Bradley Riffe v. Commonwealth of Kentucky

Opinion

IMPORTANT NOTICE . NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED/' PURSUANT TO THE RULES OF CIVIL PROCEDURE . PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY.COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·. RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT·WOULD ADEQUATELY·ADDRESS THE ISSUE BEFORE THE. COURT. OPINIONS CITED FOR CONS.IDERATION BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE . ACTION.

( RENDERED: SEPTEMBER 28, 2017 NOT TO BE PUBLISHED

BRADLEY RIFFE APPELLANT

ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2014-CA-001104 / FAYETTE CIRCUIT COURT NO. 13-T-19518

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM .OPINION OF THE COURT AND ORDER DISMISSING APPEAL

DISMISSING ·

Facing charges of third-offense driving under the influence of alcohol,.

Bradley. Riffe refu~ed to submit to the statutorily required alcohol concentration

test. A district court jury eventually acquitted Riffe of the DUI charge, and 19

days after the judgment of acquittal, the Commonwealth moved the trial court

to hold a license-suspension hearing based upon Riffe's initial refusal to take

the test. The trial court held the requested hearing and imposed the maximum

. license suspension allowed by law, 36 months. On appeal from this license

suspension, Riffe argued that the ·district court had lost lts jurisdiction over his

case because the Commonwealth did not timely file its motion for license suspension. Both the ~ircuit court and the Court of Appeals disagreed with

,Riffe and affirmed the district court's suspension ruling. We conclude that

today's case is moot.

I. FACTUAL AND PROCEDURAL BACKGROUND.

On August 31, 2013, a police officer stopped Riffe for speeding.

Suspecting Riffe of DUI, the officer administered a field sobriety test to Riffe,

which he failed. The officer placed Riffe under arrest and transported him to • . .

the detention center. When requested to submit to an In:toxilyzer test, Riffe

refused the test on advice of counsel. He was charged with speeding, having no

or expired registration plates, failing to maintain the required proof of

insurance-first offense, excessive window tinting, and DUI-third offense. In

conformity with KRS 189A.200(1)(a), at Riffe's arraignment on September 3,

2013, the trial court ordered a pretrial suspension of Riffe's driver's license for

his refusal to submit to the alcohol-concentration test ..

. Riffe's case proceeded to trial on October 16, 2013. The jury convicted

him of speeding but acquitted.him of the DUI charge. He pleaded guilty to the

charges regarding expired plates and· failure to have proof of insurance, and the

excessive .window tinting charge merged into the other charges.

Immediately following his acquittal arid the discharge of the. jury, Riffe's·

counsel orally moved th.e trial court to vacate the pretrial suspension of Riffe's

driver's license. A discussion ensued between the trial court and counsel

concerning the operation of the pretrial-suspension statute as applied to Riffe's

case. The trial court concluded the discussion by denying Riffe's request to lift

2 the suspension, directing counsel to "find me some law" on the issue and to

~file something."

The Commonwealth filed a motion 19 days post.judgment, asking the

· district court to hold a Iicense-suspensioffhearing under KRS 189A:l07(2). At

the hearing, Riffe stipulated that he had two previous DUls· within a fi~e-year

· period and he did not dispute that he refused the Intoxilyzer test. Riffe did not

contest.the trial court's jurisdiction over his case. Instead, he advocated for the ·

mjnimum statutory suspension, 24 months, while the Commonwealth sought

the maximum suspension of 36 months. The trial court granted the

Commonwealth's motion to suspend Riffe's license. for 36 months, expiring in

September of 2016. Riffe appealed to the circuit court from the order of·

suspension.

· The circuit court reviewed the district court's ruling a:nd affirmed. Riffe

argued at the circuit cot:trt level that when a defendant, who has refused the I . • . •

alcohol-concentration test, is acquitted of DUI charges, the Commonwealth

must move simultaneously with the entry of judgment to suspend the

·defendant's driver's license .. Riffe asserted that in this case, because of the

Commonwealth's failure to do so, the t.rial court lost jurisdiction over his case.

