Can the prosecutor amend down DUI charges? This question is not definitively resolved.

Can the prosecutor amend down DUI charges?   This question is not definitively resolved.

 

In 2006 the Court of Appeals seemed to say that the Commonwealth could plea bargain DUI cases, but in 2009 the Supreme Court overruled most of that decision, and strictly applied Chapter 189A.

 

However, there are several undecided issues.

 

As the Supreme Court mentions in their 2009 decision, the “separation of powers” issue has not been directly presented to them and hence is not decided.  That issue raises the question of whether or not the legislative branch can forbid the Executive Branch (i.e. the prosecutor) from exercising his inherent powers to plea bargain.

 

The Code of Professional Conduct prohibits any prosecutor from pursing a claim in which there is no “probable cause”.  Does the statute conflict with that ethical rule?  It also seems odd that the legislature would intend the prosecutor to pursue a case in which he does not believe he has sufficient evidence for a conviction.

 

 

 

Another issue is still without direct authority.  KRS 189A.010(5) (d) and 189A.120(1) provide a list of circumstances under which an amendment is not allowed.  Does the prohibition against amendments only apply to those specific instances (i.e. refusal of B.A. or minor having a B.A. test of .08 or above)? 

 

****

 

This Supreme Court case overrules the Ct. of Appeals in Jones v. Commonwealth  (see full text below) where the Ct. of Appeals attempted to authorize DUI plea bargaining.

 

 

RENDERED : MARCH 19, 2009  TO BE PUBLISHED

 

Jones v. Commonwealth  (Supreme Court decision overruling Ct. of Appeals)

 

                2006-SC-000802-DG.pdf click to read full text

 

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

 

REVERSING AND REMANDING

 

Allen David Jones entered a conditional guilty plea to operating a motor

vehicle under the influence (DUI) (second offense), driving on a DUI-suspended

license (second offense), and of being a persistent felony offender in the first

degree (PFO I) . Jones argues that the Commonwealth violated certain statutory

proscriptions when it moved to amend down his original fourth-offense DUI

charge to a second-offense DUI charge . Because the Commonwealth’s actions

were directly contrary to KRS 189A.120(1), we agree .

 

A grand jury indicted Jones on one count of fourth-offense DUI; 1 thirdoffense

operating a vehicle with a suspended license (which had been

suspended for DUI) ;2 second-degree wanton endangerment;3 driving without

insurance ;4 and for being a PFO  Jones filed a motion to dismiss the PFO

charge because the qualifier for the fourth-offense DUI charge and the PFO

charge were the same, which he argued is an impermissible double

enhancement.

 

In an effort to avoid any impermissible double enhancements, the

Commonwealth moved to amend the fourth-offense DUI to second-offense DUI6

and the third-offense driving on a DUI-suspended license to a second-offense

driving on a DUI-suspended license.? The effect of those amendments was to

save the PFO I charge by applying one of Jones’s prior DUI convictions as the

qualifier for the PFO I charge instead of applying his current DUI charge as the

qualifier.

 

II . FACTUAL AND PROCEDURAL HISTORY

.

Kentucky Revised Statutes (KRS)189A.010(5)(d) provides that a DUI fourth offense

is a Class D felony.

 

KRS 189A.090(2)(c) provides that operating a vehicle with a DUI-suspended license

third offense is a Class D felony.

 

KRS 508.070(2) provides that wanton endangerment in the second degree is a

Class A misdemeanor.

 

See KRS 304.39-080 ; KRS 304.99-060 .

See KRS 532.080.

 

KRS 189A.010(5)(b) provides for a fine and possible incarceration in the county jail

from seven days to six months for a DUI second offense conviction.

 

KRS 189A.090(2)(b) provides that a second offense of operating a motor vehicle with

a DUI-suspended license is a Class A misdemeanor unless at the time of the offense

the person was also guilty of DUI, in which case the offense is a Class D felony.

Jones argued that KRS 189A.010(5) (d) and 189A.120(1) prohibited the

Commonwealth from recommending amending down the fourth-offense DUI

charge.

