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Sutton v. Commonwealth10/21/2005
medy through an application to an intermediate court; or 2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
The Commonwealth conceded in its petition that the district court was acting within its jurisdiction in suppressing the breathalyzer test. The question before the circuit court, therefore, was whether the district court acted erroneously in doing so.
But while granting a writ of prohibition is ordinarily within the discretion of the court, because of the exceptional nature of a writ of prohibition, the court before whom the petition is pending must first make a factual finding as a condition precedent that there is no adequate remedy by appeal or otherwise, and that without the writ there will be great injustice and irreparable injury. See Grange Mutual Insurance Company v. Trude, 151 S.W.3d 803, 809-10 (Ky. 2004). On appeal, this type of finding is reviewed for clear error. Id. Herein, the circuit court failed to make any factual finding as to these conditions precedent. As such, the circuit court's action in granting the writ must be reversed.
With regard to the findings made by the circuit court, based on the record before us, it is difficult to see how the circuit court could find error in the district court's conclusion that KRS 189A.103(7) was violated because the district court's factual findings were based on the stipulation agreed to by the parties that the selection of the Hardin Memorial Hospital to administer the blood test requested by Sutton was solely made by the police officer. The sanction for such a violation, suppression of the breathalyzer test, was well within the discretion of the district court.
For the foregoing reasons, we reverse the Bullitt Circuit Court and remand this matter for entry of an order denying the Commonwealth's petition for a writ of prohibition.
ALL CONCUR.
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