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Barker v. Commonwealth9/29/2000
AFFIRMING
As the result of an arrest for operating a motor vehicle under the influence of alcohol (DUI), Steven Barker was convicted in the Clark County Circuit Court of DUI, third offense (DUI III), which, by virtue of his blood alcohol level exceeding 0.18, is a Class D felony. KRS 189A.010(4)(c). Barker argues that the operative statute is unconstitutionally vague and hence must be rendered void and that his conviction therefore must be vacated. Having reviewed and analyzed the applicable law, we affirm.
On October 18, 1998, Barker was arrested for suspected DUI and transported to the Clark County jail. He was administered a blood alcohol test which indicated a blood alcohol concentration of 0.26. Thereafter, Barker was indicted for DUI III, over 0.18, a felony.
Barker moved to suppress the blood alcohol results or to amend the charge to a misdemeanor. Following a hearing on the matter, the trial court denied Barker's motion, finding nothing vague respecting the contents of KRS 189A.010 nor that the consent statute, KRS 189A.105, required a DUI suspect to be informed about the consequences of submitting to a blood alcohol test which results in a reading of 0.18 or greater. Thereafter, Barker entered a conditional guilty plea to the charge of DUI III over 0.18, which plea was accepted by the court. Barker was sentenced to one year of imprisonment, and this appeal followed.
Barker argues that when KRS 189A.010, the DUI presumptions and penalties statute, is construed with KRS 189A.105, the implied consent statute, an irreconcilable conflict results rendering the statutory scheme void-for-vagueness. Specifically, Barker points to KRS 189A.010(4)(c) which provides, in pertinent part:
If the alcohol concentration is below 0.18, for a third offense within a five (5) year period, [he or she shall] . . . be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months . . . . If the alcohol concentration is 0.18 or above, he or she shall be guilty of a Class D felony.
Under the statute, a third time DUI offender with a blood alcohol concentration of 0.18 or more is subject to a felony conviction whereas a misdemeanor conviction is imposed upon an equal recidivist whose blood alcohol concentration is below 0.18. Barker contends that this subsection is incompatible with the consent statute as provided in KRS 189A.105. The essence of Barker's contention is that since KRS 189A.105 requires a person to be informed of the repercussion of refusing to submit to a blood alcohol test, it is equally necessary that he or she be apprised of the consequence that submitting to the test can result in a felony offense for a third time offender should the results read 0.18 or above. The sum of Barker's argument is that, under the statutory terms, the DUI suspect is not adequately informed of the consequences should the test results exceed 0.18, hence the statute is vague, rendering its enforcement arbitrary and capricious in violation of the United States and Kentucky Constitutions. We disagree.
Rather, the void-for-vagueness doctrine requires the penal statute to define the offense with such clarity as to inform persons of ordinary sense as to what conduct is prohibited while not leading to arbitrary or subjective enforcement. Covington v. Commonwealth, Ky. App., 849 S.W.2d 560, 563 (1992). In construing a statute, this court must consider "the purpose which the statute is intended to accomplish--the reason and spirit of the statute--the mischief intended to be remedied." City of Louisville v. Helman, Ky., 253 S.W.2d 598, 600 (1952).
Unquestionably, KRS 189A.010 provides that driving
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