 

The trial court rejected Jones’s argument and permitted the Commonwealth to amend the charges. Jones then entered the conditional guilty plea set forth above, preserving for appellate review the propriety of the amendment of the DUI-related charges. The trial court sentenced Jones to thirty days’ incarceration on the DUI second charge and one year of imprisonment on the driving on a DUI-suspended license charge, enhanced to ten years’ imprisonment by virtue of the PFO I charge.$ But the trial court

suspended those sentences and ordered Jones to be placed on probation for five years . The Court of Appeals affirmed . We granted discretionary review and reverse the Court of Appeals.

 

III . ANALYSIS .

 

Jones does not contest the fact that he refused to submit to an alcohol

concentration test. For purposes of this case, KRS 189A.120(1) provides, in

relevant part, that “a prosecuting attorney shall not agree to the amendment of

the charge to a lesser offense . . .” in DUI cases in which the defendant has

refused an alcohol concentration test .

 

 Despite the seemingly straightforward s The wanton endangerment and driving without insurance charges were dismissed.

 

We have strong concerns over whether KRS 189A .120(1) and 189A.010(5)(d) violate

the separation of powers doctrine. However, for whatever reason, the

Commonwealth has not raised a separation of powers argument, meaning that

issue is not properly before us.

 

The Court of Appeals concluded that KRS 189A .120(1) only prohibited

the Commonwealth from agreeing to a defendant’s motion for a reduction in

charges while leaving the Commonwealth free to file its own motion to reduce

the DUI charges. We do not share this impermissibly narrow construction of

the word “agree.

 

KRS 446.080(4) requires that we construe the words of all statutes

“according to the common and approved usage of language,” unless the words

“have acquired a peculiar and appropriate meaning in the law . . . .” There is

no indication that the simple word agree has acquired a peculiar meaning in

the law.

So we must construe the word according to its ordinary meaning.

According to Webster’s Dictionary, the word agree means “to concur in”

or “to consent to as a course of action . . . . ..

 

 Clearly, the Commonwealth concurred in, or consented to, the amendment of Jones’s DUI fourth charge to a DUI second charge. After all, it was the Commonwealth that sought the

amendment. …

 

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.

KRS 189A.120(l).

 

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 24 ( 10th ed. 2002) .

motion to amend Jones’s DUI fourth charge, we would ultimately have to come

to the illogical conclusion that the Commonwealth did not “agree” to the very

action sought by its own motion . Or, in other words, how can it logically be

said that the Commonwealth did not “agree” to the amendment of Jones’s

charges when the Commonwealth itself sought those amendments?

 

And we see no indication in the plain language of KRS 189A.120(1) that

would cause us to conclude that the Commonwealth is only prohibited from

concurring in a defendant’s motion to amend a DUI charge while remaining

free to seek such an amendment on its own. Such a conclusion would be

illogical.

 

Why would the General Assembly enact a statute that would forbid

the Commonwealth from agreeing to an action if proposed by a defendant but

that would allow the Commonwealth to seek that very same action on its own?

 

By contrast, the proper construction we have given KRS 189A.120(1) causes

that statute to stand for the clear and logical proposition that the

Commonwealth may not join a defendant’s motion to amend DUI-related

charges, nor may the Commonwealth seek such an amendment on its own.

 

So the possibility of prosecutorial word games is eliminated . After all, tortured

semantics and word games simply cannot magically convert a DUI fourth

offense into a DUI second offense .

 

We fully recognize the wide latitude normally given to prosecutors to

determine what charges, if any, to bring against a potential defendant. 12 And

we have adopted the federal courts’ view that an “independent” motion by a

1 2 See, e.g., Flynt v. Commonwealth , 105 S.W.3d 415, 424 (Ky. 2003) .

prosecutor to dismiss or amend an indictment should be granted “unless

clearly contrary to manifest public interest.”

 

 On this point, the General Assembly has already expressed the public interest of this Commonwealth through the enactment of KRS 189A.120(1), which quite plainly prohibits the

Commonwealth from agreeing to an amendment like the one in the case at

hand.

 

This case is unusual in that the amendments the Commonwealth

successfully sought did not appear to reduce the overall possible sentence

Jones faced . But KRS 189A.120 contains no escape hatch for the

Commonwealth, and a longstanding rule in this Commonwealth prohibits a

court from judicially creating and grafting exceptions onto a statute when the

General Assembly did not see fit to do So.  

 

So we may not graft a judicially created exception onto the simple and plain language of KRS 189A.120(1) to permit the Commonwealth to agree to the reduction of DUI-related charges so long as the reduction would not reduce a defendant’s possible sentence .

