Opinion
NO. 2017-CA-000479-MR
03-16-2018
COMMONWEALTH OF KENTUCKY APPELLANT v. HONORABLE JUDGE JULIE MUTH GOODMAN AND GWENDOLYN BROWN APPELLEES
BRIEFS FOR APPELLANT: Andrew Beshear Attorney General of Kentucky Frankfort, Kentucky Larry S. Roberts Fayette County Attorney Lexington, Kentucky Steven P. Stadler Special Assistant Attorney General Lexington, Kentucky BRIEF FOR APPELLEE, GWENDOLYN BROWN: John Gerhart Landon Assistant Public Advocate Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 11-CI-04947 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, D. LAMBERT AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: The Commonwealth of Kentucky seeks review of the denial of a Petition for Writ of Prohibition by the Fayette Circuit Court concerning the admissibility of blood test results in a criminal prosecution and the interpretation of Kentucky Revised Statutes (KRS) Chapter 189A, Kentucky's Driving Under the Influence (DUI) statute. This matter is before the Court on a second appeal after the initial order was remanded for findings of fact and conclusions of law by the Fayette Circuit Court. We reverse and remand.
We shall rely upon the recitation of the underlying facts and procedural history as set forth in the opinion rendered by this Court in the first appeal:
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 22½ left. 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 [KRS 189A.010](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.Commonwealth v. Goodman, 2011-CA-002175-MR, 2013 WL 1919551, at *1 (Ky. App. May 10, 2013). Agreeing with the Commonwealth that there was no way to address the legal issue except by filing an original action and that "the proper method of review in this case is a Writ of Prohibition," id. at *2, this Court reversed the circuit court's order and remanded the matter to the circuit court to make findings of fact and conclusions of law. That decision became final on June 25, 2013.
The district court did not dismiss the charges in that order; rather, it ruled that the test results establishing the presence of Oxycodone were inadmissible. It also denied Brown's motion to dismiss in which she argued that the Commonwealth could not establish that she had operated the vehicle while intoxicated and apparently rejected Brown's argument in her motion to suppress that the Commonwealth could not establish that the sample had been taken within two hours of cessation of her operating a motor vehicle. In the docket order entered August 16, 2011, the district court stated its ruling that it had denied Brown's motion to dismiss, but it granted her motion to suppress the test results "both for 2 hr rule and also due to valid prescriptions." The district court scheduled a jury trial for December 2011 in a pre-trial order entered September 16, 2011.
The circuit court did not issue its findings of fact and conclusions of law until February 28, 2017, close to four years after this Court's opinion became final. In that ruling, the court made findings related to Brown's offense, the police investigation, and the district court proceedings related to the motion to suppress the blood test results pursuant to KRS 189A.010(4)(b). The court ruled as follows:
A writ of prohibition is an extraordinary remedy and should be granted only on a showing that either the lower court is proceeding or about to proceed outside its jurisdiction and there would be no remedy for its actions
through appeal or the lower court is acting incorrectly but within its jurisdiction and [there exists] no adequate remedy through appeal. Hoskins v. Maricle, 150 S.W.3d 1 (Ky. 2004). This court found the lower court was acting within its jurisdiction and the question becomes whether the lower court was acting erroneously and there is no adequate remedy. This court further found the Commonwealth did not sufficiently demonstrate that great injustice or irreparable injury would result if the petition is not granted.Accordingly, the circuit court found that the district judge was acting within her jurisdiction and that the Commonwealth had failed to demonstrate that a great injustice and irreparable injury would occur. However, the court recognized that "a question may exist as to the correctness of the ruling[.]" The court also stated that "the issue of operation" existed whether the results of the blood test were excluded or not, citing Wells, supra. This appeal now follows.
