NELSON LOPEZ V COMMONWEALTH OF KENTUCKY
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RENDERED : OCTOBER 20, 2005
TO BE PUBLISHED
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2003-SC-0878-DG
NELSON LOPEZ
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2003-CA-1332
FAYETTE DISTRICT COURT NO. 03-XX-4
V
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING
A Fayette District Court jury convicted Appellant, Nelson Lopez, of operating a
motor vehicle with alcohol concentration of or above 0 .08, KRS 189A.01 0(i)(a), and he
was sentenced to twenty-one days in jail (reduced to ten days) and a $500.00 fine . His
appeal arrives in this Court in an unusual posture . The only issue presented to us is
whether the district court properly instructed the jury on this offense as redefined by the
2000 General Assembly. Appellant, who was convicted under the instruction, claims
the instruction was proper. The Commonwealth, which obtained Appellant's conviction
under the instruction, claims it was improper . The instruction was as follows :
You will find the defendant guilty if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following :
(A)
That in this county on or about October 11, 2002, the defendant
was operating or in physical control of a motor vehicle ;
AND
(B)
That while so doing his blood alcohol concentration was .08 or
greater;
AND
(C)
The sample of the Defendant's breath was taken within two hours
of cessation of the operation or physical control of the motor
vehicle .
Following his conviction, Appellant appealed to the Fayette Circuit Court,
asserting that (1) the district court erroneously permitted the Commonwealth to
introduce a videotape of his field sobriety test performed immediately prior to his arrest
and approximately one hour before his blood alcohol test; and (2) the district court
erroneously allowed the prosecutor to tell the jury during her opening statement and
closing argument that the jury could convict Appellant of the offense if his blood alcohol
content was 0 .08 at the time of the blood alcohol test, regardless of what it may have
been at the time he was operating his motor vehicle . Although the Commonwealth had
objected to the instruction given by the district court, it did not cross-appeal on that
issue .
The circuit court held that it was reversible error to permit the Commonwealth to
introduce the videotape of the field sobriety test because, except for operating a motor
vehicle, the only element of this offense is having a blood alcohol concentration of 0 .08
or more. The circuit court reasoned that, since Appellant did not argue that his blood
alcohol level registered 0 .08 because of a malfunctioning machine (rather than
intoxication), the field sobriety test was irrelevant.' The circuit court then held that the
statements by the prosecutor were not erroneous under the 2000 version of the statute,
' See generally Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky. App. 2002) (construing
the pre-2000 version of the statute), for an accurate analysis of this issue.
-2-
but that the instruction was erroneous, and directed the district court upon retrial to
instruct the jury in accordance with the 2000 amendment of the statute.
Appellant filed a motion for the Court of Appeals to take discretionary review of
the instruction issue. The Commonwealth did not file a cross-motion with respect to the
circuit court's reversal for a new trial because of the admission of the field sobriety test.
When the Court of Appeals denied discretionary review, Appellant moved this Court to
take discretionary review of the instruction issue. Again, the Commonwealth did not file
a cross-motion for discretionary review . Thus, the circuit court's reversal for a new trial
because of the admission of the field sobriety test is not an issue before this Court.
Green River Dist. Health Dep't v. Wigginton , 764 S.W.2d 475, 479 (Ky. 1989),
superseded by statute on other grounds as stated in Withers v. Univ . of Ky. , 939 S.W.2d
340, 344-45 (Ky. 1997) . This case will be retried . The only issue before us is how to
properly instruct the jury upon retrial .
KRS 189A.01 0(1)(a), as amended by the 1991 General Assembly, was entitled
"AN ACT relating to driving while impaired," and provided :
(1)
No person shall operate or be in physical control of a motor vehicle
anywhere in this state :
(a) While the alcohol concentration in his blood or breath is 0.10 or
more based on the definition of alcohol concentration in Section 1
of this Act [KRS 189A.005].
1991 Ky. Acts (1st extra . sess .), ch . 15, § 2. As compiled, the statute was entitled
"Operating motor vehicle with alcohol concentration of or above 0.10 . . . ." (Emphasis
added.)
As amended by the 2000 General Assembly, KRS 189A.010(1) and (2) provide :
(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;
(2)
. . . [I]f 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 .
2000 Ky . Acts, ch . 467, § 2 . The title of the amended Act was "AN ACT relating to
crimes and punishments." The title of the statute as compiled was changed only to
read, "Operating motor vehicle with alcohol concentration of or above 0.08 . . .
(Emphasis added.)
The Commonwealth asserts and the Fayette Circuit Court agreed that the 2000
amendment of KRS 189A .010 criminalized having a blood alcohol content of 0.08 or
more at the time the accused's blood or breath was tested, so long as the test was
conducted within two hours of cessation of driving . Thus, the Commonwealth claims
the instruction should properly read :
You will find the defendant guilty if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
(A)
That in this county on or about October 11, 2002, the defendant
was operating or in physical control of a motor vehicle ;
AND
(B)
The defendant had a blood alcohol concentration of 0.08 or above
as measured by a scientifically reliable test or tests of a sample of
2 We are not asked here to determine the constitutionality of KRS 189A.010(2) . But
see Manns v. Commonwealth , 80 S .W.3d 439, 445-46 (Ky . 2002) (holding
unconstitutional statute that purported to unilaterally amend the Kentucky Rules of
Evidence) .
the person's breath or blood taken within two (2) hours of cessation
of operation or physical control of a motor vehicle.
(Emphasis added.)
