“Proof that a driver was "under the influence" is proof of impaired driving ability. It is redundant to instruct on impairment as a separate element, and confusing to instruct that the Commonwealth must prove influence but not impaired ability.” “Proof that a driver was "under the influence" is proof of impaired driving ability.” “ Consequently, it is our view that although evidence of impaired driving and/or impaired driving ability is often present in a DUI trial; neither are an essential element of the offense.” (Bridges v. Commonwealth below)

There are two types of DUI convictions under 189A.010, “Driving Under the Influence” and “Per Se” (having a concentration of .10 or greater). The Commonwealth need not introduce proof that the driver was actually “impaired.” The Commonwealth also need not prove that the driver was “intoxicated with alcohol”. The under the influence standard allows a conviction for any driving while under the influence of any substance. But in the wording of the statute and the Cruse decision appear to require actualproof of “impairment” in prosecutions under the “other substances” provisions of KRS 189A.010 Sections (C) and (D).

Judge West in her decision in Cruse v. Commonwealth of Kentucky, 712 S.W.2d 356 (Ky.App. 05/02/1986) noted as follows:

“To expect the Legislature to list every possible substance that might impair one’s driving ability is asking a bit too much. Further, a substance that impairs one person’s ability might not impair another’s. Secondly, the Legislature would also have to describe what quantity of a particular substance could be taken safely.

For example, stewed prunes might impair one person’s ability to drive and might not affect another person’s ability: while on the other hand, a cup of stewed prunes might not affect a particular driver, but a quart of stewed prunes might impair his ability.”

“

"Intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body.

We observe that the General Assembly did not deem it necessary to include the terms alcohol or drugs in its definition but considered the word "substances" to be sufficient. In the words of the court below:

To expect the Legislature to list every possible substance that might impair one’s driving ability is asking a bit too much.

Even though the trial court employed the example of prunes, we select coffee or tea in our analogy. In some individuals the consumption of sufficient amounts of the caffeine liquids produces a state of extreme nervousness, even to the point that the ability to competently drive a car would be impaired. What the statute says is do not fill up with the caffeine substance to such a point that you are a menace behind the wheel.”

CITATIONS DISCUSSING “IMPAIRED DRIVING”

KY Bridges v. Commonwealth of Kentucky, 845 S.W.2d 541 (Ky. 01/21/1993)

(Instruction #3 given)

"Under the influence" means that a person must consume some alcohol or other intoxicating beverage of any type which may impair his driving ability. The intoxicating beverage, whether in small quantities or great quantities, may adversely affect the Defendant’s action, reactions, conduct, movements or mental processes, and may have impaired his reactions so as to deprive him of that control over himself which he would normally possess. It is not necessary for the Commonwealth to prove impaired driving ability or that the Defendant was "drunk", [sic] and it is not necessary that the Commonwealth of Kentucky prove the exact type of intoxicating beverage that a person consumed to warrant a finding by you of guilty.

For a number of reasons, we believe Instruction No. III was improper. First, the instruction equates "under the influence" with mere consumption. This fallacy, combined with the truisms which follow it, rewrites the statute so as to incriminate any person who drives after having consumed any amount of alcohol at any time.

That the equation is indeed fallacious is beyond question. The implication of Instruction No. III, that consumption of any amount of alcohol necessarily puts the consumer "under the influence," defies common sense and, perhaps more to the point, defies the law. It cannot be reconciled with KRS 189.520(3), which provides in part:

(a) If there was 0.05 percent (5/100%) or less by weight of alcohol in such blood, it shall be presumed that the defendant was not under the influence of intoxicating beverages;

(b) If there was more than 0.05 percent (5/100%), but less than 0.10 percent by weight of alcohol in such blood, such fact shall not constitute a presumption that the defendant either was or was not under the influence of intoxicating beverages . ….. (Emphasis added.)

Even the statutory presumption of KRS 189.520(3)(c), that a concentration of 0.10 percent or greater by weight of alcohol in the blood renders a person under the influence, is rebuttable. See, e.g., Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972); Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006 (1938). But it is subsection (a), supra, which most vividly demonstrates that even recent consumption of alcohol is not sufficient to establish conclusively that the consumer is "under the influence."

Bridges also maintains that Instruction No. III was erroneous in stating what the Commonwealth need not prove – i.e., impaired driving ability or that the defendant was drunk. The Commonwealth argues that the instruction was appropriate in this respect in order to present the legal issues involved.

