Rogers v. Wilhelm-Olsen, 748 S.W.2d 671 (Ky. Ct. App. 1988)
Decided on April 1, 1988 by the Kentucky Court of Appeals
An issue of first impression for the court. The "blackout" defense is a complete defense against negligence: Where the driver of a motor vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of the vehicle while so incapacitated.
However, once a prima facie case of negligence has been made against the defendant he must demonstrate that the sudden illness or incapacity could not have been anticipated or foreseen.
The Court adopt[ed] this 'blackout' defense in this case. Where a defendant demonstrates that he suddenly became incapacitated while driving, and the ensuing accident was a result thereof, and further demonstrates that the sudden incapacity was not reasonably foreseeable, he shall have a defense to any liability that would otherwise arise from the accident.
The defense is unavailable where the defendant was put on notice of facts sufficient to cause an ordinary and reasonable person to anticipate that his or her driving might likely lead to the injury of others. The defense is neither available if at the time of the accident the incapacitated driver was violating a statutory duty such as to refrain from driving while intoxicated, or to drive within the posted speed limit.
"This is an affirmative defense which must be specially pleaded. Once the court is satisfied that the defendant had produced sufficient evidence of the defense to withstand a peremptory verdict, the question of liability thereon is a factual one for the jury to decide."
Royalty v. Commonwealth, 749 S.W.2d 700 (Ky. Ct. App. 1988)
Decided on May 13, 1988 by the Kentucky Court of Appeals
Defendant, having been convicted twice of DUI, has been tried and found guilty of DUI 3rd offense. His argument was that the third conviction should have been a second, because while the second was pending, a "third" DUI charge was plead to as a second. However, the court simply said that since the second DUI charge was plead to as third, chronologically, it constitutes a third offense conviction and therefore the result was proper by treating it as a third DUI conviction.
Arrested: Pled to/Found
FIRST December 1, 1982 FIRST December 28, 1982
THIRD February 14, 1986 SECOND April 21, 1986
SECOND May 11, 1985 THIRD November 10, 1986
Heath v. Commonwealth, 761 S.W.2d 630 (Ky. Ct. App. 1988)
Decided on October 28, 1988 by the Kentucky Court of Appeals
Although a farm tractor is not a 'motor vehicle' as defined in KRS 189.010(18), the court said that the Defendant was driving a tractor at 1:30 a.m. on a public highway while drunk. The breathalyzer reading was .16. And it "would seem to be a gross distortion of the intent of the referred to statutes to hold that the appellant was not guilty of drunk driving."
The 'exemption' of farm tractors was intended to "exclude farm tractors from rigid requirements as to equipment but it did not intend that tractors could operate on public highways without regard to rules of safety, including the duty to give proper signals, et cetera." Davidson v. Moore, 340 S.W.2d 227, 230 (Ky. 1960).
Therefore, the Defendant was properly convicted of DUI per KRS 189A.010.
Asher v. Commonwealth, 763 S.W.2d 153 (Ky. Ct. App. 1988)
Decided on December 29, 1988 by the Kentucky Court of Appeals
Question Presented: Is the Commonwealth entitled to introduce evidence, in its case in chief, for DUI in a trial on a subsequent DUI charge when the defendant, prior to trial, agreed to stipulate that the penalties to be applied by the jury will be the same enhanced penalties applicable to a conviction on a subsequent offense.
A Defendant is not entitled to a bifurcated trial on a DUI second (or other subsequent offense). A possible way to alleviate the prejudice of prior convictions is by "admonishing the jury that the prior conviction should be given no weight in their deliberations as to the defendant's guilt."
OVERRULED BY: Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996) ("In summary, we hold that KRS 189A.010(1) contains the elements of the crime of DUI. KRS 189A.010(4) is the penalty portion of the DUI statute and does not create additional crimes. Due to the prejudicial effect, prior DUI convictions shall not be introduced during the prosecution's case-in-chief for a violation of KRS 189A.010(1)"); and Dedic v. Commonwealth, Ky. 920 S.W.2d 878 (1996) ("It is a fundamental principle that the introduction of a previous conviction during the process of determining guilt or innocence is prejudicial. ... Therefore, we hold that in misdemeanor DUI trials, evidence of previous DUI convictions shall not be introduced until a guilty verdict is rendered on the underlying charge. … [T]his Court orders the District Courts to bifurcate misdemeanor DUI trials.")
