Opinion
NO. 2011-CA-002175-MR
05-10-2013
COMMONWEALTH OF KENTUCKY APPELLANT v. JULIE MUTH GOODMAN AND GWENDOLYN BROWN APPELLEES
BRIEF FOR APPELLANT: Steven P. Stadler Special Assistant Attorney General Lexington, Kentucky BRIEF FOR APPELLEE: Gene Lewter Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 11-CI-04947
OPINION
REMANDING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal from the Fayette Circuit Court's denial of a Writ of Prohibition involving the interpretation of Kentucky's Driving Under the Influence ("DUI") statute. Based upon the following, we will remand this case to the Fayette Circuit Court for findings of facts and conclusions of law.
FACTUAL BACKGROUND
Gwendolyn Brown was arrested for DUI on March 7, 2011, in Fayette County, Kentucky. Officer MJ Steele made the arrest and seized bottles of oxycodone and clonazapam from her purse. The officer observed on the arrest citation as follows:
The bottles of oxycodone and clonazapam in the purse had more pills missing than what was prescribed. Oxycodone bottle filled on 2/26 with 90 pills and only had 22 ½left. Clonazapam was filled with 60 on 2/22 and had now only 25. Subject appeared confused and nervous. Subject sat back down in driver seat on pack of cigarettes. On the way to jail, subject asked how long she had to be there after she sobered up.Brown agreed to submit to a blood test which indicated the presence of oxycodone and sertraline. Clonazapam was not included in the test panel by the Kentucky State Police lab. The tests indicated that there was no alcohol concentration in Brown's blood.
Brown filed a motion to dismiss the DUI charge pursuant to Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986), in the Fayette District Court. She argued that her arrest for DUI was not for probable cause in that it took place while she was sleeping in her car, not while she was operating it. She also argued that the only substance found to be in her system through the blood test was a substance for which she had a valid prescription.
The district court held as follows:
The undisputed facts in this case establish that the Defendant did not have any alcohol in her system when arrested. However, the test results established a concentration of several drugs, [for] one of which she had a valid prescription. Therefore, she is subject to prosecution under subsections (1) (c) and (1) (d) for those drugs for which she does not have a valid prescription. However, as to the drug in her system where there is a valid prescription it is inadmissible pursuant to (4) (b) whether she is prosecuted under (1) (c) or (1) (d). The Court in reviewing the statute in its entirety finds that [in] the case of alcohol the legislature grants the prosecutor the right to use what would otherwise be inadmissible evidence under two subsections while specifically excluding it under another. However, the legislature chose not to do so when the inadmissible evidence deals with a drug given under a valid prescription. Subsection (4) (b) lacks the granting authority that so clearly exists in subsection (2). Without that language this court must find that such authority was never meant to be given by the legislature in addressing the valid prescription situation.
The district court then dismissed the charges against Brown. The Commonwealth filed a Petition for a Writ of Prohibition after the district court's ruling with the Fayette Circuit Court. It contended that the district court was acting erroneously, although within its jurisdiction, and that no adequate remedy existed by appeal. It also argued that a great injustice and irreparable injury would result if the petition was not granted. The circuit court denied the writ, finding that it was an extraordinary relief and would only be granted either when the court was acting outside its jurisdiction or when acting within its jurisdiction, but erroneously. The circuit court found there was no showing of a great injustice or irreparable injury in the matter. The Commonwealth then filed this appeal.
STANDARD OF REVIEW
In reviewing the granting or denial of a writ of prohibition, we must decide whether the lower court abused its discretion. Armstrong v. Commonwealth, 205 S.W. 3d 230 (Ky. App. 2006). Thus, we will determine whether the Fayette Circuit Court abused its discretion in denying the writ.
DISCUSSION
The issuance of a writ of prohibition is an extraordinary remedy and may be granted only on a showing that (1) the lower court is proceeding or about to proceed outside its jurisdiction and there would be no remedy for its actions through appeal, or (2) the lower court is about to act incorrectly, but within its jurisdiction and there exists no adequate remedy through appeal. Commonwealth v. Maricle, 10 S.W.3d 117 (Ky. 1999). Both reasons for issuing a writ require there be no adequate remedy through appeal.
The Commonwealth argues that the Double Jeopardy Clause of the Fifth Amendment precludes it from an adequate remedy through appeal. It asserts that once jeopardy attaches, prosecution of the defendant would be barred unless there was a mistrial. The appellees, however, counter that the district court was not forcing an immediate trial in this matter. Consequently, they argue that the appellants could have had a ruling on the issue by the district court and then appealed that ruling through an interlocutory appeal before proceeding with the case.
Pursuant to Kentucky Revised Statutes (KRS) 22A.020(2), our court may hear interlocutory appeals from the circuit court. There is no provision, however, for an interlocutory appeal from the district court to the circuit court. Thus, the Commonwealth is correct that they would have no other means of addressing the issue except through the filing of a writ.
In Commonwealth v. Williams, 995 S.W.2d 400 (Ky. App. 1999), a panel of our court reviewed a case involving the suppression of evidence by the district court. There, the court held that:
the circuit court is without jurisdiction to take an interlocutory "appeal" from district court as the proper method of procedure is through an original action seeking a writ of mandamus or prohibition. (citation omitted.)
the Commonwealth's only vehicle for review of the district court's ruling was an original action in circuit court seeking prohibition.
The Commonwealth is correct, therefore, that the proper method of review in this case is a Writ of Prohibition. We, therefore, remand this case to the Fayette Circuit Court for findings of facts and conclusions of law.
ALL CONCUR. BRIEF FOR APPELLANT: Steven P. Stadler
Special Assistant Attorney General
Lexington, Kentucky
BRIEF FOR APPELLEE: Gene Lewter
Frankfort, Kentucky