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Grimm v. Commonwealth10/22/2004
, while the law requires that her driving be impaired by the drugs or alcohol. Even though the indictment and plea stated she was under the influence of drugs which may impair driving ability, both Grimm's previous attorney and her current attorney agree that wantonness requires proof of actual driver impairment.
They both agreed that the prescription drugs did not impair Grimm. However, they disagree about the proof concerning the marijuana use. The current attorney advises Grimm that the presence of marijuana metabolites only indicates past use but does not measure current impairment. While that may be true, that argument ignores the evidence that Grimm may have been smoking pot at the time of the accident. Could the new attorney have won or was the previous attorney correct in assessing the case a loser? We do not know, but assault in the second degree, KRS 508.020, required that Grimm wantonly caused the injuries. Wanton conduct is defined by KRS 501.020(3) to be:
hen he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
Grimm's new attorney contends the Commonwealth "must prove she was operating her vehicle under the influence of drugs beyond a reasonable doubt in order to convict her of assault." We disagree. Under the statute, voluntary intoxication is only one form of wanton conduct. Even if the presence of marijuana metabolites do not prove current impairment, the evidence could still show her conduct was wanton. See Martin v. Commonwealth, Ky. App., 873 S.W.2d 832, 834 (1993). Whether the evidence was sufficient to convict is a judgment call by her attorney at the time of Grimm's plea. He thought it was and so advised his client. Again, see Hodge, 116 S.W.3d 463. The advice appears to have been reasonable and competent and a guilty plea is not open to attack unless the counsel provided the defendant with unreasonable or incompetent advice. See Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed. 2d 333 (1980). Under the totality of the circumstances, the plea appears to be voluntary. Rodriguez, 87 S.W.3d at 10.
Grimm's second argument is that the indictment should have been dismissed because the indictment did not follow the language of the statute and did not adequately inform Grimm of the elements of the offense. Again this refers to count three only, the DUI charge, because the wanton element of counts one and two of second-degree assault do not require drug or alcohol impairment. Also not included is the possession of marijuana charge which likewise has no requirement of intoxication. As to the DUI, the indictment was for:
"KRS: 189A.010 (1c) OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF SUBSTANCE WHICH MAY IMPAIR DRIVING ABILITY, FIRST OFFENSE WITHIN FIVE YEARS Penalty: Imprisonment of not Less than 48 hrs. nor more than 30 days and/or fine not more than $500 U.O.R. # 00148" (emphasis added.)
Page two of the indictment charged, as to the DUI only:
"The Grand Jury charges: That on or about the lst day of November, 2000, in Johnson County, Kentucky, and before the finding of the indictment herein, the above-named defendant:
3. The above named defendant committed the offense of Operating a Motor Vehicle While Under the Influence of Drugs Which May Impair Driving Ability, Fi
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