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Commonwealth v. Garnett4/16/1999
REVERSING AND REMANDING
This is an appeal by the Commonwealth of Kentucky from a McCracken Circuit Court order granting John Garnett's motion to disallow the use of a 1991 conviction for operating a motor vehicle on a license suspended for driving under the influence (OSL) to enhance his current charge to a felony.
Garnett was indicted for, among other things, Operating a Motor Vehicle on a License Revoked or Suspended for Driving under the Influence , third offense, a Class D felony. Ky. Rev. Stat. (KRS) 189A.090. Garnett filed a motion to disallow the use of a 1991 OSL conviction to enhance his current OSL charge because the 1991 charge was more than five years old. In granting Garnett's motion, the trial court said: "The Court is of the opinion that convictions more than five (5) years old cannot be used for enhancement purposes, because the legislature has set a five (5) year limitation for enhancement purposes under KRS 189A.010."
KRS 189A.090 provides that:
"(1) No person shall operate a motor vehicle while his license is revoked or suspended for violation of KRS 189A.010, nor shall any person who has no motor vehicle or motorcycle operator's license operate a motor vehicle while his privilege to operate a motor vehicle has been revoked or suspended for a violation of KRS 189A.010. "(2) Any person who violates subsection (1) of this section shall: "(a) For a first offense, be guilty of a Class B misdemeanor; "(b) For a second offense, be guilty of a Class A misdemeanor; "(c) For a third or subsequent offense, be guilty of a Class D felony. "(3) In addition to the penalties above his operator's license shall be revoked for twice the original period of revocation."
Unlike the DUI statute, KRS 189A.090 does not include a time limitation on the use of prior OSL convictions to enhance subsequent convictions. The Commonwealth argues that the trial court erred when it added the requirement that in order to use a prior conviction for enhancement purposes under KRS 189A.090 the conviction must have occurred within a five-year period. We agree.
Our task in this case is one of statutory construction. The interpretation of a statute is a matter of law. A reviewing court is not required to adopt the trial court's interpretation, but, rather, must interpret the statute according to the plain meaning of the act and in accordance with its intent. Floyd County Bd. of Educ. v. Ratliff, Ky., 955 S.W.2d 921, 925 (1997). A reviewing court is not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used. Commonwealth v. Frodge, Ky., 962 S.W.2d 864, 866 (1998); Beckham v. Board of Education, Ky., 873 S.W.2d 575, 577 (1994). An appellate court is bound by the words chosen by the General Assembly. Commonwealth, Transp. Cabinet, Bureau of Highways v. Roof, Ky., 913 S.W.2d 322, 326 (1996). "The statute must be tested on the basis of what is said rather than what might have been said." Musselman v. Commonwealth, Ky., 705 S.W.2d 476, 478 (1986); Estes v. Commonwealth, Ky., 952 S.W.2d 701, 703 (1997).
While liberal construction is proper to effect a beneficent purpose, a statute should not be construed so as to give it a meaning which the language of the statute does not fairly and reasonably support as "it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there." Wilson v. SKW Alloys, Inc., Ky. App., 893 S.W.2d 800, 802 (1995) quoting Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247, 248 (1962). Similarly, a court "may not interpret a statute at variance with
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