SCOTT G. BASHAM v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000919-MR
SCOTT G. BASHAM
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 99-CR-00623
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE:
Scott G. Basham appeals from a judgment of
the Kenton Circuit Court wherein he entered a conditional guilty
plea and was sentenced to five years in prison for the offense of
operating a motor vehicle under the influence of alcohol or other
substances (DUI), third offense, enhanced to felony status due to
a blood alcohol level of 0.18 or greater.
In this appeal, Basham
challenges the constitutionality of the statute under which he
was convicted, KRS1 189A.010(4)(c).
to be constitutional, we affirm.
1
Kentucky Revised Statutes.
Because we hold the statute
Basham was arrested at the scene of a vehicle accident
on October 22, 1999, and was charged with third-offense DUI.
He
was read an implied consent warning and was administered a
breathalyzer test which registered a blood alcohol content of
0.336.
Although third-offense DUI is normally a misdemeanor
under the statute, it becomes a Class D felony if the blood
alcohol level is 0.18 or higher.
KRS 189A.010(4)(c).
Thus,
Basham’s case went before the grand jury, and he was subsequently
indicted on the felony charge.
Prior to entering his conditional guilty plea, Basham
moved the trial court to find the statute to be
unconstitutional.
The trial court denied Basham’s motion, and he
subsequently entered a conditional guilty plea reserving his
right to challenge the statute’s constitutionality.
On April 5,
2000, Basham was sentenced to five years in prison for the
offense, but his sentence was probated for a five-year period on
various conditions, including that he serve ninety days in the
Kenton County Detention Center.
This appeal followed.
Basham has raised several constitutional challenges to
the statute.
He contends that it violates equal protection
rights, is arbitrary, constitutes cruel and excessive punishment,
and violates the proscription against ex post facto laws.
These
same constitutional challenges to KRS 189A.010(4)(c) were raised
in Cornelison v. Com., 1999-CA-001825-MR, an opinion rendered by
this court on July 7, 2000.2
Therein, a panel of this court held
2
A motion for discretionary review was granted by the
Kentucky Supreme Court on December 13, 2000. See 2000-SC-0646-2-
the statute to be constitutional.
The Cornelison case is
dispositive of the issue in this case, and we adopt the reasoning
and holding of the court in that case.
Basham raises an additional argument that the implied
consent warning was deficient in that it failed to inform him
that by refusing to submit to a blood alcohol test he would have
avoided the enhancing effect of registering an intoxication level
of 0.18 or greater.
This court addressed the argument that the
implied consent warning was deficient as it applies to thirdoffense DUI offenders in Barker v. Com., 32 S.W.3d 515 (2000).
Therein, we rejected the constitutional challenge and likewise
reject it herein for the reasons set forth in that case.
The judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John G. Arnett
Florence, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
2
(...continued)
DG.
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
