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In 2006 the Court of Appeals in an unpublished case held that a prosecutor in a DUI case can amend the charges including a reduction in a DUI charge.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