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Pinkston v. Commonwealth5/2/2003
TO BE PUBLISHED
OPINION AFFIRMING IN PART AND REVERSING IN PART
This is an appeal from a judgment convicting appellant of first-degree fleeing or evading police, second offense driving under the influence ("DUI"), and first-degree wanton endangerment. Appellant argues that convicting him of all three offenses constitutes double jeopardy under Section 13 (the "Double Jeopardy Clause") of the Kentucky Constitution and KRS 505.020. We agree and therefore reverse the first-degree wanton endangerment and second offense DUI convictions.
On the night of September 24, 2000, Trooper Russell Boyd of the Kentucky State Police observed appellant, Robert Pinkston, driving northbound in the southbound lane on the Purchase Parkway. Trooper Boyd turned on his lights and attempted to stop Pinkston. However, Pinkston refused to stop and a lengthy high speed chase ensued wherein other oncoming cars were forced to dodge Pinkston's vehicle. Finally, Trooper Boyd was able to block Pinkston and Pinkston was ultimately arrested. As a result of the above events, Pinkston was charged with numerous offenses, including first-degree fleeing or evading police, first-degree wanton endangerment, and second offense DUI. Prior to trial, Pinkston moved to dismiss or merge the above three charges on double jeopardy grounds. The court denied the motion. Thereafter, Pinkston was tried by a jury and convicted of all charged offenses. This appeal followed.
Pinkston first argues that under KRS 505.020 the trial court erred in failing to dismiss the charges of first degree wanton endangerment and second offense DUI or merge them with the charge of first-degree fleeing or evading police. KRS 505.020 provides:
(1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:
(a) One offense is included in the other, as defined in subsection (2); or
(b) Inconsistent findings of fact are required to establish the commission of the offenses; or
(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
(2) A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
(c) It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
(d) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.
In order to determine whether Pinkston could be convicted of the three offenses at issue under the above statute, we must examine the elements of each offense. First- degree fleeing or evading police is defined in pertinent part in KRS 520.095(1)(a):
(1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a pers
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