COMMONWEALTH OF KENTUCKY
51st JUDICIAL CIRCUIT
HENDERSON DISTRICT COURT
16-T-03242
COMMONWEALTH OF KENTUCKY PLAINTIFF
V.
JOSHUA R HALL DEFENDANT
SUPPLEMENTAL BRIEF IN SUPPORT OF JOSHUA HALL’S MOTION TO SUPPRESS
COMES NOW, the Defendant, Joshua Hall, through Counsel, and moves this Court to suppress any and all observations, statements, field sobriety tests, and breathe tests that were obtained after the arresting officer unlawfully stopped him. As grounds for this Motion Joshua Hall states as follows:
INTRODUCTION
This Court previously conducted a hearing on Defendant’s Joshua Hall Motion to Suppress. At the end of the hearing this Court informed both Parties to brief the issues before it. The issue before this Court is whether or not Joshua Hall operated a motor vehicle as prescribed by KRS 189.010(1).
THE DEFENDNAT, JOSHUA HALL WAS NOT OPERATING HIS MOTOR VEHICLE PURSUANT TO KRS 189.010A
KRS § 189A.010(1) states in pertinent part:
A person shall not operate or be in physical control of a motor vehicle anywhere in this state … while under the influence of alcohol.
Therefore, to be properly arrested for the offense of driving under the influence, one must either be operating or in physical control of a motor vehicle while under the influence. Joshua Hall has not violated this statute. Had the Kentucky legislature wanted to criminalize Joshua Hall’s behavior, it could have drafted a statute like the one in Kansas adding the language, “or attempt to”.
No person shall operate or attempt to operate any vehicle within this state while … under the influence of alcohol.
KSA §8-1567 27Move
Additionally, Maryland has a similar statute to that of Kansas, adding the language, “or attempt to.”
A person may not drive or attempt to drive any vehicle while under the influence of alcohol.
MD Code, Transportation, §21-902(a)(1)
Comparing the language of the Maryland and Kansas statutes with that of the Kentucky statute, it is clear that our legislature does not want to criminalize behavior such as Joshua Hall’s where an individual elects to sober-up in an automobile.
A strong public safety argument may be made that a person who recognizes that he or she is in no condition to drive and elects to ‘sleep it off’ in a car should not be penalized for that choice by a DUI conviction.
Stanley Billingsley & Wilbur M. Zevely, Kentucky Driving Under the Influence Law §1:4, p.8 (2010-2011 ed., West 2010)
The Commonwealth could well have charged Joshua Hall with public intoxication, or with disorderly conduct; however, there was no probable cause to arrest Joshua Hall for DUI.
The issue of operation has been addressed by our Courts. The Kentucky Court of Appeals has adopted the following criteria defining “operation” in Wells v. Commonwealth, 709 S.W.2d 847, 849 (Ky. App. 1986):
1. Whether the person in the vehicle was asleep or awake;
2. Whether or not the motor was running;
3. The location of the vehicle and all of the circumstances bearing on how the vehicle
arrived at that location; and,
4. The intent of the person behind the wheel.
The facts in the case at bar are very nearly indistinguishable from those in the Wells case. However, in the Wells case, the defendant had additionally moved the gear shift to the neutral position, whereas there is no evidence that Joshua Hall operated the gear shift in his vehicle at all. By virtue of having shifted his vehicle into neutral, Mr. Wells was a step closer to operating his vehicle than Joshua Hall was, yet the court found that Mr. Wells was not in violation of the statute.
Applying these criteria to the case at bar, the first item weighs in favor of Joshua Hall. He was so soundly asleep that the police were unable to awaken him to the extent EMS was called to the scene. The second item weighs against Joshua Hall, except that the event occurred late at night in January when it is quite reasonable to believe that Joshua Hall had the engine running in order to run the air conditioner in his car. The third item weighs in favor of Joshua Hall. There is no suggestion that the vehicle was driven to its location by Joshua Hall while he was intoxicated. As to the fourth criteria, there were no indicators in Wells or in the case at bar to assist a trier of fact in determining the intent of the defendant. However, as noted by the Wells court, “A sleeping person is seldom operating anything.” Id. at 850. In addition, the gear shift in Joshua Hall’s car was still in park. Joshua Hall would have to wake up and put the car in gear, before he could operate the vehicle. Such a scenario is too speculative to support probable cause for a DUI arrest.
Therefore, in order to overcome the tests listed in Wells, the Commonwealth must show at a minimum that the car was in motion, or that the driver was awake and in ‘actual physical control’ of the vehicle. Circumstantial evidence of recent operation that doesn’t suggest an intent to ‘sleep it off’ may satisfy this test.
Billingsley, Kentucky Driving Under the Influence Law at p. 8.
In the case at bar, the Commonwealth in their argument to the Court discuss the use of inference and circumstantial evidence to establish that the defendant had in fact operated the vehicle while intoxicated before being stopped by the police. The Commonwealth is attempting to establish that Joshua Hall intended to drive away from the scene, thereby criminalizing a potential future action of the defendant. This could constitute a substantial step towards an attempted DUI, which is not legally cognizable as a criminal offense in the Commonwealth of Kentucky. Where does such liability end? Is walking towards the car with keys in your hand while intoxicated also a DUI? However, “close to operation” is still in the realm of potential future actions, and does not constitute a DUI.
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, the Defendant Joshua Hall respectfully requests this court suppress
all evidence obtained during or as a result of the unlawful search and seizure.
Respectfully Submitted
/s/ B.J. Early
______
B.J. Early
Attorney for Defendant
314 Main Cross Street
P.O. Box 245
Hawesville, KY 42348
(270) 927-8887
NOTICE
Please take notice that on February 1, 2017, at the hour of 9:00 A.M. or as soon thereafter as counsel may be heard, in the courtroom of Henderson County Judicial Center 5 N. Main St. Henderson, KY 42420, the foregoing Motion to Suppress will be heard.
CERTIFICATE OF SERVICE
THIS IS TO CERTIFY a true and correct copy of the foregoing Motion was served upon the Plaintiff County Attorney, Steve Gold via efiling and via Fax: (270) 827-6032 this the 20th day of January 2017.
/s/ B.J. Early
______
B.J. Early
2