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Cox v. Commonwealth

Court of Appeals of Kentucky

August 9, 2013

BILLY COX APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

ON DISCRETIONARY REVIEW FROM MARION CIRCUIT COURT HONORABLE ALLAN RAY BERTRAM, JUDGE ACTION NOS. 12-XX-00001

BRIEF AND ORAL ARGUMENTS FOR APPELLANT: Gregory D. Simms Louisville, Kentucky.

BRIEF FOR APPELLEE: Jack Conway Attorney General.

BRIEF AND ORAL ARGUMENTS FOR APPELLEE: Joseph H. Mattingly III Special Assistant Attorney General Frankfort, Kentucky.

BEFORE: CAPERTON, LAMBERT AND MAZE, JUDGES.

OPINION

MAZE, JUDGE

This matter is before the Court on discretionary review from an order of the Marion Circuit Court. The circuit court affirmed a jury verdict before the Marion District Court convicting Billy Cox of driving under the influence, second offense (DUI II), failure to wear seatbelts, and possession of an open alcohol container in a vehicle. Cox argues that the police roadblock at which he was stopped was not established or operated in a constitutional manner, and therefore any evidence seized as a result of that stop should have been suppressed. He also argues that the Kentucky State Police (KSP) Trooper failed to establish his qualifications to conduct field sobriety exercises, and thus he should not have been permitted to testify concerning Cox's performance of those exercises. Finally, Cox maintains that the Trooper's references to those exercises as "tests" and his use of terms such as "pass, " "fail, " or "indicators" imputed a degree of scientific or technical accuracy to those procedures which was not established by expert testimony. We conclude that the roadblock at issue was not conducted in a constitutional manner. Consequently, any evidence obtained as a result of Cox's stop must be suppressed. Hence, we reverse the order of the circuit court and direct that the convictions be vacated.

On February 2, 2008, a vehicle driven by Cox was stopped at a roadblock conducted by the KSP at the intersection of U.S. Highway 68 and Kentucky Highway 243 in Marion County. Trooper Clint Walker administered a series of field sobriety exercises and subsequently arrested Cox on charges of DUI II, failure to wear seatbelts, and possession of an open alcohol container.

Subsequently, Cox appeared before the Marion District Court on the charges and entered a plea of not guilty. His counsel moved to dismiss the charges for lack of probable cause on the grounds that the roadblock was unconstitutional. Cox also moved to suppress the results of the field sobriety tests, arguing that Trooper Walker failed to conduct the field sobriety exercises in conformity with the guidelines propounded by the National Highway Traffic Safety Administration (NHTSA). In the alternative, Cox sought to preclude Trooper Walker from referring to the field sobriety tests as "tests" or use words such as "pass, " "fail, " "indicators, " or by any terms which impute scientific reliability.

On the first issue, the district court denied the motion to dismiss, finding that the roadblock was established and operated in a constitutional manner. On the second issue, the district court found that there is no requirement that field sobriety exercises be conducted in strict accordance with the NHTSA Guidelines, and any deviation from those Guidelines merely went to the weight of the testimony and not its admissibility. Finally, the district court held that Trooper Walker could testify to his perceptions of how Cox completed the exercises, and that the use of specific terms did not imply a scientific accuracy.

Following a jury trial, Cox was convicted of all three charges. He received a sentence of fourteen days in jail, thirty days (240 hours) of community labor, and a $350.00 fine for the DUI II; a $25.00 fine for failing to wear a seatbelt; and a $35.00 fine for possessing an open alcoholic beverage container in a motor vehicle. However, the district court postponed imposition of the sentence to allow Cox to file a notice of appeal.

On direct appeal, the circuit court affirmed the conviction. But on discretionary review, a panel of this Court found that Cox had prematurely filed his notice of appeal prior to the imposition of the final judgment and sentence. Consequently, the Court concluded that his appeal was interlocutory and dismissed the appeal. Cox v. Commonwealth, 2012 WL 410835 (Ky. App. 2012) (2010-CA-001340-DG).

Following dismissal of that appeal, the district court entered the judgment but stayed imposition of the sentence pending an appeal. The circuit court again affirmed. Thereafter, this Court granted Cox's motion for discretionary review.

Cox again raises the three issues presented in his prior appeal. The first two issues involve Cox's motion to suppress evidence seized as a result of the traffic stop. In determining whether the trial court properly denied the motion to suppress, this Court is presented with a mixed question of fact and law. Initially, we review the circuit court's factual findings of fact under the clearly erroneous standard. Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001). Those findings are deemed conclusive if they are supported by substantial evidence. Kentucky Rules of Criminal Procedure (RCr) 9.78. Next, we undertake a de novo review to determine if the law was properly applied to the facts. Copley v. Commonwealth, 361 S.W.3d 902, 905 (Ky. 2012). The remaining ...


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