COMMONWEALTH OF KENTUCKY V JOSHUA REYNOLDS
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RENDERED : JUNE 17, 2004
TO BE PUBLISHED
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2003-SC-0154-CL
COMMONWEALTH OF KENTUCKY
FROM CAMPBELL DISTRICT COURT
HON . GREGORY T. POPOVICH, JUDGE
NO . 02-T-01099
V
JOSHUA REYNOLDS
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
CERTIFYING THE LAW
Pursuant to CR 76.37(10), the Commonwealth sought certification of the
law on issues regarding Driving Under the Influence ("DUI") prosecutions of persons
under the age of twenty-one, and this Court granted the certification request . The
precise issue here is whether the Commonwealth may prosecute persons under the
age of twenty-one years only under KRS 189A.010(1)(e), which creates a per se
violation for having a significantly lower alcohol concentration than the standard per se
violation, or whether the Commonwealth may elect to prosecute persons under twentyone under the standard per se violation subsection, KRS 189A.01 0(l)(a) . The
Commonwealth claims detriment by being limited to prosecuting persons under the age
of twenty-one solely under (1)(e) because no enhanced penalty for prior convictions can
be imposed . KRS 189A.01 0(1)(a) requires proof of a higher alcohol concentration, but
it also permits enhanced penalties if the defendant has prior DUI convictions .
The relevant facts are as follows . On January 25, 2002, Respondent,
Joshua Reynolds, was charged with DUI under KRS 189A.010 . On February 12, 2002,
Reynolds moved the trial court to dismiss the charges because the Commonwealth
charged him under subsection (5)(a), which is not the charging subsection but rather
the penalty subsection . The Commonwealth responded and moved to amend the
charge, and proceed under KRS 189A.01 0(1)(a), (b), or (e). The parties stipulated the
following facts: (1) on January 25, 2002, Reynolds was under the age of twenty-one ;
(2) Reynolds was charged with a violation of KRS 189A.010(1), first offense ; and (3)
Reynolds, while operating a vehicle in Kentucky, had an alcohol concentration of more
than 0.08 percent.
In November of 2002, the trial court held that the Commonwealth could
not proceed pursuant to subsection (1)(a)' against Reynolds, because he was under
the age of twenty-one and for that reason the Commonwealth could only prosecute him
for a per se violation under subsection (1)(e) . The Commonwealth argued that
Commonwealth v. Wirth2 allowed it to elect to prosecute under multiple subsections, but
the trial court disagreed . On February 13, 2003, Reynolds entered a guilty plea under
KRS 189A.01 0(1)(e), and was sentenced pursuant to KRS 189A.010(7) under the
guidelines of KRS 189A .010(5) to a $250.00 fine and a 120-day license suspension .
In this certification proceeding, the Commonwealth contends that it should
be allowed to make the determination as to whether a person who is under the age of
twenty-one should be prosecuted under the per se violation subsections (1)(a) or (1)(e) .
Reynolds argues that the Commonwealth must proceed under KRS 189A.01 0(1)(e) if
Respondent conceded that the Commonwealth could proceed against him under
subsection (1)(b) .
2 Ky., 936 S .W.2d 78 (1997).
the person is under twenty-one years of age . Reynolds further argues that following the
amendment of KRS 189A .010 adding subsection (1)(e), the Commonwealth has been
denied an election to prosecute underage offenders under subsection (1)(a) . Both the
Commonwealth and Reynolds agree that convictions under subsection (1)(e) cannot be
used for enhancement purposes .
The General Assembly amended KRS 189A .010 and subsection (1) now
provides as follows:
(1) A person shall not operate or be in physical control of a
motor vehicle anywhere in this 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;
(b) While under the influence of alcohol ;
(c) While under the influence of any other substance or
combination of substances which impairs one's driving
ability;
(d) While under the combined influence of alcohol and any
other substance which impairs one's driving ability ; or
(e) Having an alcohol concentration of 0 .02 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,
if the person is under the age of twenty-one (21) .3
Subsection (1)(e) is known generally as the "Zero Tolerance" rule because it provides
for a per se DUI violation for persons under the age of twenty-one for having modest
levels of alcohol concentration . In combination with the amendment, the General
Assembly also added subsections that focus on punishment and those subsections
provide as follows :
(6) Any person who violates the provisions of subsection
(1)(e) of this section shall have his driving privilege or
operator's license suspended by the court for a period of
no less than thirty (30) days but no longer than six (6)
