Marcum v. Commonwealth, 390 S.W.2d 884 (Ky. 1965)

Decided on May 21, 1965 by the Kentucky Court of Appeals

Two or more offenses that relate to the same case may be joined. In this case, charges of DUI, driving without a license, and driving while suspended may be joined together.

Furthermore, records of prior driving history were properly admitted where the commissioner of public safety offered evidence of previous revocations, and D testified as to the history of same.

Hovious v. Riley, 403 S.W.2d 17 (Ky. 1966)

Decided on May 20, 1966 by the Kentucky Court of Appeals

Old Subsection 6 of KRS 189.520 read: “No person may be compelled to submit to any test specified in subsection (4) of this section, but his refusal to submit to such test may be commented upon by the prosecution in the trial against any person charged with operating any vehicle while under the influence of alcohol.”

The court in this case admitted evidence of appellant’s refusal to submit herself to a test which may have furnished proof that she had committed the crime of DUI. However, she had the right to refuse under the provisions of [old] KRS 189.520, which conform to the mandate of §11 of our Constitution [the privilege against self-incrimination].

The section, however, the court said, attempts to render nugatory that part of our procedural safeguard which denies the right to any person to comment upon such a refusal.

Therefore, the Court held that (old) Subsection 6 is unconstitutional.

OVERRULED BY: Commonwealth v. Hager, 702 S.W.2d 431 (Ky. 1986) which ruled that refusals may be introduced as a Defendant’s evidence of guilt.

Honeycutt v. Commonwealth, 408 S.W.2d 421 (Ky. 1966)

Decided on November 4, 1966 by the Kentucky Court of Appeals

This case deals with radar detection and is a vital case for any defense attorney with a DUI where the client was stopped for speeding with radar evidence.

“First, the courts will take judicial notice of the fact that a properly constructed and operated radar device is capable of accurately measuring the speed of a motor vehicle. […]

Second, the courts will not take judicial notice of the accuracy of the particular instrument employed on a specific occasion, but will treat, as sufficient evidence of accuracy, uncontested testimony that the instrument was tested within a few hours of its specific use, and found to be accurate, by use of a calibrated tuning fork and by a comparison with the speedometer of another vehicle driven through the radar field. […] In fact, in the latter (Connecticut) case it is indicated that the tuning fork test alone may be sufficient. It is pointed out in that case that the accuracy of the tuning fork itself may be assumed in the absence of an attack by the defendant.

Third, it is sufficient to qualify the operator that he have such knowledge and training as enables him to properly set up, test, and read the instrument; it is not required that he understand the scientific principles of radar or be able to explain its internal workings; a few hours’ instruction normally should be enough to qualify an operator.”

Banks v. Department of Education, 462 S.W.2d 428 (Ky. 1971)

Decided on January 15, 1971 by the Kentucky Court of Appeals

This case deals more with what willful intoxication does to one’s work comp claim.
A worker’s comp claim cannot be sustained where D willfully got intoxicated and placed an inexperienced, unlicensed driver behind the wheel who later killed D.

The court said, “when an employee has imbibed himself with alcoholic drinks to such an extent that he has reached an advanced state of intoxication and has thereby rendered himself incapable of performing or engaging in the duties of that employment he has effectively left the course of that employment.” Therefore, the claim was properly denied.

Ballard v. Commonwealth, 462 S.W.2d 905 (Ky. 1971)

Decided on January 29, 1971 by the Kentucky Court of Appeals

This case is important to the DUI practitioner because it outlines the 4th Amendment’s application to stops of a vehicle in Kentucky.

“A police officer may not stop a motorist without proper justification, and if he does so, any evidence obtained thereby is considered to be illegally obtained and inadmissible.”

Furthermore, if an officer has probable cause to stop a vehicle, and subsequently has reasonable suspicion to search it, he may do so; otherwise it is unconstitutional, and anything obtained in the course of the search will be inadmissible in court.

Timberlake v. Commonwealth, 464 S.W.2d 283 (Ky. 1971)

Decided on February 19, 1971 by the Kentucky Court of Appeals

In order for there to be a refusal to take the breathalyzer, there must be a “positive, unequivocal ‘request'” made by the officer to take the test as stated in Commonwealth, Dept. of Public Safety v. Powers, 453 S.W.2d 260 (1970).

If there is no such request, there may be no refusal from the suspect and a license suspension for failure to comply with the implied consent laws will not stand.

Marcum v. Commonwealth, 483 S.W.2d 122 (Ky. 1972)

Decided on June 23, 1972 by the Kentucky Court of Appeals

The Court discussed at length a provision which has since been stricken from the books — namely, the presumption of intoxication when a Defendant’s BAC was at 0.10 (the old standard).

It read: “If there was 0.10 per cent (1/10%) or more by weight of alcohol in [defendant’s] blood, it shall be presumed that the defendant was under the influence of intoxicating beverages.”

Some states still carry such a provision, but our legislature did away with it after this opinion was published because it required expert testimony to be admitted in order for this provision to be read to the jury. (Presumably that would get too expensive too quickly in DUI prosecutions, so the legislature decided to do away with it altogether.)

The case also outlined some requirements (together with Owens below) for a breath test result to be admissible. Those requirements are: (1) “That the machine was properly checked and in proper working order at the time of conducting the test; (2) that the chemicals employed were of the correct kind and compounded in the proper proportions; (3) that the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test; (4) that the test be given by a qualified operator and in the proper manner.”

Commonwealth v. Owens, 487 S.W.2d 897 (Ky. 1972)

Decided on November 3, 1972 by the Kentucky Court of Appeals

The Defendant argued that the results of a breathalyzer test should not have been admitted in evidence as the integrity of the test was not proved

The court responded: “We believe the integrity was sufficiently established as [1] the operator of the machine testified concerning the training and the operation of the machine, [2] that all necessary preoperational checks were performed and [3] that the machine was functioning satisfactorily.

It is generally held that the prosecution has the burden of proving tests such as the breathalyzer were correctly administered. As a minimum this proof must show that the operator was properly trained and certified to operate the machine and that the machine was in proper working order and that the test was administered according to standard operating procedures.”

Finding no error, the court affirmed.

Britt v. Commonwealth, 512 S.W.2d 496 (Ky. 1974)

Decided on May 17, 1974 by the Kentucky Court of Appeals.

[A question on direct as to why the Defendant does not have a Driver’s License is improper (as it probably goes to show that he has been previously convicted of DUI, and that is not permitted.) Defense counsel must object and admonish the jury, for what it’s worth.]

“[A] confession otherwise voluntary is not to be excluded by reason of self-induced intoxication unless ‘the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements.'”

“[T]he basic question is whether the confessor was in sufficient possession of his faculties to give a reliable statement, the burden being on the prosecution to show that he was.”


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