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Tipton v. Commonwealth of Kentucky3/24/1989
McDONALD, JUDGE. This matter is before us on discretionary review of a judgment of the Campbell Circuit Court in an appeal from a ruling of the Campbell District Court. The district court ruled that the Commonwealth could not admit the breathalyzer results of Timothy Tipton nor his prior conviction of driving under the influence (DUI) at the trial of his current DUI charge. The circuit court reversed. The facts are as follows:
On January 12, 1987, the Campbell County police arrested Timothy Tipton, noting on the citation:
Driving under the influence breathalyzer 2000 results .16%
On a prior occasion, June 1, 1984, in Grant County, Timothy Tipton was arrested for speeding and DUI. His breathalyzer results showed a reading of .11%. Tipton entered a plea of guilty on July 7, 1984: however, his plea was entered by his attorney pursuant to RCr 8.28(4). Admitted by all, Tipton was at his job, desiring not to lose time from his employment to go to court. The plea agreement was signed by his lawyer.
After the second and current arrest but prior to his district court trial, Tipton moved for a suppression hearing to (1) set aside his prior conviction on the grounds that the plea of guilty entered was in violation of RCr 8.08 andBo Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), because the trial court did not establish the guilty plea of Tipton was entered knowingly, intelligently and voluntarily before accepting it; and (2) that the breathalyzer test results of the second arrest should be suppressed because the police officer did not comply with Chemical Test Manual for Kentucky § 8.8B(3) which provides as follows:
20 Minute Observation Period
The operator must observe the defendant at all times during this period in order that he can testify positively that during this 20 minute observation period defendant had nothing to eat or drink, did not regurgitate or smoke.
The district court, without separate findings of fact, entered an order suppressing the prior DUI conviction because the record failed to reveal that Tipton was cognizant of his rights, and because his counsel, who entered his plea and signed the plea form for Tipton, only assumed that he explained to Tipton his rights. Boykin, supra, was not complied with in fact. Secondly, the breathalyzer results of the second charge were also suppressed because the police officer did not comply with the 20-minute observation requirement.
The Commonwealth appealed both rulings to circuit court. In its statement of appeal, the Commonwealth said the appeal was pursuant to Section 115 of the Kentucky Constitution and KRS 22A.020.
In reversing the district court, the circuit court adjudged that Tipton's attorney informed him of all his constitutional rights and that Tipton's decision not to attend the plea hearing constituted a waiver. Also it determined the plea was done in conformity with RCr 8.28(4) wherein for misdemeanors the court may accept a plea of guilty in the defendant's absence. Finally, the circuit court ruled that "eyeball to eyeball" observation for 20 minutes by the officer is not required by law as ruled by the district court; therefore, it held the breathalyzer results to be admissible.
From the circuit court judgment we granted Mr. Tipton's motion for discretionary review. We have no transcript of the testimony or findings of fact from district court.
Tipton's first assignment of error is that the circuit court did not have jurisdiction to entertain the interlocutory appeal from th
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