; that the ambient air sample fell within an acceptable range; and that respondent was observed for twenty-three minutes before the breath test was given.

Despite the stipulated facts, the trial court found defendant not guilty substantially on grounds that the Commonwealth had failed to introduce evidence which related the Intoxilyzer result back in time to the point at which respondent had last been observed operating a motor vehicle, a period found to be one hour and twelve minutes. On this basis, the charges against respondent were dismissed.

The first issue we will address is whether the Commonwealth must elect under which section of KRS 189A.010(1) it intends to proceed. In this case, as is typical, the required election was between (a) and (b). Subsection (a) provides that a violation occurs when a person operates or is in physical control of a motor vehicle while the alcohol concentration in his blood or breath is .10 or greater. This is usually referred to as the "per se " statute and requires proof only of .10 or more alcohol concentration without regard to its effects on motor vehicle operation. King v. Commonwealth, Ky.App., 875 S.W.2d 902 (1994). Subsection (b) proscribes operation or physical control of a motor vehicle while under the influence of alcohol. This subsection broadly deals with the effect of alcohol on the motor vehicle operator and is usually proven by evidence of aberrant driving behavior.

The conduct proscribed in KRS 189A.010(1)(b) is not substantially different than under former law. What is different is subsection (a) which criminalizes the presence of chemicals in a defendant's blood or breath. In our view, this provision does not create a new or separate offense, but merely provides an additional means by which a motor vehicle alcohol related offense may be committed. While an additional means of committing the offense has been created, the punishment remains one and the same. As we see it, therefore, the question is whether in circumstances where a defendant may be guilty of violating two or more sections of the same statute, but subjected only to a single punishment, is it proper for the prosecution to go forward with all available proof of statutory violations, and permit a conviction on whatever basis is supported by the evidence. The answer is in the affirmative. Robards v. Commonwealth, Ky., 419 S.W.2d 570 (1967).

The trial court has read KRS 189A.010(1) to prefer or even mandate only a per se prosecution if such evidence is present. It said:

The legislative scheme appears to have envisioned that all cases involving a BA reading or blood alcohol content of .10% or greater would be tried under KRS 189A.010(1)(a) as a per se offense....

Slip op. at 7.

The legislative intent to encourage that all DUI cases with a BAC of .10% or higher be tried as "per se" cases is strongly evidence in the provisions of KRS 189A.010(2). In this statute the legislature omitted the presumption of intoxication that was present in prior law. This means that under KRS 189A there is no positive statutory presumption of intoxication if the BAC is .10% or higher. The only statutory presumptions in this Chapter regarding intoxication are now negative or neutral presumptions and only apply in cases where the BAC is less than .10%. The theory goes that since there is no longer any need to prove intoxication or impairment, only the reading in excess of the statutory minimum is relevant. Therefore, there is no longer a need for a presumption of intoxication or impairment.

Slip op. at 9. We find no support in the statute for this interpretation. We observe that the obvious reason for the omission of any presumption when the blood alcohol content reading is .10 or greater is that a completed offense is established thereby, rather than a rebuttable presumption of impairment of driving ability. King v. Commonwealth, supra.

We have recently reiterated the viability of alcohol driving prosecutions based on evidence other than that which is derived from scientific testing. In Commonwealth v. Hicks, Ky., 869 S.W.2d 35 (1994), we quoted with approval from Allen v. Commonwealth, Ky.App., 817 S.W.2d 458 (1991), and stated that a DUI conviction could be sustained without evidence procured by use of a device for measuring intoxication. We held that the trial court erred in dismissing a case over prosecution objection where the scientific evidence had not been admitted. Indicating that the observations of the police officer would have been sufficient to make a prima facie case for the jury, we said:

In such a circumstance, the Commonwealth was entitled to go forward and the trial judge was without authority to dismiss the case. We reiterate, it is not the province of a trial court to determine that a case should be dismissed contrary to the wishes of a party who has announced ready for trial.

While we do not agree with an interpretation that the statute or laws requires an election as to which of the four statutory subsections will be prosecuted to the exclusion of all others, it would appear that fundamental fairness and appropriate trial preparation requires notice as to which statutory subsections will be proven by the Commonwealth. Such notice should be given in good faith within a reasonable time prior to trial to permit the defendant to assemble evidence in opposition to the charges against him. A blanket notice covering all possible violations without regard to the available evidence would defeat the purpose and be tantamount to no notice at all.

Accordingly, it is our determination that the trial court erred with respect to its prohibition against a prosecution pursuant to KRS 189A.010(1) upon multiple theories. Where there is evidence to prove one or more theories of the case, the Commonwealth may present all such evidence and have the jury render a verdict thereon.

The next question presented is whether the warning provided for in KRS 189A.105 is insufficient and should be supplemented with additional warnings. It was the trial court's opinion that the warnings enumerated in KRS 189A.105(1)(a)(1), (2) and (3) are inaccurate and contain misinformation and should be supplemented so as to avoid any misleading and achieve greater accuracy. In particular, a primary focus is placed upon the provision which states that "no person shall be compelled to submit to any test or tests." KRS 189A.105. Appellee insists that not only are the warnings set forth in the statute inaccurate, but that it would be impossible to craft a warning which would be truly adequate. The remedy he proposes is to inform a defendant of his right to counsel prior to deciding whether to take or...