 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Johnson v. Commonwealth1/26/2001
AFFIRMING
Edward Johnson appeals the judgment and sentence entered on October 2, 1998, in the Warren Circuit Court convicting him of assault in the first degree. Having concluded that Johnson's plea of guilty to driving under the influence (DUI) that occurred prior to the jury's verdict of guilty on the charge of assault in the first degree did not constitute a double jeopardy violation, we affirm.
On November 10, 1997, Johnson, while under the influence of alcohol, was driving his motor vehicle in Bowling Green, Kentucky, when it collided with a vehicle being driven by Drema Wilson. Johnson and Wilson both suffered very serious, life-threatening injuries from the collision. The blood alcohol test administered to Johnson at the hospital indicated a blood/alcohol level of .25% - two and one-half times the legal limit. Johnson was cited for DUI; and in the Warren District Court on December 4, 1997, he entered a plea of guilty to the DUI charge.
On February 4, 1998, the Warren County grand jury indicted Johnson for assault in the first degree as a result of the November 10, 1997 collision. He was tried and convicted of assault in the first degree by a jury on September 15, 1998. On October 2, 1998, the trial court, in accordance with the jury's recommendation, sentenced Johnson to prison for a term of 12 years. This appeal followed.
Johnson raises two issues on appeal: (1) "the trial court erred in not dismissing the indictment charging [Johnson] with assault in the first degree after he had been convicted of driving under the influence "; and (2) "the court erred in allowing evidence of [Johnson's] intoxication to be admitted into evidence." Johnson contends that since he pled guilty to the charge of DUI, he could not also be convicted of the charge of assault in the first degree that was based on the same course of conduct. He claims the subsequent conviction for assault in the first degree is in violation of the double jeopardy provisions contained in the Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution.
This Court in the recent case of Farmer v. Commonwealth, stated:
Pursuant to the double jeopardy clause of the Fifth Amendment to the United States Constitution, no person shall "be subject for the same offence to be twice put in jeopardy of life or limb[.]" Section 13 of the Kentucky Constitution contains a virtually identical provision. In Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1997), the Kentucky Supreme Court announced a return to the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which is codified at KRS 505.020, determining when a single course of conduct may establish more than one offense. Under this test, " ouble jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute `requires proof of an additional fact which the other does not'" [emphasis added]. Burge, 947 S.W.2d , quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Thus, we must determine whether Farmer's conduct violated two distinct statutes and if so, whether each statute required proof of an element that the other did not.
In the case sub judice, Johnson pled guilty to DUI pursuant to KRS 189A.010(1), which provides:
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) While the alcohol concentration in his blood or breath is 0.10 or more based on the definition of alcohol concentration in KRS 189A.005;
(b) While
Page 1 2 3 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|