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Commonwealth v. Crosby

Court of Appeals of Kentucky

March 24, 2017

COMMONWEALTH OF KENTUCKY APPELLANT
v.
HON. JERRY CROSBY, OLDHAM DISTRICT COURT JUDGE AND KELLY MARTIN APPELLEES

         APPEAL FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE ACTION NO. 14-CI-00627

          BRIEF FOR APPELLANT: Andy Beshear Attorney General Daniel W. Fendley Special Assistant Attorney General Assistant Oldham County Attorney LaGrange, Kentucky

          BRIEF FOR APPELLEE: James L. Theiss James Daniel (“J.D.”) Theiss LaGrange, Kentucky

          BEFORE: D. LAMBERT, STUMBO AND THOMPSON, JUDGES.

          OPINION AFFIRMING

          THOMPSON, JUDGE:

          The Commonwealth appeals from an opinion and order from the Oldham Circuit Court denying its petition for a writ of prohibition/ mandamus seeking relief from an Oldham District Court's order suppressing all evidence seized following Kelly Martin's arrest for DUI, second offense, aggravated.

         On April 6, 2014, police officer David Ingram investigated what appeared to be a driverless car with its engine running, legally parked on the side of the road. When he approached, he found Martin slumped forward behind the wheel of her vehicle smoking a cigarette and texting on her phone. From talking with Martin, Officer Ingram suspected she was under the influence of alcohol. Martin failed field sobriety tests and was arrested. Following her arrest, her breathalyzer test yielded a reading of .181

         At Martin's arraignment on April 23, 2014, Martin moved that the district court decline to enter a pretrial suspension of her driver's license, alleging her arrest was made without probable cause that she was in physical control or operating her motor vehicle while under the influence of alcohol prior to her arrest as required for her to have violated Kentucky Revised Statutes (KRS) 189A.010. The district court denied her motion and entered a pretrial suspension of Martin's license, but set the matter for a hearing as to whether there was probable cause for Martin's arrest.

         At Martin's suppression hearing, on May 7, 2014, the district court heard testimony from Officer Ingram, Martin and Amira Stevens, who hosted the party Martin attended. Officer Ingram's and Martin's testimony were largely consistent regarding what was to be observed about Martin's use of her vehicle and their interaction. Officer Ingram observed Martin texting on her phone in a parked vehicle that had its lights on and engine running. Martin told Officer Ingram she was at a party and went to her vehicle to smoke.

         Martin and Officer Ingram disagreed on whether what Martin said was consistent with an intent not to drive and how her actions should be interpreted. Martin testified she told Officer Ingram she was staying down the road and did not intend to drive. Martin testified her behavior was consistent with her intent to return to the party after she finished smoking and stay there overnight. Steven's testimony corroborated Martin's account that she was invited to and planned to spend the night at Steven's house.

         Officer Ingram testified Martin said she lived down the road (which was inconsistent with her driver's license information) and did not say anything about not intending to drive. Officer Ingram inferred from Martin's lie about where she lived and the presence of her purse that Martin planned to drive home while intoxicated after she finished texting.

         The district court made the following findings of fact:

On April 5, 2014, [Martin] attended a party at [a] friend's house in the Poplar Hill subdivision in Crestwood, Oldham County, Kentucky. In the early morning hours of April 6, 2014, she exited the party to retrieve cigarettes from her vehicle which was legally parked on the street near the home where the party was located. [Martin] entered her vehicle, started the engine, lit a cigarette, and began to send some text messages from her mobile phone. While on routine patrol, Officer Ingram came upon the defendant's parked vehicle with the engine running and headlights illuminated. He could not tell if anyone was inside the vehicle, so he flashed his high beams four (4) times to see if anyone was inside the vehicle. When he didn't see any movement inside the vehicle he pulled alongside the defendant and saw her slumped forward in the driver's seat. Officer Ingram then parked his cruiser, exited, and approached [Martin]. Upon approaching [Martin's] vehicle, Officer Ingram observed that the defendant was awake and slumped forward texting on her phone. She rolled down the window and Officer Ingram asked her what she was doing. [Martin] responded that she was at the party of a friend and came out to her vehicle to smoke. Immediately, Officer Ingram could tell [Martin] was intoxicated. [Martin] admitted that she had been drinking wine, but said she had no intention of driving. Officer Ingram asked her to exit her vehicle and requested that she perform several standard field sobriety exercises. Following her performance on the field sobriety exercises and other observations made at the scene, Officer Ingram arrested [Martin] for DUI. The Commonwealth produced no evidence of how long Officer Ingram believed [Martin's] vehicle had been parked at its location.

         After analyzing the relevant law, the district court concluded the Commonwealth failed to meet its burden of proof that Martin was ...


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