The opinion of the court was delivered by: Acree, Chief Judge:
RENDERED: FEBRUARY 22, 2013; 10:00 A.M.
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MARY M. SHAW, JUDGE ACTION NO. 11-CI-000210
AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KELLER, JUDGES.
The Commonwealth appeals an order of the Jefferson Circuit Court denying its petition for a writ of prohibition. The issue underlying the Commonwealth's writ petition is whether the Jefferson District Court properly granted Appellee Michael G. Howard's motion to suppress evidence acquired following his arrest for driving under the influence. We affirm.
On January 10, 2010, Louisville Metro Police Officer Brandon Hogan was on routine patrol in Louisville, Kentucky. At approximately 5:00 a.m., a concerned citizen called 911 and reported that an individual was passed out in a vehicle parked in a parking lot adjacent to Fourth Street Live, an entertainment district in downtown Louisville. The concerned citizen said the individual had his foot on the accelerator and the vehicle's engine was revving. Officer Hogan responded.
Arriving at the scene, Officer Hogan approached the vehicle and observed Howard asleep in the vehicle's driver's seat. The vehicle was legally parked with its doors locked, the key was in the ignition, and the vehicle was running. Howard's foot was on the accelerator causing the engine to rev continuously.
At the suppression hearing, Officer Hogan described Howard as slouched over and unresponsive, with one hand on the steering wheel and one hand on the gear shift. Officer Hogan observed the engine's temperature gauge was almost in the red zone. Officer Hogan attempted to wake Howard by tapping on the window, yelling loudly, and shining his flashlight in Howard's face. When those methods failed, Officer Hogan broke the vehicle's back window, unlocked the doors, and removed Howard from the vehicle. Howard then woke up.
Howard informed Officer Hogan he had been drinking whiskey at Fourth Street Live and "was really, really drunk." Officer Hogan observed Howard was unsteady on his feet, was slurring his speech, smelled of alcohol, and had blood-shot eyes. Officer Hogan arrested Howard for driving under the influence (DUI) and transported him to Louisville Metro Corrections where a breathalyzer test was administered.
Howard moved to suppress the results of the breathalyzer test. Howard argued that Officer Hogan lacked probable cause to arrest him for driving under the influence because he was not operating or in physical control of his vehicle at the time of the arrest, as required by Kentucky Revised Statute (KRS) 189A.010(1). The district court agreed and granted Howard's suppression motion.
The Commonwealth then filed a Petition for a Writ of Prohibition and/or Mandamus in Jefferson Circuit Court seeking to prohibit the district court from suppressing the results of Howard's breathalyzer test. The circuit court denied the petition. The Commonwealth promptly appealed.
II. Prerequisites for the Grant of a Writ of Prohibition
"A writ of prohibition or mandamus is an extraordinary form of relief and should not freely be granted." Riley v. Gibson, 338 S.W.3d 230, 233 (Ky. 2011). The decision to issue a writ, however, rests within the sound discretion of the court with which the petition is filed. Hoskins v. Maricle, 150 S.W.3d 1, 9 (Ky. 2004). A writ may be issued if:
(1) 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; or (2) that 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 ...