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Lopez v. Commonwealth10/20/2005
REVERSING
A Fayette District Court jury convicted Appellant, Nelson Lopez, of operating a motor vehicle with alcohol concentration of or above 0.08, KRS 189A.01 0(l)(a), and he was sentenced to twenty-one days in jail (reduced to ten days) and'a $500.00 fine. His appeal arrives in this Court in an unusual posture. The only issue presented to us is whether the district court properly instructed the jury on this offense as redefined by the 2000 General Assembly. Appellant, who was convicted under the instruction, claims the instruction was proper. The Commonwealth, which obtained Appellant's conviction under the instruction, claims it was improper. The instruction was as follows
You will find the defendant guilty if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(A) That in this county on or about October 11, 2002, the defendant was operating or in physical control of a motor vehicle;
AND
(B) That while so doing his blood alcohol concentration was.08 or greater;
AND
(C) The sample of the Defendant's breath was taken within two hours of cessation of the operation or physical control of the motor vehicle.
Following his conviction, Appellant appealed to the Fayette Circuit Court, asserting that (1) the district court erroneously permitted the Commonwealth to introduce a videotape of his field sobriety test performed immediately prior to his arrest and approximately one hour before his blood alcohol test; and (2) the district court erroneously allowed the prosecutor to tell the jury during her opening statement and closing argument that the jury could convict Appellant of the offense if his blood alcohol content was 0.08 at the time of the blood alcohol test, regardless of what it may have been at the time he was operating his motor vehicle. Although the Commonwealth had objected to the instruction given by the district court, it did not cross-appeal on that issue.
The circuit court held that it was reversible error to permit the Commonwealth to introduce the videotape of the field sobriety test because, except for operating a motor vehicle, the only element of this offense is having a blood alcohol concentration of 0.08 or more. The circuit court reasoned that, since Appellant did not argue that his blood alcohol level registered 0.08 because of a malfunctioning machine (rather than intoxication), the field sobriety test was irrelevant. The circuit court then held that the statements by the prosecutor were not erroneous under the 2000 version of the statute, but that the instruction was erroneous, and directed the district court upon retrial to instruct the jury in accordance with the 2000 amendment of the statute.
Appellant filed a motion for the Court of Appeals to take discretionary review of the instruction issue. The Commonwealth did not file a cross-motion with respect to the circuit court's reversal for a new trial because of the admission of the field sobriety test. When the Court of Appeals denied discretionary review, Appellant moved this Court to take discretionary review of the instruction issue. Again, the Commonwealth did not file a cross-motion for discretionary review. Thus, the circuit court's reversal for a new trial because of the admission of the field sobriety test is not an issue before this Court. Green River Dist. Health Dep't v. Wigginton, 764 S.W.2d 475, 479 (Ky. 1989), superseded by statute on other grounds as stated in Withers v. Univ. of Ky., 939 S.W.2d 340, 344-45 (Ky. 1997). This case will be retried. The only issue before us is how to properly instruct the jury upon retrial.
KRS 189A.01
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