APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N.
BUNNELL, JUDGE NO. 16-CR-00202
COUNSEL FOR APPELLANT: Aaron Reed Baker Assistant Public
Advocate Department of Public Advocacy
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of
Kentucky Courtney J. High tower Assistant Attorney General
Iraola-Lovaco was convicted of three counts of Assault in the
Second Degree and one count of DUI First Offense. He entered
a guilty plea to one count of misdemeanor Leaving the Scene
of an Accident. Iraola-Lovaco now appeals as a matter of
right from the Fayette Circuit Court's final
judgment imposing the jury's recommended sentence of
twenty years' imprisonment. After extensive review of the
record and applicable case law, we hold that no palpable
error resulted from the arresting officer's testimony
referring to the field sobriety investigative procedures he
administered as "tests" and stating that
Iraola-Lovaco "failed" them. Furthermore, the trial
court properly denied Iraola-Lovaco's motion for a jury
instruction on the lesser-included offense of Assault in the
Fourth Degree. Accordingly, we affirm.
Factual and Procedural Background.
December 27, 2015, at approximately 11 p.m., Iraola-Lovaco
was speeding and drove up on the curb of Winchester Road in
Lexington, progressed down the sidewalk, and struck three
individuals with his vehicle. Then Iraola-Lovaco's
vehicle struck a utility pole. Iraola-Lovaco drove away from
the scene. Shortly thereafter, Officer Bellamy of the
Lexington Police Department responded to a call of a vehicle
blocking traffic and found Iraola-Lovaco sitting in the
driver's seat of his car with the engine running. No one
else was in the car with him. The vehicle's front end was
smashed in and blood and vomit covered the windshield. Off.
Bellamy asked Iraola-Lovaco if he was ok and Iraola-Lovaco
responded that he was, and that he had struck a utility pole.
Off. Bellamy smelled alcohol on Iraola-Lovaco's breath
and observed that his eyes were bloodshot and watery. Off.
Bellamy read Iraola-Lovaco his Miranda rights before
administering five field sobriety tests ("FSTs");
Iraola-Lovaco failed four of them and was placed under
arrest. Iraola-Lovaco stated that he only had one beer and
did not think he had hit any people. All three victims were
transported to the hospital. Two of them lost a leg and all
required extensive medical treatment.
Bellamy transported Iraola-Lovaco to the Emergency Room for a
blood draw. His blood was drawn at approximately 1:48 a.m. on
December 28, 2015 and his blood alcohol content
("BAC") was 0.078. Calculating back from that time,
evidence was presented at trial that Iraola-Lovaco's BAC
at the time of the crash approximately two hours earlier was
convicted Iraola-Lovaco of three counts of Second-Degree
Assault and DUI First Offense. The jury hung on the charge of
Leaving the Scene of an Accident and the parties negotiated a
plea agreement for a misdemeanor on that charge. The jury
recommended a sentence of twenty years' imprisonment,
which the trial court imposed. This appeal followed.
appeal, Iraola-Lovaco raises two claims of error, only one of
which he preserved below. We do not find merit in either
No Palpable Error Resulted from Officer Bellamy's
Testimony About the Field Sobriety "Tests" He
asserts that Off. Bellamy's description of the field
sobriety events as "tests" and that Iraola-Lovaco
"failed the tests" improperly lent the
investigative procedures the gravitas of scientific weight
for which no scientific opinion foundation was laid, and
therefore should not have been admitted under
In other words, Iraola-Lovaco claims that use of the terms
"test," "pass" and "fail" lent
Off. Bellamy's lay witness testimony an "aura of
scientific validity" implying reliability and
transforming the testimony into expert witness testimony.
Notably, Iraola-Lovaco does not assert that Off. Bellamy was
not qualified to conduct the FSTs or that the proper
procedures were not employed. Nor does he dispute that Off.
Bellamy's testimony about his observations of
Iraola-Lovaco was properly admitted. Rather, Iraola-
Lovaco's sole claim of error pertains to the nomenclature
used by Off. Bellamy to describe the field sobriety events.
Because Iraola-Lovaco did not seek to exclude this testimony
at trial, or object to its introduction, his claimed error is
unpreserved and we will review it for palpable error only
under RCr 10.26 which provides:
A palpable error which affects the substantial rights of a
parry may be considered ... by an appellate court on appeal,
even though insufficiently raised or preserved for review,
and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.
injustice' is 'error [that] so seriously affect[s]
the fairness, integrity, or public reputation of the
proceeding as to be 'shocking or jurisprudentially
intolerable.'" Davidson v. Commonwealth,
548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v.
Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)).
contends that the palpable error standard is met since this
case was a "close call" in terms of intoxication
and Off. Bellamy's testimony was crucial in establishing
that Iraola-Lovaco was intoxicated. Iraola-Lovaco emphasizes
that the Commonwealth did not proceed under a DUI per
se theory (when the accused's blood or
breath-alcohol concentration was 0.08 or higher),
rather under an impairment theory. During his testimony, Off.
Bellamy conceded that Iraola-Lovaco was not "falling
down drunk" and that he was looking for "little
things" to determine intoxication. As a result,
Iraola-Lovaco maintains that allowing Off. Bellamy to use
such words as "test," "pass," and
"fail" to describe the field sobriety events
amounts to palpable error.
law is clear that evidence of FSTs is admissible and that
officers observing a defendant's driving and physical
condition may offer ...