This court finds from the record the Commonwealth is not precluded from proceeding with the trial in this matter. The Commonwealth has evidence of the 911 call made to the police regarding a passed out person behind the steering wheel of a running motor vehicle in a parking lot. It has the evidence of the investigating officer of his observations which include Ms. Brown being found "passed out" in the driver's seat slumped over the console with the engine running. His observation that the driver had large pupils, slurred speech, confusion and deficient performance on field sobriety test and statements made by Ms. Brown, after being Mirandized, regarding her condition and degree of sobriety or lack of sobriety. Merely excluding the blood test pursuant to the lower court's order does not create a situation where great injustice and irreparable injury will result.
On appeal, the Commonwealth argues that the circuit court erred in holding that it had not met the standard for a writ of prohibition and that it was entitled to relief from the district court's decision to not admit the blood test results. Brown contends that the Commonwealth did not meet the criteria for relief and that the district court's ruling was substantially correct.
In Spears v. Goodwine, 490 S.W.3d 347, 350-51 (Ky. 2016), the Supreme Court of Kentucky explained that "[a] writ of prohibition is an extraordinary remedy and we have always been cautious and conservative both in entertaining petitions for and in granting such relief." (Internal quotations and citation omitted.) The Court went on to describe the three situations where a writ of prohibition may be granted. The first two classes of writs are generally subject to the court's discretion and are 1) "where the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court[,]" id. at 351, quoting PremierTox 2.0 v. Miniard, 407 S.W.3d 542, 546 (Ky. 2013) (internal quotation marks omitted), and 2) "where the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted." Id. (internal quotation marks omitted). The third class of writ is a subset of the second and applies in special cases where "the administration of justice generally will suffer the great and irreparable injury." Id. Our standard of review is for abuse of discretion, with the exception of legal issues, which we review de novo. Spears, 490 S.W.3d at 351, citing Rehm v. Clayton, 132 S.W.3d 864, 866 (Ky. 2004); Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky. 2005).
Our review in this case centers on the second class of writs, as the Commonwealth alleges that the district court was acting within its jurisdiction but erroneously (or is a special case). Therefore, the Commonwealth "must further demonstrate that it has 'no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.'" Spears, 490 S.W.3d at 353, quoting PremierTox 2.0, 407 S.W.3d at 546. There is no dispute that the district court was acting within its jurisdiction and that the Commonwealth did not have an adequate remedy by appeal or otherwise. Accordingly, the questions we must resolve are whether the district court was acting erroneously and whether the Commonwealth has established that a great injustice and irreparable injury will result if it does not receive relief.
First, we shall consider whether the district court acted erroneously in suppressing the results of the blood test showing the presence of Oxycodone based upon its interpretation of KRS 189A.010(1)(c). Although on remand the circuit court failed to address this legal question, we shall nevertheless review this issue as the Commonwealth requested. Because statutory interpretation is a question of law, we shall review this matter de novo. Commonwealth v. Gamble, 453 S.W.3d 716, 718 (Ky. 2015); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
In Kentucky, "[t]he primary purpose of judicial construction is to carry out the intent of the legislature. In construing a statute, the courts must consider the intended purpose of the statute - and the mischief intended to be remedied. A court may not interpret a statute at variance with its stated language." Monumental Life Ins. Co. v. Dept. of Revenue, 294 S.W.3d 10, 19 (Ky. App. 2008) (internal quotation marks omitted), citing SmithKline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001). "The courts should reject a construction that is unreasonable and absurd, in preference for one that is reasonable, rational, sensible and intelligent[.]" Monumental Life Ins. Co., 294 S.W.3d at 19 (internal quotation marks omitted), citing Commonwealth v. Kerr, 136 S.W.3d 783, 785 (Ky. App. 2004); Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky. App. 1997). "[T]he courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Commonwealth v. Rhodes, 308 S.W.3d 720, 723 (Ky. App. 2010) (internal quotation marks omitted), quoting Holbrook v. Kentucky Unemployment Ins. Com'n, 290 S.W.3d 81, 86 (Ky. App. 2009). "[S]tatutes must be given their literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required. We lend words of a statute their normal, ordinary, everyday meaning." Stephenson v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005) (internal citations and quotation marks omitted), quoting Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).
