Small v. Commonwealth, 617 S.W.2d 61 (Ky. Ct. App. 1981)

Decided on May 22, 1981 by the Kentucky Court of Appeals

Applicable Law:
“K.R.S. 26A.015(2)(b) provides that a judge shall disqualify himself in any proceeding in which he or she had previously served as a lawyer in the matter in controversy.”

“K.R.S. 26A.015(2)(e) … states that: Any justice or judge of the Court of Justice… shall disqualify himself in any proceeding where he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.”

A judge that has served as an attorney on the case must not serve as judge on the same case and must disqualify himself.

Crone v. Commonwealth, 680 S.W.2d 138 (Ky. Ct. App. 1984)

Decided on November 30, 1984 by the Kentucky Court of Appeals

The pertinent statute: KRS 29A.270(1) states that “Defendants shall have the right to a jury trial in all criminal prosecutions, including prosecutions for violations of traffic laws, in the circuit and district courts. The defendant may request a jury trial at any time prior to the time his case is called for trial.”

A Defendant is entitled to a jury trial unless it is waived by the Defendant or counsel understandingly, intelligently, competently, and voluntarily. The court may not override/overrule that requirement unless it is waived by the Defendant.

Marks v. Commonwealth, 698 S.W.2d 533 (Ky. Ct. App. 1985)

Decided on August 30, 1985 by the Kentucky Court of Appeals

Blood test results are admissible if there was no state action (which could involve a 4th Amendment violation.) For example, as in this case, where the blood was drawn by a hospital not pursuant to a request by law enforcement.

Commonwealth v. Steiber, 697 S.W.2d 135 (Ky. 1985)

Decided on September 26, 1985 by the Kentucky Supreme Court

Question presented: can a jury in a driving under the influence trial be instructed that the defendant’s operator’s license is revoked upon conviction pursuant to KRS 189A.070?

“License revocation is not a punishment but a cautionary measure to protect the safety of the public.” See Commonwealth v. Burnett, 118 S.W.2d 558 (1938).

Payne v. Commonwealth, 623 S.W.2d 867 (1981) forbids counsel and court from any comment concerning the consequences of a particular verdict” to the jury.

The jury should not be instructed on the issue of D’s license revocation as a result of the conviction; but only as to fines and jail time.

Commonwealth v. Hager, 702 S.W.2d 431 (Ky. 1986)

Decided on January 16, 1986 by the Kentucky Supreme Court

This case overrules Hovious v. Riley, 403 S.W.2d 17 (1966) which did not allow refusals to be used against the Defendant in a DUI trial.

This means that in Kentucky, for about a 20 year period, refusals could not have been used against a Defendant at trial! A very unusual decision by a court.

Nevertheless, since January, 1986, with the Hager decision, refusals may be used against aDefendant as evidence of guilt at trial.

Wells v. Commonwealth, 709 S.W.2d 847 (Ky. Ct. App. 1986)

Decided on March 21, 1986 by the Kentucky Court of Appeals

Applicable Law:
Without evidence of some form of operation of a vehicle that the person had to perform to arrive at the place where they were at the time of arrest, the Court will find him or her not guilty of DUI.

The court will look at 4 factors to determine operation:

  1. Whether or not the person in the vehicle was asleep or awake;
  2. Whether or not the motor was running;
  3. The location of the vehicle and all of the circumstances bearing on how the vehicle arrived at that location; and
  4. The intent of the person behind the wheel.

In the instant case, only the second factor was found – the engine was on. And the court reversed the conviction stating that “A sleeping person is seldom operating anything.” Furthermore, the court stated its position on the issue of interpreting “actual physical control.” There is a split of authority among states as to what this means when the engine of a vehicle is turned on. Kentucky law is clear now that “merely starting the engine in the van [is] not an exercise of actual physical control [].”

Keller v. Commonwealth, 719 S.W.2d 5 (Ky. Ct. App. 1986)

Decided on October 10, 1986 by the Kentucky Court of Appeals

1) Failure to accept a guilty plea does not constitute reversible error — a court may refuse to accept a guilty plea pursuant to RCr 8.08.

2) DUI, although a lesser included offense of wanton murder, or manslaughter (in a motor vehicle collision), cannot bar prosecution for manslaughter by Double Jeopardy if the DUI is plead guilty to. There is no double jeopardy issue in a lesser included offense, because “the state need not prove the element of intoxication needed to support the DUI charge” (Blockburger). Thus the crimes of DUI and wanton murder are separate and distinct.

Commonwealth v. Willis, 719 S.W.2d 440 (Ky. 1986)

Decided on November 6, 1986 by the Kentucky Supreme Court

“[C]omputer printouts of driver licensing and similar records are not admissible in evidence to establish previous convictions [of DUI]. Properly certified copies of the records of convictions are required. OAG 75-561.” [Opinion of the Attorney General].

The court reasoned that it “[found] it hard to understand how a simple notation of the date of a supposed conviction can suffice to prove the elements of a criminal charge regarding a third offense when no other evidence of prior convictions is offered or filed.”

Commonwealth v. Dean, 732 S.W.2d 887 (Ky. 1987)

Decided on July 2, 1987 by the Kentucky Supreme Court

Similar to Willis above, a Transportation Cabinet’s driving history records regarding suspension or revocation of operator’s licenses may not be used. The best evidence is required, i.e. properly certified copies of same.