3 KRS 189A .010(1).
months, and the person shall be fined no less than one
hundred dollars ($100) and no more than five hundred
dollars ($500), or sentenced to twenty (20) hours of
community service in lieu of a fine . A person subject to
the penalties of this subsection shall not be subject to
penalties established in subsection (5) of this section or
any other penalty established pursuant to KRS Chapter
189A, except those established in KRS 189A .040(1).
(7) If the person is under the age of twenty-one (21) and
there was an alcohol concentration of 0 .08 or greater
based on the definition of alcohol concentration in KRS
189A .005, the person shall be subject to the penalties
established pursuant to subsection (5) of this section .a
Subsection (5) of KRS 189A .010 provides for harsher penalties than subsection (6),
and with the second and subsequent violation successively harsher penalties .
This Court has already upheld the validity of subsection (1)(e) . In
Commonwealth v. Howard , we held that KRS 189A .010(1)(e) was not unconstitutional
as such it "does not violate the Fourteenth Amendment to the United States
Constitution because it is rationally related to a legitimate state purpose .,,6 In
Commonwealth v. Wirth,' we addressed the issue of "whether the Commonwealth must
elect under which section of KRS 189A .010(1) it intends to proceed .,,8 In that case, the
Commonwealth desired to prosecute under subsections (1)(a) and (1)(b) . It was
determined that the newly created per se subsection "[did] not create a new or separate
offense, but merely provide[d] an additional means by which a motor vehicle alcohol
related offense may be committed."9 In Wirth , the Court allowed the Commonwealth to
pursue a conviction on both the per se subsections and the "under the influence"
KRS 189A .010(6) and (7).
5 Ky., 969 S .W .2d 700 (1998).
6 _Id . at 703.
Ky., 936 S.W.2d 78 (1997).
8 _Id. at 80.
9 Id.
4
subsection . In the interest of fairness we added a requirement that the Commonwealth
provide sufficient notice to the defendant.
While we do not agree with an interpretation that the statute or laws
requires an election as to which of the four statutory subsections will be
prosecuted to the exclusion of all others, it would appear that fundamental
fairness and appropriate trial preparation requires notice as to which
statutory subsections will be proven by the Commonwealth .' °
Accordingly, we held that the trial court erred by prohibiting the Commonwealth from
pursuing a conviction under multiple sections of KRS 189A.010(1).
Despite the central holding in Wirth that enactment of the per se violation
provision did not create a new or separate offense but merely provided an additional
means by which such an offense could be committed, the trial court believed Wirth did
not apply in the case of offenders under the age of twenty-one who have an alcohol
concentration of 0.02 or greater. On this point, the trial court may have been correct .
With prosecutions for per se violations under (1)(a) and "under the influence" violations
under (1)(b), there is a parallel purpose . That purpose is to punish alcohol-impaired
operators of motor vehicles and a legislative determination has been made that 0.08
alcohol concentration and being under the influence each constitute impairment . KRS
189A .010(1)(e) is somewhat discordant in that it fixes the level of alcohol concentration
at a low level and limits its application to persons who are under the age of twenty-one
years. One could argue that (1)(e) is more intensely focused on the age of the offender
than on impairment as the operator of a motor vehicle .
How ever one analyzes the statute with respect to purpose, our role is to
interpret the statutory language and determine the intent of the legislature as we
answer the certified question of law. When interpreting statutes, it is the duty of this
10 Id. at 81 .
Court to ascertain and effectuate the intent of the legislature .' We should not add or
subtract from the statute, nor should we interpret the statute to provide an absurd
result . The determination required by the statute here is whether subsections (1)(a)
and (1)(e) are both applicable to persons under the age of twenty-one . The per se
subsection (1)(e) applies only to persons under the age of twenty-one who have an
alcohol concentration of 0 .02 or more, and subsection (1)(a) applies to "person[(s)] . . .
having an alcohol concentration of 0.08 or more . . . ." There is no language in KRS
189A .010(1)(a) that limits its application to persons who are twenty-one years or more .