The circuit court held that the argume~t was without merit.

The Court of Appeals granted Riffe's motion for discretionary review and

affirmed the 36-month suspension. Once again, Riffe advanced the position

that the district court lacked jurisdiction to decide the case. The Court of

Appeals did not addres.s the issue in its analysis, reasoning the issue .involved

particular-case jurisdiction, which Riffe waived. 3 II. ANALYSIS

We are asked to interpret KRS 189A.107(2), and if we were to do so, it

would call for: statutory interpretation and a de novo standard of review .1

Instead, .we are constrained .to conclude the case is moot because Riffe's.

suspension expired no later than S~ptember of 2016.

This Court indulged.in an in-depth analysis of the mootness doctrine in

Morgan v.- Getter.2· While we found an exception to the mootness doctrine in

that case, it provides a thorough examination of the jurisprudential approach

taken in Kentucky with regard, to the mootness doctrine.

· As we noted in Getter, "[a] 'moot case' is one which seeks to get a

judgment ... upon some matter which, when rendered, for any reason, cannot

have . any practical legal effect upon a then existing . controversy." 3 That is the

case before us today. Riffe w~s given a 36-ino~th susp~nsion, which he asserts

was improper because the· district court did not have jurisdiction to issue such

a suspension. But that suspension expired well before our review. Even if we

w~re to agree with Riffe, it would have no effect, because he is no longer

restrained by a suspended lice:nse. It is a longstanding practice that "where,

pending appeal, an event occurs which .makes a determination of the que~tion

unnecessary oi:-. which would render the judgment that might be pronounced

1 SaintJosephHospi.taZ.v. Frye, 415 S.W.3d 631, 632 (l(y. 2013). 2 Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). a Id. (citing Benton v. Clay, 223 S.W. 1041 (Ky. 1921)). 4 ineffectual, the appeal . should be disI!lissed." 4 We do not. decide moot cases

because the role of our Cou.rt is not to give advisory opinions. s

But like many rules, there are exceptions that allow us to decide a case

even if the controversy . is moot. Unfo_rtunately . for Riffe, this case satisfies none

of these exc~ptions.

One such example of a tnootness exception is the collateral-

consequences exception. 6 Typically this exception _is invoked in a criminal case

where the criminal punishment may have already been served but there are

enduring consequences for the conviction, like the loss of civil rights as a result

of the conviction. 7 This continual loss of a right, for example the right to vote

for those over 18, keeps the appellant's claim justiciable and brings it outside .

of the mootness doctrine. Riffe does not suffer any collateral consequences to

his license suspension. He was acquitted on the DUI charge and does not

continue to suffer any consequences related to the license suspension.

A second exception to the mootness doctrine involves voluntary

cessation. B .Voluntary cessation draws a mootness exception because: it would

. allow parties to the litigation. to manipulate the appellate system. For exarriple, .

the aggrieved party could cease the activity in dispute,. have the appeal . .

dismissed, and then freely return to the disputed behavior. Riffe's claim that

4 Id. (quoting Louisville Transzt Cqmpany v. Department of Motor Transportation, 2~6 S.W. 536, 538 (Ky. 1956)). . s Id. (citation.s omitted). 6 Id. at 99. 1 Id. a Id. (citing United States v. W.T. Grant Company, 345 U.S. 629 (1953)). 5 the trial court did not have jurisdiction to issue his license suspension is not

the type of behavior .that the voluntary-cessation doctrine envisions.

The next tWo exceptions were commonly confused in our jurisprudence,

but this Court in Getter clearl:y: distinguished the two. The tw:o exceptions to the

mootness doctrine are those cases that are "capable of repetition, yet evading

review" and those that invite application. of the "public interest exception." Riffe

does not qualify for either exception, but we wiH discuss them below.

