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Whitehouse v. Commonwealth2/28/2003
AFFIRMING
The sole issue in this appeal is the constitutionality of the 1998 version of KRS 189A.010(4)(a). Appellant argues that the penalty enhancement provision of the statute applicable to those with an alcohol concentration of 0.18 or higher violates due process and equal protection because it is arbitrary, it penalizes those drivers who submit to blood alcohol testing, and it does not apply to those drivers intoxicated as a result of substances other than alcohol. In light of our Supreme Court's decision in Cornelison v. Commonwealth, Ky., 52 S.W.2d 570 (2001), wherein the Court upheld the constitutionality of the enhancement provision for third time offenders with an alcohol concentration of 0.18 or higher in the 1998 version of KRS 189A.010(4)(c), we affirm the Marion Circuit Court's determination that KRS 189A.010(4)(a) is constitutional.
Appellant, Stephen Whitehouse, was charged on February 21, 1999, with first offense operating a motor vehicle while under the influence of alcohol, over the age of 18, with an alcohol concentration over 0.18. On April 23, 1999, appellant entered a conditional guilty plea to said charge, reserving the right to challenge the constitutionality of KRS 189A.010(4)(a). The trial court accepted the plea and sentenced Whitehouse to two days' imprisonment and fined him $200. Whitehouse then filed his appeal in the Marion Circuit Court. The circuit court found that the penalty enhancement provision in KRS 189A.010(4)(a) for those with a blood alcohol level of .18 or higher was rationally related to a legitimate governmental interest and, thus, affirmed the conviction. Our Court granted discretionary review of the issue.
As amended in 1998, KRS 189A.010(4)(a) provided:
(4) Any person who violates the provisions of paragraphs (a), (b), (c) or (d) of subsection (1) of this section shall:
(a) For the first offense within a five (5) year period, be fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500) or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days or both. If the person has a blood or breath alcohol concentration of 0.18 or higher, he or she shall be sentenced to at least seven (7) days' imprisonment, but the court may probate five (5) of those days. Following sentencing, the defendant may apply to the judge for permission to enter a community labor program for not less than forty-eight (48) hours nor more than thirty (30) days in lieu of fine or imprisonment, or both.
Whitehouse argues that the portion of the statute which increases the jail sentence if the alcohol concentration is 0.18 or greater violates the due process clause of the United States and Kentucky Constitutions and the equal protection clause of the United States Constitution because: 1) the 0.18 standard is an arbitrary execution of governmental power; 2) the statute unfairly penalizes those who submit to a blood or breath alcohol test; and 3) the statute unfairly singles out those intoxicated as a result of alcohol and not other intoxicating substances.
Subsequent to this Court's granting of discretionary review in this case, the Kentucky Supreme Court rendered its decision in Cornelison v. Commonwealth, Ky., 52 S.W.3d 570 (2001), wherein it upheld the constitutionality of the 1998 version of KRS 189A.010(4)(c) which contained the penalty enhancement provision for third time offenders with an alcohol concentration of 0.18 or higher. In that case, appellant also made the argument that the 0.18 blood alcohol standard was arbitrary. In rejecting this argument, the Court stated:
As we have previously noted, the Com
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