The parties agree that the essential elements of the offense are committed by the operation of a motor vehicle while under the influence of alcohol, and that neither erratic driving nor impaired driving ability are elements of the offense. Hayden v. Commonwealth, Ky. App., 766 S.W.2d 956 (1989). It is beneficial to examine each of these "non-elements" separately.

The statute means to prevent the evil effects of substandard driving resulting from the operation of motor vehicles by persons under the influence of alcohol. We take as legislative facts that: l) alcohol (or other substances) may impair driving ability; and 2) a driver actually under the influence of such substances is impaired as a driver, conclusively, and presents a danger to the public. Proof that a driver was "under the influence" is proof of impaired driving ability. It is redundant to instruct on impairment as a separate element, and confusing to instruct that the Commonwealth must prove influence but not impaired ability.

Clearly the legislature did not intend that actual driving errors attributable to the influence of alcohol should be an element of the offense. Rather, as the Court of Appeals acknowledged in Hayden, that such errors occurred may be evidence, but is not indispensable evidence, that the driver was in fact under the influence.

Like the Court of Appeals in Hayden, we believe that the statutory language as to the elements of the offense is unambiguous and clear on its face. An instruction framed in terms of the statute is sufficient to apprise the jury of what the Commonwealth must prove, and it is unnecessary to elaborate on what the Commonwealth need not prove. See J. Palmore and R. Lawson, Instructions to Juries in Kentucky, Section 9.16 (1990). Upon retrial of this case, Instruction III should be omitted entirely.

The conviction is reversed, the sentence vacated, and this matter remanded to Christian District Court for further proceedings consistent with this opinion.

Stephens, C.J., Leibson and Spain, JJ., concur.

KY Hayden v. Commonwealth of Kentucky, 766 S.W.2d 956 (Ky.App. 03/31/1989)

Evidence of impaired ability is presented at trial through the description of the performance of field sobriety tests which measure psycho-motor functions, hand-eye coordination and reaction time. However, the primary function of the field tests is to give the officer reasonable grounds to believe the defendant is under the influence in order to justify the arrest, the request of the taking of a blood-alcohol test and possible suspension of driving privileges if the test is refused (KRS 186.565).

The statute (KRS 189A.010) is designed to protect users of the highway from the risk created by drivers whose responses are affected by the ingestion of alcohol or other substances which may have a similar effect. It is the risk that when faced with an emergency situation a driver who is under the influence of alcohol might not respond appropriately or quickly enough which the statute is designed to alleviate. Sometimes by dumb luck or the intervention of providence even a driver who is under the influence of alcohol makes the right driving decisions and avoids demonstrating impaired driving. Being under the influence may or may not have resulted in actual impaired driving on that particular occasion. However, it is the percentage of times that impaired driving does result that the statute guards against. While sometimes actual impaired driving is what calls the officer’s attention to a particular vehicle and justifies the initial stop, that justification can also come from minor violations which may or may not demonstrate impaired driving. Consequently, it is our view that although evidence of impaired driving and/or impaired driving ability is often present in a DUI trial; neither are an essential element of the offense.

Appellant, Morton Hayden, was convicted of DUI, second offense, in a jury trial in Daviess District Court. In his direct appeal and before this Court, he contends the trial court erred in overruling his motion for a directed verdict of acquittal based on the Commonwealth’s failure to prove impaired driving ability and refusing to give his tendered instruction which required the jury to find that "his driving ability was impaired due to the influence of alcohol."

Hayden maintains that the holding of Cruse v. Commonwealth, Ky. App., 712 S.W.2d 356 (1986), establishes impaired driving ability as an element of the offense. Further, he argues the rule enunciated by the U. S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560 (1960), that each element of a criminal offense must be proven beyond a reasonable doubt, requires reversal of his conviction.

Although we recognize the holdings of the cited authority, we disagree that the cases cited have application to this case. In Cruse, supra, the Court addressed a constitutional challenge concerning the lack of definition of any "other substances." Our reading of the statute and the opinion in Cruse, supra, is that one can be convicted of violating KRS 189.010(1) by being under the influence of other substances which have the propensity to impair your driving ability, or under the influence of substances which do not ordinarily have such propensities but because of the amount ingested have in fact impaired your driving ability or under the influence of alcohol.

We believe Hayden was simply mistaken as to the elements of the offense therefore. The trial court did not err in overruling his motion for a directed verdict of acquittal nor in refusing to give the tendered instruction.

