GILBERT CORNELISON V. COMMONWEALTH OF KENTUCKY AND COMMONWEALTH OF KENTUCKY V. DONALD DECKER
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RENDERED: AUGUST 23,200l
TO BE PUBLISHED
GILBERT CORNELISON
APPELLANT
APPEALED FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
CRIMINAL NO. 99-CR-00053
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
2000-SC-0813-TG
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEALED FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
CRIMINAL NO. 99-CR-002628
V.
DONALD
DECKER
-
APPELLEE
OPINION OF THE COURT BY JUSTICE GRAVES
AFFIRMING CASE NO. 2000-SC-0646-DG
and
REVERSING CASE NO. 2000-SC-0813-TG
Inasmuch as these two cases were argued before the Court on the same day
and involve an identical issue, this Court will resolve both cases in this single opinion.
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Case No. OO-SC-0646-DG
On April 26, 1999, Appellant, Gilbert Cornelison, was stopped for suspicion of
operating a vehicle while his license was suspended. The officer observed that
Cornelison emitted a strong odor of alcohol, and Cornelison agreed to submit to a field
sobriety test, which he failed. He was placed under arrest and, more than an hour later,
was administered a Breathalyzer test which indicated that his blood alcohol content was
0.274. Subsequently, Cornelison was indicted for operating a motor vehicle while under
the influence, third offense, a class D felony, and for operating a motor vehicle while
license is suspended for DUI, second offense, a class A misdemeanor.
Cornelison initially entered a plea of not guilty to both offenses and moved the
.’
Madison Circuit Court to declare KRS 189A.O10(4)(c)
unconstitutional. After the trial
court denied the motion, Cornelison pled guilty to the misdemeanor charge and entered
a conditional guilty plea to the felony DUI charge. The trial court sentenced Cornelison
to three months in jail for driving on a suspended license, and to one year imprisonment
for the DUI conviction, with the sentences to run concurrently. The trial court noted that
after Cornelison had served the 120-day mandatory minimum sentence on the felony
conviction it would consider a request for probation so that Cornelison could attend an
alcohol rehabilitation program.
Cornelison thereafter appealed the DUI conviction to the Court of Appeals,
contending that the 1998 amendment to KRS 189A.O10(4)(c)
was unconstitutional. The
Court of Appeals held that the statute was neither arbitrary nor a violation of
Cornelison’s equal protection rights. This Court granted discretionary review.
Additional facts will be developed in the course of this opinion.
KRS 189A.O10(4)(c),
was amended in 1998 to provide:
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Any person who violates the provisions of paragraph (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 dollars ($1,000) and shall be imprisoned in the
county 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.
KRS 189A.01 O(4) provides a comprehensive scheme of escalating penalties to
be imposed on individuals who engage in the inherently dangerous activity of driving
while under the influence of alcohol. Prior to the 1998 amendments, the sanctions
progressed in severity based solely on the number of offenses within a five-year period.
The Legislature amended the statute in 1998 and chose, in the case of first-time and
third-time offenders, to further classify offenders according to their degree of
intoxication, enhancing the penalty for those driving with a blood-alcohol content of 0.18
or higher.’
A first-time offender with a blood alcohol level of less than 0.18 could be given a
fine of between $200 and $500, and be imprisoned “for not less than forty-eight (48)
hours nor more than thirty (30) days,” or could receive both a fine and a sentence of
imprisonment. However, while a first-time offender with a blood alcohol level of 0.18 or
’ The Legislature has since further amended KRS 189A.01 O(4). The amended
statute, renumbered as KRS 189A.01 O(5), which became effective October 1, 2000,
subjects all offenders to enhanced penalties if certain “aggravating circumstances” are
present. Those “aggravating circumstances” are enumerated in subsection (11) and
include operating a motor vehicle with a blood alcohol content of 0.18 or more. In
addition, a third time offender is no longer subject to felony sanctions. Rather, a thirdtime offender with a blood alcohol content of 0.18 or higher can be sentenced to a term
of imprisonment for twelve months and such offender must serve at least 60 days in jail
before becoming eligible for any type of release.
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higher could be subjected to the same fines, subsection (4)(a) required that the
offender be sentenced to jail for at least seven days, five of which could be probated. A
third offense committed within a five year period by one whose blood alcohol level was
less than 0.18 could result in a fine of $500 to $1,000, and imprisonment for 30 days to
12 months. The part of the statute which Cornelison challenges provides that a third
offense within a five year period by a driver with a blood alcohol level of 0.18 is
classified as a class D felony carrying a penalty of imprisonment from one to five years.
‘The 1998 amendment did not affect the penalties for second, fourth or subsequent
offenses.
It is a settled principle that when the legislature “has enacted a statute, [it] is
presumed to have done so in accordance with the constitutional requirements, and that
its provisions are not contrary to any constitutional right . . . .” Lakes v. Goodloe, 195
Ky. 240, 242 S.W. 632, 635 (1922). A statute will not be struck down as
unconstitutional “unless its violation of the constitution is clear, complete and
unequivocal.” Sasaki v. Commonwealth, Ky., 485 S.W.2d 897, 902 (1972), vacated on
other arounds, 410 U.S. 951 (1973). Moreover, the Commonwealth does not bear the
burden of establishing the constitutionality of a statute, rather “[tlhe one who questions
the validity of an act bears the burden to sustain such a contention.” Stephens v. State
Farm Mutual Auto Insurance Co., Ky., 894 S.W.2d 624, 626 (1995).
