Court of Appeals in 2006 case recognizes powers of DUI prosecutors to amend charges and plea bargain…..

Court of Appeals in 2006 case recognizes powers of DUI prosecutors to amend charges and plea bargain…..

 

In 2006 the Court of Appeals in an unpublished case held that a prosecutor in a DUI case can amend the charges including a reduction in a DUI charge.

This appears to authorize the prosecutor to plea bargain DUI charges in certain situations.  We believe this upholds the independent right of the prosecutor to plea bargain…..the court in Jones v. Commonwealth, No. 2005-CA-001089-MR (Ky. App. 9/29/2006) (Ky. App., 2006)  
 recognized “the broad authority afforded prosecutors to amend indictments on their own accord where warranted.”

 

 The statutory language which appears to restrict plea bargaining is found in KRS 189A.Prosecutor’s duties with regard to amendment of charges Amendment of blood alcohol concentration — Record of charges and amendments.120

 

“ (1) When an alcohol concentration for a person twenty-one (21) years of age or older in

a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a

person under the age of twenty-one (21), or when the defendant, regardless of age,

has refused to take an alcohol concentration or substance test, a prosecuting attorney

shall not agree to the amendment of the charge to a lesser offense and shall oppose

the amendment of the charge at trial, unless all prosecution witnesses are, and it is

expected they will continue to be, unavailable for trial.

 

(2) A prosecuting attorney shall not amend a blood alcohol concentration, and he or she

shall oppose the amendment of the percentage, unless uncontroverted scientific

evidence is presented that the test results were in error. In those cases, the

prosecutor shall state his or her reasons for agreeing with the amendment, and the

scientific data upon which the amendment was made shall be made a part of the

record in this case.

 

(3) The record of charges and disposition thereof, including reasons for amending the

charges, shall be transmitted by the court to the Justice and Public Safety Cabinet

for inclusion in the centralized criminal history record information system under

KRS 17.150.

 

 But see:  Jones v. Commonwealth, No. 2005-CA-001089-MR (Ky. App. 9/29/2006) (Ky. App., 2006)  
We next consider Jones’ argument that KRS 189A.120 prohibited what occurred here. KRS 189A.120(1) provides as follows:

 

        When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.(Italics added).

 

        After much consideration, we do not agree that the language of KRS 189A.120 prohibited the amendment that occurred in this case. As grounds for this conclusion, we believe that the phrases “shall not agree to the amendment of the charge to a lesser offense” and “shall oppose the amendment of the charge at trial” anticipate that the impetus for amending a charge is not that of an independent prosecutorial decision. In reaching this conclusion, we particularly note the General Assembly’s use of the words “agree” and “oppose.” Merriam-Webster’s Collegiate Dictionary gives many definitions for the word “agree” including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to consent to as a course of action”, “to accept or concede something (as the views or wishes of another)”, “to achieve or be in harmony (as of opinion, feeling, or purpose)”, “to get along together”, and “to come to terms”.67 Accordingly, we find no error as to this issue Merriam-Webster’s Collegiate Dictionary 26 (11th ed. 2003). The plain and literal meaning of “agree,” then, contemplates consensus, agreement, or compromise among different parties as to a course of action or an issue in disagreement — not an independent decision by one party to proceed in a certain way as to a particular matter.

 

Likewise, a prosecutor being put in a situation in which he would be required to “oppose the amendment of the charge at trial,” anticipates that he did not request such an amendment of his own initiative and that it instead came from another party. We are obliged to follow and give effect to the plain language of KRS 189A.120(1) as it is written. See Bailey v. Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our decision is consistent with our courts’ views on the broad authority afforded prosecutors to amend indictments on their own accord where warranted, as noted above.

 

FURTHER QUOTES FROM CASE:

As a general rule, “an ‘independent’ motion by a

prosecutor to dismiss or amend an indictment must be sustained

unless clearly contrary to manifest public interest.” Hoskins

v. Maricle, 150 S.W.3d 1, 24 (Ky. 2004), citing United States v.

Cowan, 524 F.2d 504, 513 (5th Cir. 1975). Moreover, “it is

beyond dispute that the executive branch’s prosecutorial

function includes ‘the decision whether or not to prosecute, and

what charge to file or bring before a grand jury.’” Flynt v.

