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Smith v. Commonwealth9/24/2004
AFFIRMING
This court granted discretionary review of an order from the Garrard Circuit Court affirming the Garrard District Court's judgment after a jury found John Smith guilty of driving under the influence (DUI), pursuant to KRS 189A.010. Smith argues that the trial court erred by failing to dismiss the action based on the Commonwealth's failure to elect under which subsection of KRS 189A.010 it would proceed. For the reasons stated hereafter, we affirm.
On January 10, 2001, a Kentucky State Police officer stopped Smith after observing his vehicle cross a highway centerline and then veer to the fog line. The officer gave Smith various field sobriety tests, all of which he failed. The officer arrested Smith and gave him an Intoxilyzer test, which measured .088. Smith was charged with violating KRS 189A.010(5)(a), operating a motor vehicle under the influence of alcohol/drugs, first offense.
The matter proceeded to discovery, and Smith requested ll evidence known to the Commonwealth which tends to exculpate the defendant of the charges against defendant or which tend to show that the crime committed by the defendant is a different crime than charged or was in fact a lesser degrees of the crime charged or which might be necessary to prevent unfair surprise at trial.
The Commonwealth responded that Smith was "charged with DUI 1st, BA results 0.88" . In response to Smith's request for the identity and anticipated testimony of any expert who was to be called by the Commonwealth, the Commonwealth stated:
Trooper Eric Taylor will be the witness for the Commonwealth. He will testify to the operation of the vehicle of Mr. Smith while traveling west on Ky Hwy 52. The defendant was crossing the centerline on the highway. Upon stop of the vehicle, Trooper Taylor observed a strong smell of alcohol on his person, his eyes were red and glassy and defendant displayed slurred speech. The defendant was given filed sobriety test HGN, walk and turn, one leg stand and PBT. Defendant failed all tests and was placed under arrest for DUI. The defendant was read the implied consent card at 2329 and BA was given at 2355. The BA result was a 0.88 . Defendant was offered a blood test and defendant refused. Commonwealth does not intend to call any expert wit4ness at this time. Commonwealth will supplement its response should this information change.
At the close of the Commonwealth's case during Smith's jury trial, defense counsel moved for a directed verdict based on the fact that the Commonwealth had failed to inform him under which subsection of KRS 189A.010(1) it would proceed. The judge denied this motion, and the jury ultimately found Smith guilty of DUI under KRS 189A.010(1)(a) and (b). The circuit court affirmed the district court's decision. This court granted discretionary review.
First, we note that Smith's discovery request, set out above, did not ask the Commonwealth to specify under which subsection of KRS 189A.010(1) it would proceed. Thus, the sole issue on appeal is whether the Commonwealth was required to notify Smith of the subsection(s) of KRS 189A.010(1) under which it would proceed, even though Smith did not request the information.
KRS 189A.010(1) provides as follows:
A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two
(2) hours of cessation of operation or physical control of a motor vehicle;
(b) While under the influence of alc
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