VELTROP (MELISSA KAY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 1, 2008; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000385-DG
MELISSA KAY VELTROP
v.
APPELLANT
ON DISCRETIONARY REVIEW
FROM BARREN CIRCUIT COURT
HONORABLE PHIL PATTON, JUDGE
ACTION NO. 06-XX-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
BUCKINGHAM, SENIOR JUDGE: Melissa Kay Veltrop entered a conditional
plea of guilty to driving under the influence, first offense, in violation of Kentucky
Revised Statutes (KRS) 189A.010. She reserved the issue of whether KRS
189A.010(2) is unconstitutional because, she alleges, it violates the separation of
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
powers principle by unilaterally adopting amendments or additions to the
Kentucky Rules of Evidence (KRE). We conclude that Veltrop has not suffered
any injury by the application of the statute and thus lacks standing to challenge its
constitutionality. Therefore, we affirm.
Veltrop was observed operating a motor vehicle in Barren County at
1:24 a.m. on October 2, 2005, by a member of the Glasgow police department.
She admitted to consuming a quantity of alcoholic beverages, and she failed a
series of field sobriety tests. She was placed in custody at 1:55 a.m. and taken to
jail. A breath sample was obtained and tested at 2:35 a.m., showing she had a
blood/alcohol concentration of .166 grams/210L, or over twice the legal limit.
After Veltrop was arraigned in the Barren District Court, entered a
plea of not guilty, and requested a jury trial, her attorney filed a motion to declare
KRS 189A.010(2) unconstitutional.2 The district court denied the motion but
granted her request to enter a conditional plea of guilty pending the outcome of an
appeal to the Barren Circuit Court.
The circuit court affirmed the order of the district court, stating that
there is “a strong presumption that acts of the General Assembly are
constitutional.” The circuit court, sitting as an appellate court, found “nothing in
the record that would overcome this presumption.” We thereafter granted
discretionary review.
The relevant portion of KRS 189A.010 states as follows:
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Veltrop has since abandoned constitutional challenges to other portions of KRS 189A.010 that
she had raised in her motion.
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(1) A person shall not operate or be in physical control
of a motor vehicle anywhere in the state:
(a) Having an alcohol concentration of 0.08
or more as measured by a scientifically
reliable test or tests of a sample of the
person’s breath or blood taken within two
(2) hours of cessation of operation or
physical control of a motor vehicle;
....
(2) With the exception of the results of the tests
administered pursuant to KRS 189A.103(7), if the sample
of the person’s blood or breath that is used to determine
the alcohol concentration thereof was obtained more than
two (2) hours after cessation of operation or physical
control of a motor vehicle, the results of the test or tests
shall be inadmissible as evidence in a prosecution under
subsection (1)(a) or (e) of this section. The results of the
test or tests, however, may be admissible in a prosecution
under subsection (1)(b) or (d) of this section.
KRS 189A.010(2).
Veltrop argues that KRS 189A.010(2) is unconstitutional because it
violates the separation of powers principle set forth in the Kentucky Constitution.
She refers to sections 27, 28, and 116 therein. Veltrop contends that KRS
189A.010(2) is an encroachment by the legislature on the power of the judicial
branch to make rules for practice and procedure in the courts.
“The powers of the government of the Commonwealth of Kentucky
shall be divided into three distinct departments[.]” Ky. Const. § 27. No unit of
government “shall exercise any power properly belong to either of the others,
except in instances hereinafter expressly directed or permitted.” Ky. Const. § 28.
“The Supreme Court shall have the power to prescribe . . . rules of practice and
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procedure for the Court of Justice.” Ky. Const. § 116. Whether evidence is
relevant to the facts of a case is within the exclusive confines of the “practice and
procedure” of the judicial branch of government. O’Bryan v. Hedgespeth, 892
S.W.2d 571, 576 (Ky. 1995).
The Commonwealth asserts that since Veltrop’s breath sample was
obtained one hour and eleven minutes after her cessation of operation of her motor
vehicle, she lacks standing to challenge the constitutionality of the statute. The
Commonwealth reasons that “even if Appellant were to prevail in having K.R.S.