Although it is possible that the General Assembly may have intended only for

the Commonwealth to refuse to accede to a reduction that would have lessened

a defendant’s ultimate sentence, we must construe the statutes as enacted;

13 Hoskins v. Maricle , 150 S .W.3d 1, 24 (Ky. 2004) .

 

14 Hawley Coal Co. v. Bruce, 252 Ky. 455, 67 S.W.2d 703, 705 (1934)

 

 (“Where the Legislature has made no exception to the positive terms of a statute, the

presumption is that it intended to make none, and it is not the province of a court

to introduce an exception by construction. The power to create exceptions by

construction can never be exercised where the words of the statute are free from

ambiguity, and its purpose plain.”) (citations omitted) . and we may not “speculate what the General Assembly may have intended but failed to articulate . . . .”15

 

IV. CONCLUSION .

 

The opinion of the Court of Appeals is reversed. Jones’s convictions are

vacated, and this matter is remanded to the trial court for proceedings

consistent with this opinion. 16

 

Minton, C.J . ; Abramson, Cunningham, Noble, Scott, and Venters, JJ .,

sitting. Abramson, Noble, Scott, and Venters, JJ., concur. Cunningham, J.,

dissents by separate opinion . Schroder, J., not sitting.

 

CUNNINGHAM, J., DISSENTING: I respectfully dissent. This Court

ignores the unique prerogatives of the prosecutor within our legal framework.

In Fly t v. Commonwealth, this Court stated that “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[.]‘

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. Ha ryes,

434 U.S . 357 (1978) . Further, in Hoskins v. Maricle , this Court recognized that

“an `independent’ motion by a prosecutor to dismiss or amend an indictment

must be sustained unless clearly contrary to manifest public interest.”

is Peterson v. Shake, 120 S.W.3d 707, 709 (Ky. 2003) .

 

16 Because this case may be resolved through our interpretation of KRS 189A.120(1),

it is unnecessary for us to analyze Jones’s alternate argument that the

Commonwealth’s actions also violated KRS 189A.010(5)(d), which provides that a

person who operates a motor vehicle while under the influence of alcohol for a

fourth or subsequent offense shall “be guilty of a Class D felony.”

150 S.W.3d 1, 24 (Ky. 2004) (citation omitted) .

 

In this case, the Commonwealth did not act contrary to the public’s interest in amending the

charge . In fact, it amended the charge so as to seek a more severe penalty

than would have been available otherwise . Further, the Commonwealth clearly

had the authority to seek this combination of charges in the initial indictment .

The language of KRS 189A .120(1) prevents the prosecutor from agreeing

to a request to amend the DUI charge. Further, it mandates that the

prosecutor oppose a defense motion to amend the charge to a lesser offense .

However, the language in KRS 189A.120 does not expressly prohibit a

prosecutor from exercising independent discretion and seeking a more severe

penalty under these circumstances . Further, in light of the prosecutor’s

authority set out above, such action falls squarely within the authority

reserved to the prosecutor . In turn, once the Commonwealth exercises its

authority in seeking to prosecute the facts under an offense other than a

“fourth or subsequent offense,” the language of KRS 189A.010(5)(d) has no

application. Neither do I agree with the majority’s understanding of “agree.” It

is clear from its reading that the whole purpose of KRS 189A.020(1) is to

prohibit the defendant from procuring a reduced charge through plea

negotiations. Otherwise, it would have been a simple matter for the legislature

to have written that “a prosecuting attorney shall not move to amend the charge

to a lesser offense . . . .”

 

For these reasons, I cannot join the majority opinion .

 

COUNSEL FOR APPELLANT:

V. Gene Lewter

Department of Public Advocacy

100 Fair Oaks Lane

Frankfort, Kentucky 40601

 

COUNSEL FOR APPELLEE:

Jack Conway

Attorney General of Kentuc

Courtney J. Hightower

Assistant Attorney General

Office of Attorney General

Criminal Appellate Division

1024 Capital Center Drive

Frankfort, Kentucky 40601-8204

 

FULL TEXT OF COURT OF APPEALS DECISION:

 

Allen David JONES, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2005-CA-001089-MR.

Court of Appeals of Kentucky.

September 29, 2006.

        Appeal from Fayette Circuit Court, Honorable Pamela R. Goodwine, Judge, Indictment No. 04-CR-00840.

