COMMONWEALTH OF KENTUCKY v. JOHN A. FITZPATRICK
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RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000314-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE STEPHEN N. FRAZIER, JUDGE
INDICTMENT NO. 99-CR-00014
v.
JOHN A. FITZPATRICK
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON, Judge:
On February 19, 1999, John A. Fitzpatrick was
charged in an indictment with operating a motor vehicle while under
the influence, third offense with a blood alcohol concentration
over 0.18,1 operating a motor vehicle on a license suspended for
1
See Ky. Rev. Stat. (KRS) 189A.010(4)(c). KRS 189A.010 was
amended by 2000 Kentucky Acts Ch. 467, § 2 (effective October 1,
2000). Before it was amended KRS 189A.010(4)(c) provided that:
(4) Any person who violates the provisions of paragraphs
(a), (b), (c) or (d) of subsection (1) of this section
shall: . . .
(c) If the alcohol concentration is below 0.18, for a
third offense within a five (5) year period, be fined not
less than five hundred dollars ($500) nor more than one
thousand ($1,000) and shall be imprisoned in the county
(continued...)
DUI, second offense, and possession of marijuana.
moved
for
an
189A.010(4)(c)
order
declaring
Kentucky
unconstitutional,
Kentucky responded.
to
Revised
which
the
Fitzpatrick
Statute
(KRS)
Commonwealth
of
On January 10, 2000, the circuit court held
KRS 189A.010(4)(c) unconstitutional. The Commonwealth appeals from
that order.
The circuit court’s January 10, 2000, order declaring KRS
189A.010(4)(c) unconstitutional states that KRS 189A.010(4)(c) is
an arbitrary and selective enactment of penalties that is not
reasonably or rationally related to a stated criminal justice goal.
The Commonwealth argues that, because driving an automobile is not
a fundamental right and the statute does not affect a suspect
class, a rational basis standard of review must be utilized and the
statute should be held rationally related to a legitimate state
interest and, therefore, constitutional.
Recent
decisions
of
this
Court,
with
Cornelison
v.
Commonwealth2 leading the way, have held KRS 189A.010(4)(c) to be
1
(...continued)
jail for not less than thirty (30) days nor more than
twelve (12) months and may, in addition to fine and
imprisonment, be sentenced to community labor for not
less than ten (10) days, nor more than twelve (12)
months. If the alcohol concentration is 0.18 or above,
he or she shall be guilty of a Class D felony.
Amended, KRS 189A.010(4)(c) no longer provides “If the alcohol
concentration is below 0.18" or “If the alcohol concentration is
0.18 or above, he or she shall be guilty of a Class D felony.”
Further, the language from former section (4)(c) is now section
(5)(c). For purposes of this opinion, the challenged section will
be referred to as KRS 189A.010(4)(c).
2
1999-CA-001825-MR (To be published opinion rendered July 7,
2000), motion for discretionary review granted December 13, 2000,
47 Ky. L. Sum. 7 (2000); see also Barker v. Commonwealth 1999-CA(continued...)
-2-
constitutional.
We
have
rejected
contentions
that
KRS
189A.010(4)(c) is arbitrary, violates equal protection rights,
constitutes unusual punishment and violates the ex post facto
clause.
Cornelison, and its progeny are dispositive of the issue
in this case, and we adopt the reasoning of these decisions rather
than repeating here what was said therein. The circuit court erred
in holding that KRS 189A.010(4)(c) is unconstitutional.
The judgment is reversed and this case is remanded to
Johnson Circuit Court for further proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert B. Chandler III
Attorney General of Kentucky
David T. Adams
ED SPENCER’S LAW OFFICE
Paintsville, Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
2
(...continued)
000500-MR (Unpublished opinion rendered September 29, 2000), 47 Ky.
L. Sum. 11 (2000)
-3-
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