OVERRULED BY: Commonwealth v. Duncan 2/27/1997 No. 95-SC-62-CL: Certified copies of the DOT’s driving history satisfy the KRE 902 authentication requirement (“self authentication”). In both Duncan and Dean, the court did not require a conviction to charge the defendant for driving on a suspended license, but only proof that the license was indeed suspended. Therefore, a certified copy of the DOT’s driver’s history is sufficient proof, by itself, to convict under KRS 186.620(2).

Willis remains good law because it related to proving prior convictions, not revocation of one’s operator’s license, as in Dean and Duncan, since in prosecuting a suspended license charge, it is not necessary to prove a prior conviction.

Beane v. Commonwealth, No. 85-CA-2161-DG (Ky. 1987)

Decided on July 2, 1987 by the Kentucky Supreme Court

“[T]he mandatory service fee [of $375 in 2016] imposed [under KRS189A.050] constitutes an additional ‘fine’ or ‘penalty'” and is therefore not excusable by the defendant.

If the Defendant needs more time to pay the fine, he may show cause as to why the court should grant him or her more time pursuant to KRS 534.060(1).

Division of Driver Licensing v. Bergmann, 740 S.W.2d 948 (Ky. 1987)

Decided on November 25, 1987 by the Kentucky Supreme Court

Defendant was convicted of a first offense DUI on March 18, 1982. He was then convicted of a “second” DUI on May 23, 1985. This second DUI, however, was characterized by the District Court as a “first” and that is where the issue with the Transportation Cabinet arose.

Question Presented: Whether a second conviction for DUI empowers the Transportation Cabinet to revoke the driver’s license of a person so convicted for twelve months.

A 12-month suspension for a DUI “2nd offense” was the issue. The court stated that the defendant has an opportunity for a “full evidentiary hearing in the trial court for a driver arrested for DUI and for mandatory revocation by the Transportation Cabinet based solely on the record of criminal convictions.”

Furthermore, “…due process was completely satisfied when Bergmann was notified of the revocation because the only possible issue he could raise was that of clerical error. Where there is the possibility of clerical error, written objection will bring such a matter to the attention of the agency administering the revocation. Dixon v. Love; Mackey v. Montrym, 443 U.S. 1 (1979).”

The “revocation period is not governed by the conviction as a first, second, third or subsequent violation of the statute within a five-year period but by the number of convictions sustained for DUI under the statute within that period.”

Therefore, there is no constitutional violation, and the 12-month suspension is permitted.

[This case may seem silly to the modern reader, but one must not forget that this was a case of first impression in 1987, and thus the Supreme Court decided to hear it and decide the issue to avoid future litigation.]

Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328 (Ky. 1987)

Decided on September 24, 1987 by the Kentucky Supreme Court

This seminal case discusses the duties of the business to a ‘business invitee’ who is visibly intoxicated and is continued to be served alcohol. The business then becomes responsible for any injuries, damage, or harm the invitee may later cause.

“[W]here there is evidence from which it can be reasonably inferred that the tavern keeper knows or should know that he is serving ‘a person actually or apparently under the influence of alcoholic beverages (KRS 244.080(2))’ and that there is a reasonable likelihood that upon leaving the tavern that person will operate a motor vehicle, the elements necessary to establish a negligence action are proved.” And the tavern keeper will be responsible for any damages that the invitee causes (this is also known as the “dram shop” law).

The following year, the legislature enacted the following statute – KRS §413.241(2):
“Any other law to the contrary notwithstanding, no person holding a permit under KRS Chapter 241 to 244, nor any agent, servant, or employee of the person, who sells or serves intoxicating beverages to a person over the age for the lawful purchase thereof, shall be liable to that person or to any other person or to the estate, successors, or survivors of either for any injury suffered off the premises including but not limited to wrongful death and property damage, because of the intoxication of the person to whom the intoxicating beverages were sold or served, unless a reasonable person under the same or similar circumstances should know that the person served is already intoxicated at the time of serving.”

Therefore, Kentucky now statutorily limits liability to cases where the establishment sold or served alcohol to an obviously intoxicated individual or a person under the legal drinking age.

Commonwealth v. Ramsey, 744 S.W.2d 418 (Ky. 1988)

Decided on November 5, 1987 by the Kentucky Supreme Court;
​Rehearing Denied on March 3, 1988

“[W]hen a police officer has [makes] a lawful custodial arrest of the occupant of an automobile [for DUI or otherwise], the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454 (1981).

Inspecting the serial number on a chain saw found in semi-plain view in the vehicle was upheld as constitutional.

Commonwealth v. Bivins, 740 S.W.2d 954 (Ky. 1987)

Decided on December 17, 1987 by the Kentucky Supreme Court

The Circuit Court in this case determined, on its own, that there was insufficient evidence to convict the Defendant and imposed its own sentence – acquittal.

“Under the Judicial Article adopted in 1975 as an amendment to the Kentucky Constitution, circuit courts may review decisions of the district court in an appellate capacity only. The circuit court does not have authority to consider matters on appeal de novo. The circuit court acting as an appellate court cannot reevaluate the evidence or substitute its judgment as to the credibility of a witness for that of the trial court and the jury.”

Therefore, the Court reversed and reinstated the decision of the district court’s trial jury.


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