The version of KRS 189A.010 in effect at the time of Brown's arrest provided in relevant part as follows:
This version was in effect from July 15, 2010, through April 8, 2016. --------
(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;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one's driving ability;
(d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
(e) While under the combined influence of alcohol and any other substance which impairs one's driving ability; or
(f) Having an alcohol concentration of 0.02 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, if the person is under the age of twenty-one (21).
(2) With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if 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 (f) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (e) of this section.
(3) In any prosecution for a violation of subsection (1)(b) or (e) of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant's blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions:
(a) If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol; and
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.
The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol or other substances, in any prosecution for a violation of subsection (1)(b) or (e) of this section.
(4) (a) Except as provided in paragraph (b) of this subsection, the fact that any person charged with violation of subsection (1) of this section is legally entitled to use any substance, including alcohol, shall not
constitute a defense against any charge of violation of subsection (1) of this section.
(b) A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice.
. . . .
(12) The substances applicable to a prosecution under subsection (1)(d) of this section are:
. . . .
(m) Oxycodone[.]
The district court found that because Brown had a valid prescription for one of the drugs found in her system during the blood best, she could only be prosecuted under KRS 189A.010(1)(c) and (1)(d) for the drugs she did not have a prescription for. It held that evidence of any drugs in her system for which she had a valid prescription was inadmissible under KRS 189A.010(4)(b) under both subsections (1)(c) and (1)(d). Based upon the plain language of the statute, we agree with the Commonwealth that the district court misinterpreted and misapplied the exclusionary language.
KRS 189A.010(4)(b) mandates the exclusion from evidence in a prosecution under subsection (1)(d) of substances for which a defendant has a valid prescription. The district court impermissibly extended the reach of subsection (4)(b) to prosecutions under subsection (1)(c) because prosecutions under that subsection are not mentioned in (4)(b). We reject the district court's interpretation that because the legislature opted specifically to address the use of alcohol test results, but did not do so for drug test results, it meant to exclude the test results under both subsections. We therefore hold that, under the plain meaning of the statute, the district court erred as a matter of law in excluding the blood test results for a prosecution under KRS 189A.010(1)(c).
Next, we shall consider whether the Commonwealth has established that a great injustice and irreparable injury would result if the evidence remained inadmissible. The Commonwealth asserts that if the evidence remained excluded, it would be deprived of the only scientific evidence available in the case as well as the opportunity to present expert testimony. The circuit court found it had not met this burden based upon evidence of the 911 call and observations of the investigating officer. We agree with the Commonwealth that the exclusion of this scientific evidence and associated testimony could certainly cause a great injustice and irreparable injury during its prosecution of Brown, as this evidence was vital to its case against her. Therefore, we must hold that the circuit court abused its discretion in denying the Commonwealth's petition for a writ of prohibition.
Because we have held that the circuit court abused its discretion in denying the Commonwealth's writ of prohibition under the second class of writs, we do not need to address whether the writ should have been granted as a special case.
For the foregoing reasons, the Fayette Circuit Court's findings of fact and conclusions of law denying the Commonwealth's petition for a writ of prohibition is reversed, and this matter is remanded for the entry of a writ of prohibition directing the admission of the blood test results showing the presence of Oxycodone, taken pursuant to a valid prescription, for a prosecution under KRS 189A.010(1)(c).
ALL CONCUR. BRIEFS FOR APPELLANT: Andrew Beshear
Attorney General of Kentucky
Frankfort, Kentucky Larry S. Roberts
Fayette County Attorney
Lexington, Kentucky Steven P. Stadler
Special Assistant Attorney General
Lexington, Kentucky BRIEF FOR APPELLEE,
GWENDOLYN BROWN: John Gerhart Landon
Assistant Public Advocate
Frankfort, Kentucky