In appellant, William H. Clark’s, trial for DUI, first offense, in Fayette District Court, the jury was instructed as follows:

You will find the Defendant guilty if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

(a) that in this county on or about August 5, 1987, the defendant was operating a motor vehicle; and

(b) while so doing he was under the influence of alcohol or any other substance which may impair one’s driving ability.

After the jury retired to deliberate, it sent the following written question to the trial judge:

Is it the Commonwealth’s duty to prove that the driving ability of the Defendant was impaired or just might have been impaired?

The trial court declined, over appellant’s objection, to answer the question based upon his opinion that the statutory language was not ambiguous and was clear on its face.

The jury subsequently returned a verdict of guilty which was affirmed on appeal to the circuit court who agreed with the trial judge that neither the wording of the statute nor the instructions were ambiguous and there was no error committed by the trial judge in declining to answer the jury’s question.

We agree.

Clark was alleged to be operating his motor vehicle while under the influence of alcohol. Since no other substance was involved that portion of the instruction which read "or any other substance which may impair one’s driving ability" was surplusage. Because we believe that impaired driving ability is not a necessary element of the offense we likewise believe that the trial court did not err in refusing to answer the jury’s question and the circuit court properly affirmed his conviction.

ALL CONCUR.

KY [U] Harris v. Commonwealth, No. 2001-CA-002711-MR (Ky.App. 08/01/2003)

Appellant argues that the Commonwealth must show evidence of impaired driving ability when it charges a defendant with driving under the influence of alcohol or "any other substance which may impair one’s driving ability," as in this case. Bridges v. Commonwealth, Ky., 845 S.W.2d 541, 543 (1993) (concurring opinion). Appellant contends the Commonwealth failed to show impaired driving ability. We disagree.

The arresting officer was able to point to evidence of impaired driving ability when she testified that she saw, and heard, appellant drive up onto a curb before she pulled her over. In addition, appellant was unable to complete the field sobriety tests. Thus, there was evidence from which the jury could conclude that appellant’s ability to drive was impaired. The trial court properly denied the motion for directed verdict.





KY Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 08/16/2002)

Following a traffic stop on February 18, 2000, Mattingly was arrested and charged with DUI, first offense. Prior to the scheduled trial in Marion District Court, the Commonwealth announced that it was electing to prosecute Mattingly under KRS 189A.010(1)(a) – the so-called"DUI per se" provision. The Commonwealth stated that it intended to produce only evidence that Mattingly was operating a motor vehicle on February 18, 2000, and at that time he had blood- or breath-alcohol concentration of .10 or higher. Based upon this election, the Commonwealth filed a motion in limine, seeking to exclude the introduction of any evidence concerning whether Mattingly was under the influence of alcohol on February, 18, 2000, including evidence of the field sobriety test conducted by the arresting officer. Mattingly opposed the motion, contending that such evidence was relevant to challenge the results of his breathalyzer test.

The district court ultimately granted the Commonwealth’s motion. The court recognized that field sobriety tests have long been used to prove or disprove that an accused was driving under the influence. However, because impaired driving is not at issue to prove DUI per se, the court reasoned that in this case such evidence is irrelevant. Thereafter, Mattingly entered a conditional plea of guilty reserving the rig ht to appeal the district court’s evidentiary ruling.

On appeal, the Marion Circuit Court reversed, determining that field sobriety tests and evidence which may show that a defendant was not under the influence would be relevant to challenge the accuracy of the breathalyzer test. The court concluded that excluding this evidence would violate an accused’s constitutional rights to present a defense. Accordingly, the court set aside the guilty plea and remanded the matter to district court for further proceedings.

Our Supreme Court rejected this argument in Commonwealth v. Wirth, holding that the Commonwealth is not required to make such an election. Rather, the Court held that the Commonwealth is entitled to present evidence of DUI on all grounds where there is evidence to support a conviction. The Supreme Court went on to address the elements required to prove DUI per se, citing with approval a portion of the above discussion in King. However, the Court did not include the language from King opining that any evidence showing that the defendant was not under the influence is irrelevant in a prosecution for DUI per se.

