TINA MICHELE EVANS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 8, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001914-MR
TINA MICHELE EVANS
v.
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE JAMES DANIELS, JUDGE
ACTION NO. 99-CR-00011
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Tina Michele Evans (Evans) appeals from a
judgment of the McCracken Circuit Court entered July 6, 1999,
finding her guilty of violation of Kentucky Revised Statute (KRS)
189A.010(4)(c) and sentencing her to two and one-half (2 1/2)
years’ imprisonment.
On June 4, 1999, Evans entered a conditional plea of
guilty pursuant to Kentucky Rules of Criminal Procedure
(RCr) 8.09 to the charge of driving under the influence (DUI)
third offense, with a blood alcohol of 0.18 or above.
We affirm.
The sole issue in this appeal is whether KRS
189A.010(4)(c) is unconstitutional as it violates the Fifth,
Eighth, and Fourteenth Amendments of the United States
Constitution and Sections 2, 11, and 17 of the Kentucky
Constitution.
(4)
KRS 189A.010(4)(c) provides as follows:
Any person who violates the provisions
of paragraphs (1), (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 find not less than
five hundred dollars ($500) nor more
than one thousand ($1,000) and shall be
imprisoned in the county jail for not
less than thirty (30) days or 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. (Emphasis added.)
Under the above statute, the severity of punishment for
an individual charged with a third-offense DUI is dependent upon
his level of intoxication.
Simply put, if one has an alcohol
concentration below 0.18, the offense is a misdemeanor (a
potential penalty of 12 months), but if the alcohol concentration
is 0.18 or above, the offense is a felony (facing a sentence of
one year to five years in prison).
Because Evans faces the
potential of a much greater sentence as a felon due to her
alcohol concentration being 0.20 at the time of arrest, she
asserts the statute is unconstitutional for numerous reasons.
These constitutional attacks amount to but one assertion--that a
government may not subject its citizens to arbitrary, capricious,
and unreasonable legislation.
This Court recently addressed the
constitutional issues raised in this appeal in Cornelison v.
-2-
Commonwealth, Appeal No. 1999-CA-001825-MR, rendered July 7, 2000
(motion for discretionary review pending).
In Cornelison, the
Court thoroughly discussed the issues and constitutional attacks
raised by Evans herein and rejected them.
Although Evans raises
several interesting and challenging arguments in her motion
before the trial court and brief before this Court, she has
failed to maintain her burden of establishing that KRS
189A.010(4)(c) is unconstitutional.1
See Commonwealth v. Howard,
Ky., 969 S.W.2d 700 (1998).
For the foregoing reasons, the judgment of the
McCracken Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Appellate Public Advocate
Louisville, KY
A. B. Chandler, III
Attorney General
Matthew D. Nelson
Assistant Attorney General
Frankfort, KY
1
See Barker v. Commonwealth, Appeal No. 1999-CA-000500-MR,
rendered September 29, 2000, which also rejected a constitutional
challenge aimed at KRS 189A.010(4)(c).
-3-
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