Cornelison first takes issue with the legislature’s designation of a blood alcohol
level of 0.18 as being the “magical level” beyond which a third-time offender is treated
as a felon. Cornelison argues that 0.18 is an arbitrary level and only seeks to penalize
third time offenders “for no reason at all.” Moreover, he contends that there is no
reliable evidence that drivers whose blood alcohol levels are 0.18 or higher pose any
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greater risk to the public than those whose levels are below 0.18.
As we have previously noted, the Commonwealth is not obligated to produce
evidence to sustain the rationality of statutory classifications. Steohens, supra. We are
of the opinion that Cornelison, who does in fact have the burden of demonstrating the
arbitrariness of the statute, has failed to do so. Just as the legislature has recently
amended the statute to provide that an alcohol concentration of 0.08 or higher creates a
presumption of intoxication, it has the authority to declare that a level of 0.18 or higher
warrants
increased
penalties.
Cornelison next contends that the statute violates the equal protection
guarantees found in the United States and Kentucky Constitutions. Again, we disagree.
In Commonwealth v. Howard, Ky., 969 S.W.2d 700, 702 (1998) this Court ruled that
the juvenile DUI statute, KRS 189A.OlO(l)(e), did not violate the equal protection
clause under a rational basis analysis:
It must be understood that driving an automobile is not a fundamental
constitutional right, but a legitimately regulated privilege. Thus, the review
of this matter under a rational basis analysis is appropriate because the
legislation in question does not infringe on a fundamental right, nor does it
.
impact on a suspect class negatively.
Under the rational basis analysis, “a classification must be upheld against an equal
protection challenge if there is any reasonably conceivable state of facts that would
provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 113 S.Ct.
2637, 125 L.Ed.2d 257 (1993).
The 1998 amendment to KRS 189A.O10(4)(c)
was in response to the serious
and growing societal problem of drunk driving. In amending KRS 189A.O10(4)(c),
the
Legislature was obviously concerned not only with the danger to society created by
repeat DUI offenders, but also about the level of intoxication of those drivers.
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Cornelison argues that if the purpose of the statute was to protect the public from
potential harm inflicted by drivers with an intoxication level of 0.18 or more, then all
offenders whose blood alcohol content reaches such level should be subject to the
increased penalties. Undisputedly, the Legislature did not impose greater sanctions for
second-time offenders who are caught driving with the higher level of alcohol in their
system. However, as we stated in Howard, supra, a statute does not have to be perfect
to pass constitutional muster. At the time of the 1998 amendment, the Legislature
evidently believed that the sanctions for second-time offenders, as well as fourth-time
and subsequent offenders, were severe enough. Unquestionably, the discretion to
define the level of harm and the appropriate punishment is within the purview of the
:
Legislature, not this Court. Mullins v. Commonwealth, Ky. App., 956 S.W.2d 222
(1997).
In Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 548 (2000) we stated that
“[t]he rational basis argument can be paraphrased as ‘Is there a good reason to adopt a
law?’ The answer is a stunningly simple ‘yes.’ The legislature has broad discretion to
determine what is harmful to the public health and welfare.”
There is nothing inherently
unfair in treating the same class of multiple offenders differently based on their level of
intoxication. Thus, we conclude that the trial court and the Court of Appeals were
correct in holding that a rational basis existed for the 1998 amendment to KRS
189A.O10(4)(c).
Case No. 2000~SC-0813-TG
Appellant, Donald Decker, was indicted in July 1999, on one count of operating a
vehicle while under the influence of alcohol, third offense, a class D felony, and one
count of operating a motor vehicle while license is suspended or revoked for driving
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while under the influence, a class A misdemeanor. At the time of his arrest, Decker’s
blood alcohol content was over 0.18. Decker moved the Jefferson Circuit Court to
declare KRS 189A.O10(4)(c)
unconstitutional as an arbitrary exercise of the
Commonwealth’s police power. In March 2000, the trial court issued an order holding
KRS 189A.O10(4)(c)
unconstitutional as a violation of both the United States and
Kentucky Constitutions. The Commonwealth appealed and the Court of Appeals
thereafter recommended transfer to this Court.
The essential questions raised in this case regarding the constitutionality of KRS
189A.O10(4)(a)
as it existed at the time of Decker’s offense have been answered as it
applies to Cornelison’s case, to the effect that the 1998 statute was constitutional. As
such, the Jefferson Circuit Court erred in holding the statute unconstitutional.
The decision of the Court of Appeals in Case No. 2000-SC-0646-DG is hereby
affirmed.
The order of the Jefferson District Court in Case No. 2000-SC-0813-DG is
hereby vacated and the case is remanded for further proceedings.
All concur.
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COUNSEL FOR GILBERT CORNELISON
Tera M. Rehmel
Woodward, Hobson & Fulton LLP
2500 National City Tower
Louisville, KY 40202-3175
COUNSEL FOR DONALD DECKER
John M. Finnegan, Jr.
709 West Jefferson St.
Louisville. KY 40202
COUNSEL FOR COMMONWEALTH OF KENTUCKY
A.B. Chandler III
Attorney General
Todd D. Ferguson
Assistant Attorney General
Teresa Young
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
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