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Grimm v. Commonwealth10/22/2004
rst Offense within Five Years, against the peace and dignity of the Commonwealth of Kentucky." (emphasis added.)
KRS 189A.010(1) has five subsections. Subsections(a) and (e) are per se violations, meaning the Commonwealth does not have to prove impairments, only the amount of alcohol in one's breath or blood. Subsections (b), (c), and (d) all require the Commonwealth prove impairment to drive. Grimm was charged under subsection (c) which requires that the defendant operated the vehicle " hile under the influence of any other substance or combination of substances which impairs one's driving ability. . . ." Technically, the particular charge in the indictment against Grimm should not have included the word "may" because it was not a per se violation. However, defects in the indictment are waived when a defendant enters a guilty plea without objection. Skaggs v. Commonwealth, Ky. App., 885 S.W.2d 318 (1994). "The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense." (citations omitted.) Hughes v. Commonwealth, Ky. 875 S.W.2d 99, 100 (1994). The question becomes whether the indictment charges an offense because it improperly inserted the word "may." We believe it does because KRS 189A.010(1) has both per se violations and violations which require actual impairment to be proven. Even though the Commonwealth was proceeding on subsection (c) which requires that impairment be proven, the per se violations are included in the same statute, thus the indictment does charge a crime, albeit not the subsection Grimm pled guilty to, nor the one she was originally charged with.
For the foregoing reasons, the judgment of the Johnson Circuit Court is affirmed.
BUCKINGHAM, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
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