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Commonwealth v. Smith3/7/2003
REVERSING AND REMANDING
The Commonwealth of Kentucky appeals from an order of the Perry Circuit Court reversing the conviction of Barry Lee Smith ("Smith") on the charge of driving under the influence . For the reasons stated herein, we reverse and remand the order on appeal.
The facts are not in controversy. On or about January 29, 2000, Kentucky State Trooper Tim Mullins ("Mullins") and Perry County Deputy Sheriff Ira Napier ("Napier") stopped a vehicle in Hazard, Kentucky, when it failed to proceed through a green light at an intersection. The vehicle was being driven by Smith, and it contained two additional passengers. Mullins and Napier questioned Smith when they noticed the odor of alcohol and vomit coming from the interior of the vehicle.
Smith stated that he had been consuming alcohol, and Mullins administered a field sobriety test called a horizontal gaze nystagmus test ("HGN"). The test allows an investigating officer to observe a subject's eye movement to assist in determining if the subject is intoxicated. Other tests also were conducted. In Mullin's opinion, one or more tests indicated that Smith was intoxicated. Smith was also given a preliminary breath test ("PBT"), though the results of this test later were ruled inadmissible. Smith was arrested for driving under the influence . Later at the Perry County jail, Smith refused to submit to a breath test.
The matter proceeded to trial in Perry District Court on the charge of driving under the influence . Smith moved for a directed verdict at the close of the Commonwealth's case and again at the end of the trial. As a basis for the motions, Smith argued that the Commonwealth failed to produce evidence sufficient for the matter to go to the jury. He noted that the PBT was ruled inadmissible, and maintained that the HGN test, taken alone, was not sufficient to support a conviction. The motions were denied, and the jury returned a guilty verdict. Smith was sentenced to a fine of $200.
Smith appealed to the Perry Circuit Court, arguing that the trial court erred in failing to grant his motions for a directed verdict. Upon considering Smith's argument, the circuit court opined that the HGN test was not sufficient to sustain a conviction. In so doing, the court noted that the National Highway and Safety Administration took the position that the HGN test should not be used as the sole indicator of intoxication. It reversed Smith's conviction, and the Commonwealth now appeals.
The Commonwealth now argues that the circuit court erred in ruling that the evidence against Smith was insufficient to withstand Smith's motions for a directed verdict. It notes that the trooper and deputy sheriff observed Smith's vehicle remain stationary at a green light; that they smelled alcohol coming from the driver's window; that Smith failed the HGN test; that Mullins testified that he believed Smith was intoxicated; that Smith refused to submit to an intoxilyzer 5000 breath test; and, that Smith admitted consuming alcohol and admitted driving the vehicle. The Commonwealth argues that this evidence, when considered in its entirety, clearly is sufficient to withstand a motion for a directed verdict, and that the circuit court erred in failing to so rule.
As the parties are aware, Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991) sets forth the standard for reviewing motions for a directed verdict. It states that,
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is gu
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