189A.010(2) held unconstitutional, it would have no bearing on her case with her
breath sample having been obtained before the two hour mark.” Thus, the
Commonwealth asserts that Veltrop “can derive no benefit, nor avoid any
detriment, based on the outcome of whether K.R.S. 189A.010(2) is held
unconstitutional.”
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 2136, 119 L.Ed.2d 351 (1992), the U.S. Supreme Court stated as follows:
[T]he irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must have
suffered an “injury in fact” – an invasion of a legally
protected interest which is (a) concrete and
particularized, and (b) “actual or imminent, not
‘conjectural’ or ‘hypothetical.’ Second, there must be a
causal connection between the injury and the conduct
complained of – the injury has to be “fairly . . .
trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some
third party not before the court.” Third, it must be
“likely,” as opposed to merely “speculative,” that the
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injury will be “redressed by a favorable decision.”
(citations omitted)
In Akers v. Floyd County Fiscal Court, 556 S.W.2d 146 (Ky. 1977), the Kentucky
Supreme Court stated that “[i]t goes without saying that a person who is injured or
prejudiced by an unconstitutional law can complain of it.” Id. at 149.
In order for a person to be guilty of violating KRS 189A.010(1)(a), he
or she must have been operating or in physical control of a motor vehicle in this
state and must have had a blood alcohol concentration of 0.08 or more as registered
by a scientifically reliable test or tests of his or her breath or blood taken within
two hours of his or her cessation of operation or physical control of a motor
vehicle. See Lopez v. Commonwealth, 173 S.W.3d 905, 908 (Ky. 2005).
Furthermore, the two-hour limit in KRS 189A.010(1)(a) is an element of the
offense. Id. at 909. It is not a rule of evidence.
Veltrop contends that KRS 189A.010(2), which states that breath or
blood test results taken more than two hours following the cessation of the
operation or physical control over a vehicle are inadmissible, is unconstitutional as
a rule of evidence which violates the separation of powers principle. While this
portion of the statute may be unconstitutional as a rule of evidence,3 we fail to see
how Veltrop has standing to challenge it. See Lujan, supra; Akers, supra.
3
The Kentucky Supreme Court in the Lopez case noted that it was not therein being asked to
determine the constitutionality of KRS 189A.010(2). Nevertheless, it referenced Manns v.
Commonwealth, 80 S.W.3d 439, 445-46 (Ky. 2002), wherein it held unconstitutional a statute
that purported to unilaterally amend the Kentucky Rules of Civil Procedure. See Lopez, 173
S.W.3d at 907 n. 2.
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Veltrop’s test result was obtained well within the two-hour limit that
is set forth as an element of the offense in KRS 189A.010(1)(a). Because the test
result was within that time period, KRS 189A.010(2) had no relevance or
application to her case. She therefore could not have suffered any injury or harm.
See also Second St. Properties, Inc. v. Fiscal Court of Jefferson County, 445
S.W.2d 709, 716 (Ky. 1969); Merrick v. Smith, 347 S.W.2d 537, 538 (Ky.
1961)(“It is an elementary principle that constitutionality of a law or its application
is not open to challenge by a person or persons whose rights are not injured or
jeopardized thereby.”)
The judgment of the Barren Circuit Court is affirmed.
MOORE, JUDGE, CONCURS.
WINE, JUDGE, CONCURS, AND FILES SEPARATE OPINION.
WINE, JUDGE, CONCURRING: While I concur with the majority
opinion that Veltrop lacks standing to challenge the constitutionality of KRS
189A.010(2), it is apparent the Kentucky Supreme Court has questioned the
constitutionality of this provision. See Lopez v. Commonwealth, 173 S.W.3d 905,
907 (Ky. 2005). It would appear from a plain reading of KRS 189A.010(2), the
only party which may have standing to challenge this subsection would be the
County Attorney or Commonwealth Attorney should a trial court grant a motion to
suppress results obtained from a test more than two hours after the driver is
stopped. The prosecution might well argue that the rules addressing admissibility,
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relevance and expert testimony have been superseded by the legislative enactment
under KRS 189A.010(2).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Frankfort, Kentucky
James Robert Norris
Special Assistant Attorney General
Glasgow, Kentucky
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