CHARLES E. BIGGERS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 9, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001444-MR
CHARLES E. BIGGERS
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
ACTION NO. 00-CR-00108
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Charles E. Biggers (Biggers) appeals from the
judgment of conviction entered by the Henderson Circuit Court on
June 7, 2000, for operating a motor vehicle under the influence
(DUI) third offense, with an alcohol concentration of 0.18 or
above [KRS 189A.010(4)(c)].1
Biggers entered a conditional plea
of guilty pursuant to RCr 8.09.
We affirm.
The sole issue in this appeal is whether KRS 189A.010(4)(c)
is unconstitutional as it violates the Fifth, Eighth, and
1
Biggers also entered a guilty plea to possession of
marijuana and received a concurrent tweleve (12) month sentence.
The plea to the marijuana charge was not appealed.
Fourteenth Amendments to the United States Constitution and
Sections 2, 11, and 17 of the Kentucky Constitution.
KRS
189A.010(4)(c) provides as follows:
(4)
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 fined 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 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. (Emphasis added).
Biggers’ contention that KRS 189A.010(4)(c) is
unconstitutional has been recently addressed by this Court.
The
cases of Cornelison v. Commonwealth, Appeal No. 1999-CA-001825MR, a to-be-published opinion rendered July 7, 2000, motion for
discretionary review granted December 13, 2000 (47 Ky. L. Sum. 7
(2000)) and Barker v. Commonwealth, Appeal No. 1999-CA-000500-MR,
an unpublished opinion rendered September 29, 2000 (47 Ky. L.
Sum. 11 (2000)), rejected a similar constitutional challenge
aimed at KRS 189A.010(4)(c).
Both Cornelison and Barker
discussed the claims raised herein that the DUI statute is
arbitrary, capricious and unreasonable legislation.
We believe
both Cornelison and Barker are dispositive on this issue and that
Biggers has failed to maintain his burden of establishing that
-2-
KRS 189A.010(4)(c) is unconstitutional.
See Commonwealth v.
Howard, Ky., 969 S.W.2d 700 (1998).
The judgment entered by the Henderson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Franklin P. Jewell
Louisville, KY
A. B. Chandler, III
Attorney General
Elizabeth A. Heilman
Assistant Attorney General
Frankfort, KY
-3-
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