WAYNE A. WORKS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
November 22, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 95-CA-0631-DG
WAYNE A. WORKS
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM GRANT CIRCUIT COURT
HONORABLE CHARLES F. SATTERWHITE, JUDGE
ACTION NO. 94-XX-000017
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * *
BEFORE:
WILHOIT, Chief Judge; EMBERTON and JOHNSTONE, Judges.
JOHNSTONE, JUDGE.
Wayne Works appeals his conviction for driving
under the influence, second offense, for which he was sentenced
to 180 days in the Grant County Detention Center, as well as
being required to pay a fine.
He advances several arguments in
support of his contention that the judgment convicting him of
violating KRS 189A.011 must be overturned.
Based upon recent
decisions of the Kentucky Supreme Court, we agree and reverse the
judgment of conviction and remand the case for a new trial.
Acting on a tip from a woman at the Grant County
Fairgrounds, Trooper Russ Harvey approached appellant's vehicle
while he was stopped in traffic leaving the fairgrounds.
Trooper
Harvey proceeded to remove appellant from the truck and arrested
him for driving under the influence.
After appellant was
transported to the Grant County Detention Center, he was asked to
take a breathalyzer test and was told by Trooper Harvey that
because he did not blow hard enough, he had refused the test.
He
then consented to being taken to the Grant County Hospital where
blood was drawn for analysis approximately 1½ hours after
appellant was first asked to remove himself from the motor
vehicle.
The Grant District Court denied appellant's motion to
suppress evidence recovered as a result of an alleged unlawful
stop and to exclude the blood test results on the basis that they
were unreliable.
Of the several issues advanced for reversal, the issue
of primary concern relates to the introduction of a stipulation
concerning appellant's prior conviction for DUI into evidence as
part of the Commonwealth's case-in-chief and comment regarding
the second offense during the prosecutor's closing remarks.
The
Supreme Court of Kentucky recently addressed this issue in three
cases:
Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996);
O'Bryan v. Commonwealth, Ky., 920 S.W.2d 529 (1996); and Dedic v.
Commonwealth, Ky., 920 S.W.2d 878 (1996).
The Supreme Court
noted that the elements for the offense of driving under the
influence are wholly contained in KRS 189A.010(1).
On the other
hand, the penalties are delineated in subsection (4), with the
severity of punishment increasing with the number of prior
violations of subsection (1).
Ramsey, 920 S.W.2d at 528.
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The
Supreme Court held that evidence of prior convictions is not
essential to the Commonwealth's case-in-chief in the prosecution
of a DUI charge and introduction of the prior convictions is
unduly prejudicial to the defendant.
Consequently, the prior DUI
convictions shall not be introduced during the guilt phase of a
DUI trial, but are only admissible during the penalty phase.
Id.
at 529.
As a result of these decisions, the judgment convicting
appellant must be reversed and the case remanded for a new trial.
We therefore deem it appropriate to touch briefly on some of the
other issues likely to recur in the retrial.
The first matter
concerns the denial of appellant's motion to suppress evidence
gathered by the trooper and the results of the blood test.
We
find no error in the trial judge's decision on either point.
With respect to the validity of the stop, Trooper Harvey had been
approached by a woman who described appellant and his vehicle,
advising the trooper that appellant had been drinking heavily and
was about to leave the fairgrounds in an intoxicated state with
two small children riding in his truck.
Not only are we
convinced of the propriety of the investigatory stop based on
state and federal case law, but we are also firmly of the opinion
that the officer would have been remiss in ignoring such a
serious complaint.
The Court in Commonwealth v. Hagan, Ky., 464
S.W.2d 261, 263 (1971), makes the propriety of the officer's
action abundantly clear with its statement that, "We know of no
reason why a peace officer should not be permitted to stop any
vehicle on the highway at any time for any reasonable purpose."
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Trooper Harvey's actions were for a reasonable purpose and were
reasonable in scope.
There was no error in refusing to suppress
evidence obtained as a result of the stop.
Nor do we perceive any error in admitting evidence of a
blood test administered approximately 1½ hours after the stop.
Appellant was in custody the entire time and there is no reason
to believe that he was more intoxicated at the time of the test
than at the time of the stop.
Likewise, appellant offers no
evidence suggesting that the blood alcohol level increases with
the passage of time.
We find absolutely no basis for concluding
that the test results were unreliable.
Cf. Jewell v.
Commonwealth, Ky., 549 S.W.2d 807 (1977).
Because the issues relating to jury selection are
unlikely to recur upon retrial, we see no necessity for
discussing them further.
The judgment of the Grant Circuit Court is reversed and
the case remanded for a new trial consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Deanna L. Dennison
Covington, KY
James L. Purcell
Williamstown, KY
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