Tipton v. Commonwealth, 770 S.W.2d 239 (Ky. Ct. App. 1989)
Decided on March 24, 1989 by the Kentucky Court of Appeals
2 important rules came out of this decision:
Suttle v. Commonwealth of Kentucky - 3/31/1989 CITE: 774 S.W.2d 454 (Ky. App. 1989).
"[E]nhancement of DUI punishment can only be had by the use of prior DUI convictions obtained in this state. The prohibited activity is driving under the influence in Kentucky. Anyone who engages in this prohibited activity 'anywhere in this state' is subject to punishment. KRS 189A.010(2). Multiple violations of this prohibition can result in the enhancement of punishment upon subsequent convictions. In either case, however, the actor must have engaged in the prohibited activity while in this state."
Therefore, a previous Tennessee DUI conviction cannot be used for enhancement purposes for a DUI committed in Kentucky.
OVERRULED by Baker v. Commonwealth, 2005-CA-000021-MR: "KRS 189A.010(4)(e) provides that 'prior offenses shall include all convictions in this state, and any other state…' This section was added to the statute by the Legislature, presumably in response to our decision in Suttle v. Commonwealth, 774 S.W.2d 454 (Ky.App. 1989). That addition to the statute specifically overruled Suttle." (Emphasis added).
KRS 189A.010(5)(e) states that "For purposes of this subsection, prior offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one's driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated, but shall not include convictions for violating [the Kiddie DUI subsection]." (Emphasis added).
Hayden v. Commonwealth of Kentucky - 3/31/1989
This case discusses "under the influence" and "impair driving ability language" with regard to the elements the CW must prove in a DUI case. The court concluded that "there are but two (2) essential elements: 1) operation of a motor vehicle; 2) while under the influence of alcohol." The "impair one's driving ability" refers to 'other substances' and is not an element of the offense of an alcohol DUI.
Sutton v. Transportation Cabinet - 4/7/1989
D wanted to complete a program under the KRS (not available today) reducing his license suspension from 6 months to 30 days. He had a DUI in Indiana. KY Transp. Cabinet refused to grant his request saying his DUI was a 'second' offense. The Court disagreed and stated, similar to Suttle above, that a DUI in Indiana is not a conviction under the KRS, and cannot therefore be considered when assessing penalties in Kentucky.
Also, just like Suttle, this case was OVERRULED by Baker v. Commonwealth, 2005-CA-000021-MR: "KRS 189A.010(4)(e) provides that 'prior offenses shall include all convictions in this state, and any other state…' This section was added to the statute by the Legislature, presumably in response to our decision in Suttle v. Commonwealth, 774 S.W.2d 454 (Ky.App. 1989). That addition to the statute specifically overruled Suttle." (Emphasis added).
Commonwealth of Kentucky Transportation Cabinet Department of Vehicle Regulation v. Cornell - 9/21/1990
D has no right to consult with counsel prior to the administration of the Breath test.
This case was overruled the following year by KRS 189a.105(3) (arguably RCr 2.14 and Section 11 of the Kentucky Constitution could have been used in this case, but they were not…)
Pence v. Commonwealth of Kentucky - 9/6/1991
A spinoff of the Wells decision, here D was found in a parking lot inside his running vehicle. Somebody called in claiming that D followed someone in his vehicle. The Court of Appeals found that the D was indeed intoxicated and that he indeed operated his vehicle at some point previously. However, the court said that there was not enough evidence to show BRD that the D was operating his motor vehicle while intoxicated which is required by the DUI statute; as when the officer showed up, the D was in a parking lot and not moving, the engine was not on, or even warm, no evidence of an ignition key turned on, and no evidence of D planning to move his vehicle. Another vehicle was in fact parked behind the D blocking him from exiting the parking spot. The Court reversed and remanded the case back to the Trial Court.
OVERRULED in part by Blades v. Commonwealth - "Moreover, we are of the opinion that Pence is flawed because it erroneously requires a greater degree of certainty in DUI cases than is required in other areas of the law. It is well-settled that a jury may make reasonable inferences from the evidence. … We fail to logically perceive a rational differentiation between the inferences that may be drawn in DUI cases of this nature and other crimes. Clearly, if inferences from circumstantial evidence are sufficient to convict in felony crimes,  a fortiori circumstantial evidence and reasonable inferences therefrom are sufficient for a jury conviction of a misdemeanor offense, as is present in this case. Thus, we overrule Pence to the extent that it requires a heightened level of evidence in order to be submitted to the jury."
Allen v. Commonwealth of Kentucky - 10/25/1991
This seminal case discusses the use and admissibility of a PBT as well as the preservation of blood samples.