Barker v. Commonwealth

32 S.W.3d 515, 2000 Ky. App. LEXIS 111, 2000 WL 1433944
CourtCourt of Appeals of Kentucky
DecidedSeptember 29, 2000
DocketNo. 1999-CA-000500-MR
StatusPublished
Cited by2 cases

This text of 32 S.W.3d 515 (Barker v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barker v. Commonwealth, 32 S.W.3d 515, 2000 Ky. App. LEXIS 111, 2000 WL 1433944 (Ky. Ct. App. 2000).

Opinion

OPINION

BUCKINGHAM, Judge.

As the result of an arrest for operating a motor vehicle under the influence of alcohol (DUI), Steven Barker was convicted in the Clark County Circuit Court of DUI, [516]*516third offense (DUI III), which, by virtue of his blood alcohol level exceeding 0.18, is a Class D felony. KRS1 189A.010(4)(e). Barker argues that the operative statute is unconstitutionally vague and hence must be rendered void and that his conviction therefore must be vacated. Having reviewed and analyzed the applicable law, we affirm.

On October 18, 1998, Barker was arrested for suspected DUI and transported to the Clark County jail. He was administered a blood alcohol test which indicated a blood alcohol concentration of 0.26.2 Thereafter, Barker was indicted for DUI III, over 0.18, a felony.

Barker moved to suppress the blood alcohol results or to amend the charge to a misdemeanor. Following a hearing on the matter, the trial court denied Barker’s motion, finding nothing vague respecting the contents of KRS 189A.010 nor that the consent statute, KRS 189A.105, required a DUI suspect to be informed about the consequences of submitting to a blood alcohol test which results in a reading of 0.18 or greater. Thereafter, Barker entered a conditional guilty plea3 to the charge of DUI III over 0.18, which plea was accepted by the court. Barker was sentenced to one year of imprisonment, and this appeal followed.

Barker argues that when KRS 189A.010, the DUI presumptions and penalties statute, is construed with KRS 189A.105, the implied consent statute, an irreconcilable conflict results rendering the statutory scheme void-for-vagueness. Specifically, Barker points to KRS 189A.010(4)(c) which provides, in pertinent part:

If the alcohol concentration is below 0.18, for a third offense within a five (5) year period, [he or she shall] ... be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months.... If the alcohol concentration is 0.18 or above, he or she shall be guilty of a Class D felony.

Under the statute, a third time DUI offender 4 with a blood alcohol concentration of 0.18 or more is subject to a felony conviction whereas a misdemeanor conviction is imposed upon an equal recidivist whose blood alcohol concentration is below 0.18.

Barker contends that this subsection is incompatible with the consent statute as provided in KRS 189A.105. The essence of Barker’s contention is that since KRS 189A.105 requires a person to be informed of the repercussion of refusing to submit to a blood alcohol test, it is equally necessary that he or she be apprised of the consequence that submitting to the test can result in a felony offense for a third time offender should the results read 0.18 or above. The sum of Barker’s argument is that, under the statutory terms, the DUI suspect is not adequately informed of the consequences should the test results exceed 0.18, hence the statute is vague, rendering its enforcement arbitrary and capricious in violation of the United States and Kentucky Constitutions. We disagree.

Rather, the void-for-vagueness doctrine requires the penal statute to define the offense with such clarity as to inform persons of ordinary sense as to what conduct is prohibited while not leading to arbitrary or subjective enforcement. Covington v. Commonwealth, Ky.App., 849 S.W.2d 560, 563 (1992). In construing a statute, this court must consider “the purpose which the statute is intended to accomplish — the reason and spirit of the statute — the mischief intended to be [517]*517remedied.” City of Louisville v. Helman, Ky., 253 S.W.2d 598, 600 (1952).

Unquestionably, KRS 189A.010 provides that driving under the influence of alcohol or any other impairing substance or a combination thereof is prohibited. Specifically, subsection (4) operates as a recidivist provision in that it designates an enhanced penalty for each subsequent DUI offense committed within a five-year period. We believe this statute is sufficiently definite that it can be understood by ordinary persons.

Regarding the arbitrary enforcement prong, the legislature is required to provide “ ‘minimal guidelines’ to prevent a ‘standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ” Commonwealth v. Kash, Ky.App., 967 S.W.2d 37, 45 (1997) (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citation omitted)). It is this prong, we believe, that Barker claims to be triggered by the conjunction of KRS 189A.010(4)(c) and KRS 189A.105, that is, failure to adequately inform a third offense DUI suspect that acquiescing to the blood alcohol test can result in a felony conviction. We disagree.

KRS 189A.105 is part and parcel of a comprehensive statutory system, otherwise known as the “implied consent law.” Our legislature, like those of sister states, has addressed the serious problem of drinking and driving which is ever present throughout society. The scheme of the law is to provide an effective and efficacious method by which law enforcement can ascertain those DUI suspects who are or are not within the limits of the law and punish the violators. Beach v. Commonwealth, Ky., 927 S.W.2d 826, 827-28 (1996). In order to aid in the administration of the statute, the legislature incorporated an “implied” consent to submission of a blood, breath, or urine test for the purpose of determining alcohol/other impairing substance concentration. KRS 189A.103(1). This method allows for the best evidence of a suspect’s blood alcohol concentration and preservation thereof.

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Related

Lexington-Fayette Urban County Health Department v. Lloyd
115 S.W.3d 343 (Court of Appeals of Kentucky, 2003)
LEXINGTON-FAYETTE URBAN CTY HEALTH v. Lloyd
115 S.W.3d 343 (Court of Appeals of Kentucky, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
32 S.W.3d 515, 2000 Ky. App. LEXIS 111, 2000 WL 1433944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-commonwealth-kyctapp-2000.