        V. Gene Lewter, Lexington, Kentucky, Brief for Appellant.

        Gregory D. Stumbo, Attorney General of Kentucky, Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky, Brief for Appellee.

        Before: HENRY, JOHNSON, and SCHRODER, Judges.

OPINION

        HENRY, Judge:

        On April 1, 2005, Allen David Jones entered a conditional guilty plea relating to a number of charges resulting from his arrest for driving under the influence and driving with a suspended license. He now appeals on the grounds that the trial court erroneously allowed the Commonwealth to amend the indictment against him, and that he has been subjected to double jeopardy. Upon review, we affirm.

        On July 12, 2004, Jones was indicted by the Fayette County Grand Jury on charges of (1) operating a motor vehicle while DUI (fourth or greater offense),1 (2) driving on a suspended license (which had been suspended for DUI) while again driving under the influence (third offense),2 (3) second-degree wanton endangerment,3 (4) driving with no insurance,4 and (5) being a first-degree persistent felony offender.5 On July 15, 2004, Jones appeared before the Fayette Circuit Court with counsel and entered a “not guilty” plea to all charges.

        On August 12, 2004, Jones moved to dismiss Count Five of the indictment on the ground that the Commonwealth was attempting to use for PFO enhancement purposes the same DUI convictions that were the basis for the felony charge in Count One, thus creating an impermissible double enhancement. On September 8, 2004, the Commonwealth moved to amend Count One of the indictment down to DUI second offense, Count Two of the indictment down to a second offense, and Count Five of the indictment to being a first-degree PFO. In doing so, the Commonwealth intended to apply one of Jones’ prior DUI convictions to the PFO charge instead of the DUI charge to avoid the double enhancement problem. Jones argued in response to the Commonwealth’s motion to amend that KRS 189A.010 and KRS 189A.120 prohibited the DUI charge in Count One from being amended down to a misdemeanor and, accordingly, the PFO charge in Count Five had to be dismissed.

        On October 6, 2004, the trial court entered an order sustaining the Commonwealth’s motion to amend the indictment and rejecting Jones’ motion in opposition. In doing so, the court held that Riley v. Commonwealth, 120 S.W.3d 622 (Ky. 2003) and Flynt v. Commonwealth, 105 S.W.3d 415 (Ky. 2003) “both address the discretion of the Commonwealth to choose how to proceed in prosecuting cases and allows for the amendment of an indictment to add status charges for purposes of enhancing penalty.” The court continued: “PFO is a status, not a criminal offense. . . . An amendment such as this does not affect the defendant’s substantial rights because he is or should be aware of his own criminal record.” The court further cited to State v. Whitten, 622 A.2d 85 (Me. 1993) and Howard v. State, 377 N.E.2d 628 (Ind. 1978) for the proposition that “[o]ther jurisdictions have held that the amendment of an indictment or information to add `habitual criminal’ count did not charge separate offense[s] but only provided a more severe penalty for the indicted offense.” The court finally noted:

        Furthermore, the legislature did not exclude the offenses set forth in KRS Chapter 189A from the persistent felony offender statute. While the Court agrees that the Commonwealth cannot use the persistent felony offender statute and a DUI Fourth or greater offense to enhance the same charge, the Court finds that the Commonwealth has complete discretion in choosing how to proceed with prosecuting criminal cases, including the strategic manipulation of offenses in order to proceed at trial and argue for the maximum punishment allowable by law.

        On April 1, 2005, Jones filed a petition to enter into a conditional guilty plea as to Counts One, Two, and Five of the indictment. In return for this plea, the Commonwealth recommended a sentence of 14 days and a $350.00 fine for Count One, a ten-year PFO-enhanced sentence for Count Two, and dismissal of Counts Three and Four. This petition was accepted by the trial court, and on April 6, 2005, the court entered a judgment finding Jones guilty of the aforementioned counts. On May 10, 2005, the court entered a final judgment dismissing Counts Three and Four and sentencing Jones to 30 days’ imprisonment for Count One (in lieu of a $350.00 fine) and a ten-year PFO-enhanced sentence for Count Two. However, after considering the pre-sentence investigation report, the court suspended imposition of this sentence and ordered Jones to be placed on probation for five years, subject to a number of conditions. This appeal followed.