We have now come full circle, with the Commonwealth arguing that it is entitled to make an election concerning under which section of KRS 189A.010(1) it will proceed, and moving to exclude any evidence which might be admissible as a defense under other sections of the statute. Nevertheless, the sole issue presented for our consideration is the relevancy of evidence in a prosecution for DUI per se. Relevant evidence is defined by KRE 401 as:

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

It has been observed that evidence is relevant which"renders a material ultimate fact more probable or less probable than it would be without the item." Stated differently, evidence that tends to prove or disprove an element of a criminal offense is "of consequence to the determination of the action" and, thus relevant.

The Commonwealth asserts that Mattingly should not be allowed to introduce evidence to show that he was not under the influence because that issue is irrelevant to a prosecution for DUI per se. Following the reasoning in King, the Commonwealth contends that the only relevant issues in a prosecution for DUI per se are whether (1) the defendant was operating or in control of a motor vehicle; and (2) the defendant had a blood- or breath-alcohol content of .10 or higher. Because the defendant’s blood- or breath-alcohol content, rather than any actual impairment, constitutes the offense of DUI per se, the Commonwealth argues that any evidence seeking to establish that the defendant was not impaired should be excluded as irrelevant. Rather, the Commonwealth asserts that the defendant is limited to presenting expert testimony to challenge the validity of the breathalyzer test results.

As noted above, the reasoning from King upon which the Commonwealth relies was not necessary to the outcome of that opinion, and is therefore not binding on this Court. And while the Supreme Court in Wirth expressed approval of some of the reasoning of King, it did not endorse the portion of the discussion in King which related to the exclusion of evidence which would be exculpatory under other sections of the DUI statute. Nevertheless, the lack of any controlling authority merely renders this matter an issue of first impression . Furthermore, we find some merit to the statement in King that evidence showing that a defendant was not impaired is not relevant in a prosecution for DUI per se.

King and Wirth both correctly state that there are only two elements necessary to prove DUI per se. The controlling issue on the second element is whether a defendant has a blood- or breath-alcohol content of .10 or higher. In addition, KRS 189A.010 also sets out rebuttable presumptions regarding blood- and breath-alcohol readings in prosecutions under KRS 189A.010(1)(b) or (d). But there is no such presumption when the blood or breath-alcohol reading is .10. Rather, evidence of a reading of .10 or higher or above would establish the completed offense of DUI per se under KRS 189A.010(1)(a). It follows logically that a defendant cannot rebut a breathalyzer reading of .10 or higher by attempting to prove that he was not actually impaired at the time.

However, we do not read King or Wirth to stand for the much broader proposition that evidence concerning alcohol intoxication is never relevant in a prosecution for DUI per se. To the contrary, we conclude that such evidence may be relevant in some cases.

At trial, a defendant could allege that the breathalyzer test must have been inaccurate because he was only slightly intoxicated or not intoxicated at all. To support this position, he could seek to introduce evidence concerning his alcohol intoxication.

For example, an accused could offer proof that he suffers a severe alcohol allergy, thus preventing him from consuming alcohol. Similarly, he could offer proof that he only consumed a single alcoholic beverage a considerable time before administration of the breathalyzer test. Clearly, the evidence in the above examples would tend to impugn any contrary results of a breathalyzer test. Likewise, evidence that an accused performed satisfactorily in a field sobriety test could also tend to impugn the test results showing a blood-alcohol concentration above the legal limit.

Thus, we conclude that evidence concerning alcohol intoxication can constitute circumstantial proof impugning the accuracy of the blood and breath-alcohol concentration tests . Since a jury is entitled to draw reasonable inferences from circumstantial evidence, such evidence is relevant because it makes less probable a material element of DUI per se – whether the accused’s blood- or breath-alcohol concentration was .10 or higher. Therefore, the circuit court properly set aside the district court’s holding excluding the evidence of Mattingly’s performance on the field sobriety tests.

Accordingly, the judgment of the Marion Circuit Court is affirmed and this matter is remanded to the Marion District Court for further proceedings consistent with this opinion.

KY Commonwealth of Kentucky v. Howard, 969 S.W.2d 700 (Ky. 06/18/1998)

The necessity for establishing a zero tolerance statute and the graduated driver’s licensing program comes at least in part from the Alcohol Impaired Driving Countermeasures Act, 23 U.S.C.A. 410 (1991), which provides federal highway grants to those states that establish measures to combat drunk driving. See 23 U.S.C. 410(d)(7).

KY Isaacs v. Smith, No. 97-SC-461-DG (Ky. 06/17/1999)

We agree with the view of the trial court in stating:

"Despite the increasing violence of our society, the parallel between the foresee ability of impaired driving and the foresee ability of shooting another person is untenable."

