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Pinkston v. Commonwealth5/2/2003
0.095(1)(a)4. - causing or creating a "substantial risk, of serious physical injury or death to any person or property" - requires nearly the same conduct defined in the first-degree wanton endangerment statute, KRS 508.060 - "he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person." While first-degree fleeing or evading police does require proof of additional facts (intentionally evading or fleeing a police officer and disobeying a police officer's direction to stop) not required for DUI and first-degree wanton endangerment, the opposite is not true. We recognize that only one of the conditions in KRS 520.095 (1)(a) 1.-4. need be shown, however, the wording of the instructions in the present case does not reveal which condition the jury relied on to find guilt. Accordingly, we must reverse the convictions for second offense DUI and first-degree wanton endangerment. See Walden v. Commonwealth, Ky., 805 S.W.2d 102 (1991), overruled on other grounds, Commonwealth v. Burge, 947 S.W.2d 805.
Given our reversal of the second offense DUI conviction, Pinkston's second argument, that the evidence of the prior DUI convictions was not properly authenticated, is rendered moot. For the reasons stated above, the judgment of the Marshall Circuit Court is affirmed as to the first-degree evading or fleeing a police officer and reversed as to the convictions for second offense DUI and wanton endangerment in the first degree.
ALL CONCUR.
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