        On appeal, we first address Jones’ argument that the trial court erred in allowing the Commonwealth to amend Count One of the indictment from DUI fourth offense to DUI second offense. He specifically contends that KRS 189A.010 requires that his crime be prosecuted as a felony, and that KRS 189A.120 prohibits an amendment down where a defendant refuses an alcohol or drug test.

        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 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.” Hoskins, 150 S.W.3d at 20, quoting Newman v. United 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 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 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.

        We next consider Jones’ contention that convicting him of both DUI and driving on a license suspended for DUI (with the aggravating factor that he was DUI at the time of the offense) constitutes double jeopardy. Although this issue was not raised below, as it involves a double jeopardy claim, we may consider it on appeal. See Phillips v. Commonwealth, 679 S.W.2d 235, 236 (Ky. 1984); Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky. 1978); Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky. 1977).

        Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996), our Supreme Court “reinstated the `Blockburger rule,’ Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as incorporated in KRS 505.020, as the sole basis for determining whether multiple convictions arising out of a single course of conduct constitutes double jeopardy.” Taylor v. Commonwealth, 995 S.W.2d 355, 358 (Ky. 1999), citing Burge, 947 S.W.2d at 809-11. Applying the “Blockburger rule” in this case requires us “to determine whether the act or transaction complained of constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of a fact the other does not. . . . Put differently, is one offense included within another?” Burge, 947 S.W.2d at 811, citing Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1995). Here, Jones pled guilty to a second-offense DUI and to operating a motor vehicle while his license was suspended for DUI. Because the suspended license charge was Jones’ second offense within a five-year period, and because it occurred while he was DUI, the charge was enhanced to a Class D felony. KRS 189A.090(2)(b). Jones argues that a conviction for DUI and the use of that DUI as an aggravating factor in his suspended license conviction place him in double jeopardy, as the same offense is involved in two separate charges against him. We disagree.

        The fact that Jones was operating a motor vehicle while his license was suspended for DUI was sufficient, in and of itself, to support the suspended license conviction. KRS 189A.090(1).8 The question of whether he was DUI at the time of the offense goes only to the enhanced penalties available against repeat offenders. KRS 189A.090(2)(b).9 This fact is of importance because our Supreme Court has repeatedly held that “[a]ggravating circumstances are not criminal offenses subject to double jeopardy considerations.” Furnish v. Commonwealth, 95 S.W.3d 34, 51 (Ky. 2002); see also Caudill v. Commonwealth, 120 S.W.3d 635, 677-78 (Ky. 2003) (“Nor is it double jeopardy to convict a defendant of robbery or burglary and then use the same offense as an aggravating circumstance authorizing capital punishment.”); Woodall v. Commonwealth, 63 S.W.3d 104, 132 (Ky. 2001) (“Simply because the aggravating circumstance duplicates one of the underlying offenses does not mean that the defendant is being punished twice for the same offense.”); St. Clair v. Roark, 10 S.W.3d 482, 487 (Ky. 1999) (“Nor is it double jeopardy to impose a separate penalty for one offense while using the same offense as an aggravating circumstance authorizing imposition of capital punishment for another offense.”). Because DUI is not an element of the charge of operating a motor vehicle on a license suspended for DUI, and because operating a motor vehicle on a suspended license is not an element of DUI, we find that each charge requires “proof of an additional fact which the other does not” and that Jones consequently was not subjected to double jeopardy. Therefore, his argument must be rejected.

        Accordingly, the judgment of the Fayette Circuit Court is affirmed.

        ALL CONCUR.

—————

Notes:

1. Pursuant to Kentucky Revised Statutes (“KRS”) 189A.010.

2. Pursuant to KRS 189A.090.

3. Pursuant to KRS 508.070.

4. Pursuant to KRS 304.39-080.

5. Pursuant to KRS 532.080.

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 Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962).

7. Further, the Kentucky Rules of Criminal Procedure contemplate broad discretion of prosecutors to amend charges. See RCr 3.13 and 6.16. We are also mindful that in DUI cases the degree of a charge must sometimes be amended when an underlying conviction proves invalid or cannot be proven for some reason other than the Commonwealth’s inability to produce a witness.

8. KRS 189A.090(1) provides: “No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device in violation of KRS 189A.345(1).”

9. KRS 189A.090(2)(b) provides: “For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years.”

—————

 

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