For the capable-qf.:.repetition-yet-evading-review exception to apply, two

elements must be satisfied: "the challenged action mus~ be too short in

duration to be fully litigated prior to its cessation or expiration, and (2) there

must be a reasonable expectation that the same complaining party will be

subjected to the same action again." 9 And while we do not believe Riffe satisfi~s

either element, it is clear that he doe-snot satisfy the second of the two ..

· The key to the second element is whether ·Riffe is suffering from a threat

of actual injury or protected interest, or is merely speculating about future

harm. Accordingly, "there must be a reasonable expeCtation and not merely a

physical or theoretical possibility, that the complaining party would be

subjected again to the same action." 10

An example satisfying the above exception is the plaintiff newspaper

companies in Lexington Herald-Leader Company v~ Meigs. 11 In Meigs, the trial

court denied newspapers access to individual voir dire of prospective jurors in

9 Id. (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992)). 10 Corpus Juris Secundum ;_ IA C.J.S. Actions § 82. ·11 Lexi.ngtonHerald-~eaderCompany v. Meigs, 660 S.W.2d 658 (Ky. 1983). 6 a criminal death -penalty case. The newspapers appealed, but before a decision

could be made on the merits by this Court, voir dire had already occurred,

making ariy ruling moot. After considering the fac~s of the case, we applied the . .

capable-of-repetition-yet-evading-review exception. In doing so, we recognized

that the complaining newspapers were likely to face a similar inst_ance in the

future, as it was their role to report the news, and criminal trials tend to be

newsworthy, and will continue to be so in the future. Accordi11gly, it was . . reasonable to believe that the news organizations would find themselves once . . ' again in the exact same position.

The likelihood that Riffe will be subjected to the same action he

complains of is quite attenuated. To accept that Riffe is under real threat of

the action in dispute being repeated would require us to believe that it is more

than just speculation that he will o_nce again be arrested for DUI, be acquitted

by ajury, and have a district court . issue a 36-month license-suspension . order

. more than 10 days after entry of the-judgment of acquittal. Having failed to

meet the second element, Riffe's controversy does not qualify for this mootness

exception.

The final mootness exception recognized in the Commonwealth is the

public-interest exception. The public interest exception requires three elements

to be met: "(I) the question presented is of a public nature; (2) there is a need

for an authoritative determination for the future guidance of public officers;

and (3) there is a likelihood of future recurrence of the question." 12 Inv_oking

· 12 Id. at 102 (citation omitted). 7 this exception requires the party asserting justiciability to show that "there is a·

rieed for an authoritative determination for the future guidance of public

officers." 13

At oral argument Riffe asserted that this Court should address the merits

of this case because lower courts would benefit from the guidance. But the fact

that lower courts would receive additional gu,idance is not sufficient to meet the . . public-interest exception. We must be careful not to construe ·this exception too

broadli and erode the timeworn and well-established mootness doctrine .

We applied the public-interest exception in Getter. In doing.so we

· .. explained. that the disputed. issue was a question "currently pertinent to a

substantial number of family court proceedings and an issue about which our

circuit courts addressing custody matters would benefif from guidance." 14

Aside from Riffe's assurances at oral argument that the application of KRS

189A.107(1)(a) to facts as presented in the case at hand, we have no reason to

believe th~t it is of such a frequent occurrence or that there is such a large

pending caseload of similarly situated individuals that failure to provide . .

guidance will lea.d to an improper license suspension. Therefore, Riffe does not

qualify for the public interest exception.

I / 13 Id. (quoting In re Alfred H.H., 910 N.E.2d 74, 80 (Ill. 2009)). 14 Id. at 103. 8 The Court ORDERS the case, being moot, is dimissed.

All sitting. All concur.

ENTERED: September 28, 2017.

CHI USTICEJOHN D. MINTON,. R.

COUNSEL FOR APPELLANT:

Fred E. Peters Rhey Denniston Mills Fred Peters Law Office ·

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Jacqueline Alexander Kenton County Attorney

Steven Paul Stadler ·Assistant Fayette County Attorney ( Janet Luo ·Fayette County Attorney