FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 14-CI-00627
FOR APPELLANT: Andy Beshear Attorney General Daniel W.
Fendley Special Assistant Attorney General Assistant Oldham
County Attorney LaGrange, Kentucky
FOR APPELLEE: James L. Theiss James Daniel
(“J.D.”) Theiss LaGrange, Kentucky
BEFORE: D. LAMBERT, STUMBO AND THOMPSON, JUDGES.
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,
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
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 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.
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.
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.
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.
analyzing the relevant law, the district court concluded the
Commonwealth failed to meet its burden of proof that Martin