"[Elvery person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Grayson at 332. Even so, such a duty applies only if the injury is foreseeable. While it is unquestioned that violations of statutes constitute negligence per se, that statement is coextensive with the requirement that the violation "must be a substantial factor in causing the result." Britton v. Wooten, Ky., 817 S.W.2d 443, 447 (1991). However, the mere violation of a statute does not necessarily create liability unless the statute was specifically intended to prevent the type of occurrence which has taken place. Not all statutory violations result in liability for that violation. The violation must be a substantial factor in causing the injury and the violation must be one intended to prevent the specific type of occurrence before liability can attach.

Our holding in this case is not to be construed as requiring a litigant to prove that the exact manner in which the injury occurred was foreseeable.

We think it is clear that so far as foresee ability enters into the question of liability for negligence, it is not required that the particular, precise form of injury be foreseeable – it is sufficient if the probability of injury of some kind to persons within the natural range of effect of the alleged negligent act could be foreseen.

While the Bridges ruling does not require proof of impairment where alcohol is involved. Section (C) and (D) of KRS 189A.010 appear to in fact require actual proof of impairment. Judge West in the Cruse decision mentions that the Legislature has chosen not to provide a list of substances upon which a conviction might be based, she also goes on to describe (perhaps in dicta) a standard for violations under (C) and (D), and this with the wording of the statute appears to require actual proof of impairment in “other substances” prosecutions.

189A.010 Operating motor vehicle with alcohol concentration of or above 0.08, or

of or above 0.02 for persons under age twenty-one, or while under the

influence of alcohol or other substance which impairs driving ability

prohibited — Admissibility of alcohol concentration test results — Presumptions

— Penalties — Aggravating circumstances.

(1) A person shall not operate or be in physical control of a motor vehicle anywhere inthis state:

(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;

(b) While under the influence of alcohol;

(Note that there is no mention of impairment under Section (b) while Sections C and D both mention “impairment”.

(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability ;

(d) While under the combined influence of alcohol and any other substance which impairs one’s driving ability ;

NOTE: We suggest that when the legislature added the phrase mentioning “impairs” in Sections C and D, that they recognized that stewed prunes, laxatives, caffeine, or any other drug might be entirely legal to consume, and in small quantities would not be proof of “intoxication” and for their consumption to arise to the level of a criminal traffic offense, there must be a showing of some actual impairment of "competency to drive a motor vehicle " ( Cruse) . In the unpublished decision of[U] Harris v. Commonwealth, No. 2001-CA-002711-MR (Ky.App. 08/01/2003) the court allowed the case to stand but referred to the fact that the Commonwealth had actually introduced proof of actual impaired driving.

We have found no case in Kentucky where KRS 189A.010 (C) or (D) were cited directly on this point. It is LawReader’s conclusion, that the Commonwealth must introduce proof on actual impairment of driving ability for violations relating to “other substances”. This does not mean that the Commonwealth must introduce proof of actual bad driving.

It is possible that a medical expert could testify that a person of the defendant’s size, having taken 20 mg. of Valium would to a medical certainty have impaired motor OR mental function. In situations involving such substances as drugs, stewed prunes, caffeine, laxatives, etc., there must be some evidence of impairment of motor skills or mental acuity that impairs their ability to drive a motor vehicle, and the best way, but not the only way, to prove that would be to introduce evidence of actual bad driving.

Judge West in Cruse stated:

We observe that the General Assembly did not deem it necessary to include the terms alcohol or drugs in its definition but considered the word "substances" to be sufficient. In the words of the court below:

To expect the Legislature to list every possible substance that might impair one’s driving ability is asking a bit too much.

Even though the trial court employed the example of prunes, we select coffee or tea in our analogy. In some individuals the consumption of sufficient amounts of the caffeine liquids produces a state of extreme nervousness, even to the point that the ability to competently drive a car would be impaired. What the statute says is do not fill up with the caffeine substance to such a point that you are a menace behind the wheel.

We agree with that portion of appellant’s brief to the effect:

A substance can mean literally anything. Ordinary food is a substance, and overeating or eating foods which may thereafter upset your system may impair your ability to operate a motor vehicle.

This is true but the addendum provided by the statute is that if you overeat to a point that you do in fact impair your ability to operate a motor vehicle — then do not drive it.