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Cornelison v. Commonwealth7/7/2000
TO BE PUBLISHED
OPINION AFFIRMING
Gilbert Cornelison appeals from the judgment of conviction entered by the Madison Circuit Court on July 28, 1999, for operating a motor vehicle while under the influence, third offense, a Class D felony. Cornelison entered a conditional plea of guilty pursuant to RCr 8.09 claiming that KRS 189A.010(4)(c) is arbitrary as contemplated by Section 2 of the Kentucky Constitution , and/or violates both the state and federal constitutional guarantees of equal protection. Since we agree with the trial court's determination that the statute is constitutional, we affirm.
The facts underpinning this appeal are not in dispute. On April 26, 1999, at about 5:20 in the afternoon, Cornelison was observed operating a motor vehicle by an officer who believed Cornelison's driver's license to have been suspended. After confirming his suspicions in this regard, the officer stopped Cornelison, who emitted a strong odor of alcohol. Cornelison agreed to submit to a field sobriety test, which he failed. He was placed under arrest and, over an hour later, was administered a breath test which indicated his blood alcohol content to be 0.274. Cornelison was indicted on May 27, 1999, on the felony DUI offense, as well as for operating a motor vehicle while license is suspended for DUI, second offense, a class A misdemeanor.
Cornelison originally entered a plea of not guilty to both offenses and moved the trial court to declare KRS 189A.010(4)(c) unconstitutional. After the trial court denied the motion, Cornelison changed his plea to guilty on the misdemeanor charge and entered a conditional guilty plea on the felony DUI charge. Cornelison was sentenced to jail for three months on the conviction for operating a motor vehicle on a suspended license, and to prison for one year on the DUI conviction, with the sentences to run concurrently. The trial court stated that after Cornelison spent the 120-day minimum mandatory time in jail, it would consider Cornelison's request to be placed on probation in order to attend an alcohol rehabilitation program. This appeal followed.
It is axiomatic that under our system of government, the power to define and redefine crimes, and to prescribe the appropriate punishments therefor, is entrusted to the legislative branch. "The legislature has broad discretion to determine what is harmful to the public health and welfare [citation omitted]." Whether a statute is unconstitutional is a question of law and, in addressing that issue, "the courts will take judicial notice of all pertinent facts that are matters of common knowledge." It is a settled principle that when the Legislature "has enacted a statute, is presumed to have done so in accordance with the constitutional requirements, and that its provisions are not contrary to any constitutional right. . . ." A statute will not be struck down as unconstitutional "unless its violation of the Constitution is clear, complete and unequivocal." Further, the Commonwealth does not bear the burden of establishing the statute's constitutionality. Rather, " he one who questions the validity of an act bears the burden to sustain such a contention."
It is with these principles in mind that we now consider Cornelison's claim that KRS 189A.010(4)(c), is unconstitutional. This statute reads:
Any person who violates the provisions of paragraph (a), (b), (c) or (d) of subsection (1) of this section shall:
(c) If the alcohol concentration is below 0.18, for a third offense within a five (5) year period, be fined not less than five hundred dollars ($500) nor more than one thousand ($1,000) and shall be imprisoned in the county ja
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