Commonwealth, 105 S.W.3d 415, 424 (Ky. 2003), quoting

Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979), in

turn quoting Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663,

54 L.Ed.2d 604 (1978). As our Supreme Court further noted in

Hoskins: “Few subjects are less adapted to judicial review than

the exercise by Hoskins, 150 S.W.3d at 20, quoting Newman v. United

-5- the Executive of his discretion in deciding when

and whether to institute criminal proceedings, or what precise

charge shall be made, or whether to dismiss a proceeding once

brought.”

States, 382 F.2d 479, 480 (D.C. Cir. 1967). Thus, “[a] judge in

our system does not have the authority to tell prosecutors which

crimes to prosecute or when to prosecute them.” Id., quoting

United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992).

Here, Jones in essence argues that the Commonwealth is

prohibited from choosing under which section or sections of KRS

189A.010 it wishes to proceed in prosecuting a particular

defendant for DUI. We disagree. There is nothing within any of

the provisions of KRS 189A.010 that purport to limit a

prosecutor’s discretion to bring whatever charges he or she sees

fit against a defendant or to amend those charges.

 

 Moreover,

Jones has cited us to no case law in support of his position,

and we can find none in our own research. Indeed, our Supreme

Court has repeatedly held that a case may be prosecuted pursuant

to KRS 189A.010 on multiple theories. See Commonwealth v.

Reynolds, 136 S.W.3d 442 (Ky. 2004); Commonwealth v. Wirth, 936

S.W.2d 78 (Ky. 1996). Accordingly, we must reject Jones’

contention that KRS 189A.010 prohibits the amendment to the

indictment that was allowed in this case.

We next consider Jones’ argument that KRS 189A.120

prohibited what occurred here. KRS 189A.120(1) provides as

follows:

When an alcohol concentration for a person

twenty-one (21) years of age or older in a

prosecution for violation of KRS 189A.010 is

-6-

0.08 or above, is 0.02 or above for a person

under the age of twenty-one (21), or when

the defendant, regardless of age, has

refused to take an alcohol concentration or

substance test, a prosecuting attorney shall

not agree to the amendment of the charge to

a lesser offense and shall oppose the

amendment of the charge at trial, unless all

prosecution witnesses are, and it is

expected they will continue to be,

unavailable for trial.

(Italics added).

After much consideration, we do not agree that the

language of KRS 189A.120 prohibited the amendment that occurred

in this case. As grounds for this conclusion, we believe that

the phrases “shall not agree to the amendment of the charge to a

lesser offense” and “shall oppose the amendment of the charge at

trial” anticipate that the impetus for amending a charge is not

that of an independent prosecutorial decision. In reaching this

conclusion, we particularly note the General Assembly’s use of

the words “agree” and “oppose.” Merriam-Webster’s Collegiate

Dictionary gives many definitions for the word “agree”

including: “to concur in (as an opinion): ADMIT, CONCEDE”, “to

consent to as a course of action”, “to accept or concede

something (as the views or wishes of another)”, “to achieve or

be in harmony (as of opinion, feeling, or purpose)”, “to get

along together”, and “to come to terms”.6 Merriam-Webster’s

6 As “agree” is not defined anywhere within KRS Chapter 189A, it must be

construed according to its common and approved usage. KRS 446.080(4);

Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997), citing

Coots v. Allstate Ins. Co., 853 S.W.2d 895 (Ky. 1993); Gateway Construction

-7-

Collegiate Dictionary 26 (11th ed. 2003). The plain and literal

meaning of “agree,” then, contemplates consensus, agreement, or

compromise among different parties as to a course of action or

an issue in disagreement – not an independent decision by one

party to proceed in a certain way as to a particular matter.

Likewise, a prosecutor being put in a situation in which he

would be required to “oppose the amendment of the charge at

trial,” anticipates that he did not request such an amendment of

his own initiative and that it instead came from another party.

 

We are obliged to follow and give effect to the plain language

of KRS 189A.120(1) as it is written. See Bailey v.

Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v.

Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our

decision is consistent with our courts’ views on the broad

authority afforded prosecutors to amend indictments on their own

accord where warranted, as noted above.7 Accordingly, we find no

error as to this issue.

 

Accordingly, the judgment of the Fayette Circuit Court

is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:

V. Gene Lewter

Lexington, Kentucky

BRIEF FOR APPELLEE:

Gregory D. Stumbo

Attorney General of Kentucky

Courtney J. Hightower

Assistant Attorney General

Frankfort, Kentucky

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