TEJEDA (RODERICK A.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 25, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000663-DG
RODERICK A. TEJEDA
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 07-XX-00004
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, MOORE AND TAYLOR, JUDGES.
MOORE, JUDGE: This is an appeal by Roderick A. Tejeda of an Opinion entered
by the Laurel Circuit Court reversing and remanding a case that was dismissed by
the Laurel District Court. We granted discretionary review. On appeal, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 2006, Kentucky Vehicle Enforcement was notified
of an accident on I-75. Officer Toby Curry worked the accident scene and had
earlier received a complaint of a white Ford Mustang driving at a high rate of
speed and cutting in and out of traffic. While assisting with the accident, Officer
Curry observed a white Ford Mustang, matching the description from the earlier
complaint, maneuvering around road debris and eventually stalling. Officer Curry
then witnessed a semi-tractor trailer pushing the vehicle onto the shoulder of I-75
where the car came to a stop. Officer Curry asked Officer Bert Foster to assist the
vehicle. Officer Foster did so. The driver, Tejada, explained that his car had run
out of gas. Officer Foster agreed to call a wrecker for Tejada and returned to
working the accident.
Officer Foster informed Officer Curry that he thought he had detected
the smell of alcohol on Tejeda’s breath. Officer Curry later approached Tejeda’s
vehicle and smelled an odor of alcohol on Tejeda. He administered several field
sobriety tests which Tejeda was either unable to complete or “failed”. Tejeda
admitted in his testimony before the district court that when Officer Foster first
approached him, he was drinking and that he continued to do so. But, he denies
drinking prior to his car running out of gas. Tejeda was placed under arrest for
Improper Parking and Driving Under the Influence.
Tejeda’s case was first brought before the Laurel District Court on
charges of Driving Under the Influence and Improper Parking. Tejeda filed a
motion to “suppress any and all evidence regarding any and all statements made to
any police officers prior to his arrest” and to dismiss the complaint.
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The district court found that Tejeda was not in actual physical control
of an operable vehicle; therefore, he could not be convicted under KRS1 189A.010
for Driving Under the Influence. The district court dismissed that charge. Also,
because “KRS 189.450 clearly states that the prohibition in that statute does not
apply when a vehicle has become disabled in the right-of-way to such an extent
that it is impossible to avoid parking on the shoulder of the road,” the district court
dismissed the charge of Improper Parking. Consequently, all charges before the
district court were dismissed.
The Commonwealth appealed the district court’s dismissal to the
Laurel Circuit Court. The circuit court reversed, finding that the issue of whether
Tejeda was operating the vehicle while under the influence before it ran out of gas
was a factual issue for a jury to decide and remanded. Thereafter, Tejeda filed a
motion for discretionary review to the Court of Appeals. We granted the motion.
Tejeda argues that the district court’s findings of fact were supported
by substantial evidence and were not erroneous, therefore, the circuit court erred
when it applied its own findings of fact. Tejeda also asserts that the circuit court’s
de novo application of the law was clearly erroneous.
The Commonwealth asserts that the circuit court rightfully considered
all of the facts. Additionally, the Commonwealth claims that the district court’s
dismissal was erroneous as determined by the circuit court because Tejeda was in
1
Kentucky Revised Statutes.
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physical control and was operating a motor vehicle in contravention of KRS
189A.010.
II. STANDARD OF REVIEW
“Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” CR2 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444
(Ky. 1986). A factual finding is not clearly erroneous if it is supported by
substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d
409, 414 (Ky. 1998). Substantial evidence is evidence of substance and relevant
consequence sufficient to induce conviction in the minds of reasonable people. Id.
We, of course, review issues of law de novo.
III. ANALYSIS
The issue before the Court is whether or not probable cause existed to
make an investigatory “stop” of Tejeda’s vehicle. In order for a police officer to
make an investigatory stop, he must have reasonable suspicion that a person has
committed or is committing a crime. Collins v. Commonwealth, 142 S.W.3d 113,
115 (Ky. 2004); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968). To determine whether reasonable suspicion exists, we examine the facts
under the totality of the circumstances. Taylor v. Commonwealth, 987 S.W. 2d
302, 305 (Ky. 1998). In determining probable cause when there is a question of
whether the defendant was driving, factors to be considered are: “(1) whether or
2
Kentucky Rule of Civil Procedure.
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not the person in the vehicle was asleep or awake; (2) whether or not the motor
was running; (3) the location of the vehicle and all the circumstances bearing on
how the vehicle arrived at the location; and (4) the intent of the person behind the
wheel.” Wells v. Commonwealth, 709 S.W. 2d 847, 849 (Ky. App. 1986).
However, this Court has determined that the Wells factors are not exclusive and
that probable cause is “a fluid concept – turning on the assessment of probabilities
in particular factual contexts.” White v. Commonwealth, 132 S.W.3d 877, 883
(Ky. App. 2003).
In White, probable cause was found to arrest the defendant for driving
under the influence where no one saw the defendant operating the vehicle and the
vehicle was found unoccupied and inoperable in a roadway. Id. Despite the
defendant’s never admitting to driving the vehicle or to consuming alcohol, the
Court found probable cause where the defendant walked to a nearby home to call
someone to pick him up and his statement that his wife would be upset to learn that
he had misplaced his truck. Id.
In this case, the Kentucky Vehicle Enforcement had received a
complaint that a driver of a white Ford Mustang was driving erratically in the
vicinity of the accident on I-75. Tejeda’s vehicle matched the description and was
in the reported area. Officer Curry was aware of the earlier complaint and
witnessed the vehicle being pushed onto the shoulder by a semi-tractor trailer. He
asked Officer Foster to check on the situation. When Officer Foster approached
the vehicle, he thought he smelled alcohol on Tejeda. Although the timing of
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Tejeda’s consumption of alcohol is disputed, Tejeda freely admitted to consuming
alcohol while inside the vehicle and at the time when Officer Foster first
approached him.
Similar to White, the Officers in this case were not aware of the timing
of the alcohol consumption, and that is certainly a debatable question. However,
given (1) the earlier complaint of a vehicle matching Tejeda’s driving erratically;
(2) Officer Curry witnessing Tejeda’s vehicle being pushed to the side of a road by
a semi-tractor trailer; (3) Officer Foster’s belief that he smelled alcohol on
Tejeda’s breath when he first approached him; (4) Officer Curry’s detection of
alcohol on Tejeda’s breath; and (5) considering the totality of the circumstances,
there existed reasonable suspicion of criminal activity necessary to justify the
questioning of Tejeda, administering sobriety tests to him, and the subsequent
arrest. Thus, we agree with the circuit court that probable cause existed for the
officers to believe that Tejeda had operated the vehicle while under the influence.
It will be up to a jury to determine whether or not it believes the evidence shows
beyond a reasonable doubt that Tejeda was operating a motor vehicle while under
the influence before it became inoperable.
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court and remand to
the district court for further proceedings in accordance with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas G. Simmons
Monticello, Kentucky
Jack Conway
Attorney General
Elmer Cunnagin, Jr.
Special Assistant Attorney General
London, Kentucky
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