To reach another conclusion would require the addition of language or the discovery of
legislative intent not apparent from the enactment.
Our conclusion that one who is under twenty-one may be prosecuted
under subsection (1)(a) is strengthened by an analysis of the penalty provisions . The
punishment for a conviction under subsection (1)(e) is contained in subsection (6), yet
subsection (7), which is limited to persons under the age of twenty-one, directs
punishment for an alcohol concentration of 0 .08 or more under subsection (5) . This
directive reveals no intent of the legislature that persons under the age of twenty-one
with an alcohol concentration of 0 .08 or more be immunized from the severe penalties
of subsection (5). While subsection (5) does not recognize a conviction under (1)(e) as
punishable under that subsection, subsection (7) directs punishment of persons under
twenty-one with an alcohol concentration of 0 .08 or greater pursuant to subsection (5).
Thus, it follows that the legislature intended for persons under the age of twenty-one
" KRS 446.080(1) ; Beckham v. Board of Education of Jefferson County, Ky., 873
S .W .2d 575 (1994) ; Gateway Construction Co. v. Wallbaum , Ky., 356 S .W .2d 247
(1962).
who are convicted under (1)(a) to be punished under subsection (5) as is prescribed in
subsection (7).
Reynolds contends that subsection (1)(e) repealed by implication the
applicability of subsection (1)(a) to persons under the age of twenty-one . His argument
that the Commonwealth cannot proceed against a person under the age of twenty-one
under subsection (1)(a) presupposes that (1)(e) effected a repeal by implication . It is
well established that repeal by implication is strongly disfavored and will not be
discovered unless the statutes are disharmonious and a subsequent enactment
negates the former. 12 Here neither condition has been satisfied .
The various enactments in KRS 189A.010 et. seq., reveal an intent to
enforce strict rules relating to alcohol concentration and the operation of motor vehicles .
Persons under the age of twenty-one may be punished for having a lower alcohol
concentration than persons who are of age, but suffer less severe punishment for such
violations . However, there is no indication that the General Assembly intended that
persons under twenty-one be subject only to the lesser penalties of subsection (1)(e) .
As shown hereinabove, persons under the age of twenty-one who violate subsection
(1)(a) will be subject to the penalties prescribed in subsection (5).
Accordingly, to give effect to the entire statute, to not make any part of it a
nullity, and to not create an absurdity in its application, this Court determines that
subsection (1)(e) does not require all persons under the age of twenty-one to be
charged and convicted solely under KRS 189A.01 0(1)(e). Also, a person under the age
Caterpillar, Inc. v. Brock, Ky., 915 S.W.2d 751 (1996); see also Benjamin v. Goff , Ky.,
236 S .W.2d 905 (1951); Ruby Lumber Co. v. K .V. Johnson, Co. , 187 S.W .2d 449
(1945); Logsdon v. Howard , 280 Ky. 342, 133 S .W.2d 60 (1939); Lewis v. Mosely , 215
Ky. 573, 286 S .W. 793 (1926); Horton v. Horton , 185 Ky. 131, 214 S .W . 883 (1919);
Board of Education of Hopkins County v. Brooks, Ky. App ., 824 S.W .2d 431 (1992).
7
'2
of twenty-one with an alcohol concentration of 0.08 or more may be convicted under
KRS 189A.010(1)(a) . The Wirth decision allowing prosecution pursuant to KRS
189A.010 on the bases of multiple theories is still applicable and the Commonwealth is
required to give notice as to the subsections that it intends to prove .
The law is so certified .
All concur.
COUNSEL FOR APPELLANT :
Justin D . Verst
Campbell County Attorney
331 York Street
Newport, KY 41071
Robert E. List
Assistant Campbell County Attorney
526 Greenup Street
Covington, KY 41011
COUNSEL FOR APPELLEE:
Burr J . Travis
BUSALD FUNK ZEVELY, PSC
226 Main Street
Florence, KY 41042
John Palombi
Department of Public Advocacy
100 fair Oaks Lane, Suite 302
Frankfort, KY 40601
Dennis Stutsman
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
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