The parties agree that if the test is not taken within two hours of cessation of
operation or physical control of a motor vehicle, the Commonwealth cannot prosecute
under KRS 189A .010(1)(a) but must proceed under KRS 189A.010(1)(b) 3 or (d) . 4
Assuming the test was taken within two hours of cessation of operation of a motor
vehicle, the issue becomes whether the statute prohibits having a blood alcohol content
of 0.08 or more while operating a motor vehicle or by having a blood alcohol content of
0.08 or more while taking the blood alcohol test.
In his brief and at oral argument, Appellant posited several scenarios in which a
person could be convicted of having a blood alcohol content of 0 .08 or more while
taking the blood alcohol test even though the person had a lower blood alcohol level, or
no blood alcohol level at all, when he or she ceased operating a motor vehicle less than
two hours prior to taking the test . E (1) a person's vehicle breaks down on the
.,
.g
highway and he consumes alcohol while awaiting assistance ; (2) a person is involved in
a hit-and-run accident on his way home from work and consumes alcohol at home
during the interim before the police arrive ; or (3) a person drives to a bar and consumes
alcohol, then is arrested at the bar for disorderly conduct.
Appellant also claims (but offered no proof at trial) that as much as sixty to ninety
minutes can expire after alcohol is consumed before it is actually absorbed into the
blood stream . A test conducted in this interim might show a blood alcohol level of 0 .08
3 KRS 189A .01 0(1)(b) prohibits the operation of a motor vehicle "[w]hile under the
influence of alcohol ."
4 KRS 189A .01 0(1)(d) prohibits the operation of a motor vehicle "[w]hile under the
combined influence of alcohol and any other substance which impairs one's driving
ability."
at the time of the test whereas the blood alcohol level was less than 0.08 at the time of
operation of a motor vehicle. We held in Commonwealth v. Wirth, 936 S .W.2d 78 (Ky.
1996), that the Commonwealth does not have to produce an expert witness to
extrapolate the blood alcohol level back from the time of the blood alcohol test to the
time the accused ceased operation of the motor vehicle. Id. at 83-84 . However, that
does not mean the accused cannot introduce such evidence, if such exists and it would
tend to be exculpatory.
We conclude that the Fayette Circuit Court misconstrued the 2000 amendment of
the statute . The General Assembly intended to criminalize the existence of a blood
alcohol concentration of 0.08 or more only if the accused was then operating or in
physical control of a motor vehicle . The addition of the two-hour time limitation was
intended only to prescribe the period in which a blood alcohol test must be administered
in order to sustain a conviction solely on the basis of the results of the test. Substitution
of the word "having" for "while" is of no consequence. If there were no other
subsections of the statue, it would no doubt read : "A person having an alcohol
concentration of 0 .08 or more . . . shall not operate or be in physical control of a motor
vehicle anywhere in this state." The only two elements of this offense are (1) having a
blood alcohol concentration of 0 .08 or more and (2) operating or being in physical
control of a motor vehicle . Cf . Hayden v. Commonwealth , 766 S.W .2d 956 (Ky. App.
1989). Those two elements must coincide . If the Commonwealth believes it cannot
prove that the accused's blood alcohol concentration was 0.08 at the time he was
operating a motor vehicle, it can opt to proceed under one of the alternative theories
5 Appellant conceded at oral argument that the issue can only arise if the blood alcohol
content is between 0.08 and approximately 0.10, because the blood alcohol content
generally would not increase more than 0.02 in a two-hour waiting period .
-6-
provided by the statute . Under KRS 189A.020(1)(b) and (d), the blood alcohol
concentration creates only an evidentiary presumption whereas under KRS
189A .020(1)(a), it is an element of the offense . King v. Commonwealth , 875 S.W.2d
902, 902 (Ky. App. 1993) .
Our conclusion in this regard means that the jury instruction given by the Fayette
District Court was not fatally flawed and that the prosecutor should not have been
permitted to tell the jury that Appellant's blood alcohol concentration did not have to be
0 .08 or more at the time he was operating his motor vehicle so long as it was at that
level when the test was administered . Though not given in the exact language of the
statute, elements (A) and (B) of the instruction required the jury to find beyond a
reasonable doubt that Appellant had a blood alcohol concentration of 0.08 or more at
the time he was operating or in physical control of a motor vehicle . Element (C) with
respect to the two-hour time limit was uncontested and presumably included in the
instruction out of an abundance of caution . Unfortunately, it was Part (C) that the
prosecutor used to support her erroneous closing argument. Nothing would preclude
the parties from stipulating to this issue to avoid confusing the jury.
Accordingly, we reverse the Fayette Circuit Court and hold that the Fayette
District Court properly instructed the jury but erroneously failed to sustain the objections
to the prosecutor's opening statement and closing argument. We remand this case to
the Fayette District Court for retrial in accordance with this opinion and with the Fayette
Circuit Court's ruling on the evidence issue .
Lambert, C.J . ; Graves, Johnstone, Roach, and Scott, JJ ., concur.
Wintersheimer, J ., concurs in result only without opinion .
COUNSEL FOR APPELLANT :
Fred E. Peters
Ashley Rogers Dye
226 East High Street
P .O. Box 2043
Lexington, KY 40594-2043
COUNSEL FOR APPELLEE:
Gregory D . Stumbo
Attorney General
State Capitol
Frankfort, KY 40601
Leigh A. P . Honaker
Assistant Fayette County Attorney
Suite 700
163 West Short Street
Lexington, KY 40507
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