The New Kentucky Supreme Court Demonstrates Reason Over Passion In Decision that Limits Prejudicial Evidence Which Has No Probative Value By Restricting so called “Police Officer Expert” Medical Testimony and Holding that Evidence of Drug Use With No Proof of Impairment Can Not Be Introduced.

 On Oct. 29th. the Kentucky Supreme Court demonstrated that law, common sense, and good science should prevail over prejudice against anyone who might have mere traces of drugs or intoxicants in their blood. 

 In the case cited below (Burton v. Commonwealth), the court held that the Commonwealth could not introduce evidence that a defendant had traces of drugs in his blood when the uncontested medical testimony by a physician found that the blood test did not prove impairment.  The medical expert testified that cocaine would not impair a user for more than one hour, and that traces of marihuana could be found in the blood for up to six days after it use.   The Commonwealth wanted to use this evidence to prove the required element of “wantonness”.  The Court also disallowed the tendered evidence by a police officer to the effect that he could read the medical record and make a determination that the driver was impaired.    

 The majority opinion was written by Justice Scott.  Justice Scott quoted the late Justice Leibson who wrote some years ago:

 “Certainly we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.”

 The following is a LawReader Synopsis available to LawReader Subscribers.  Due to the importance of this case we have made it available to the public and non-subscribers.

 For full text of case click case number  2006-SC-000784-MR.pdf

 TO BE PUBLISHED

 From HICKMAN Circuit Court

 BURTON, STEVE

 V.

 COMMONWEALTH OF KENTUCKY

 OPINION OF THE COURT BY JUSTICE SCOTT – AFFIRMING IN PART AND REVERSING IN PART.

MINTON, C.J.; CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION WITH ABRAMSON, J., AND CUNNINGHAM, J., JOINING THAT OPINION.  ABRAMSON, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION WITH MINTON, C.J., AND CUNNINGHAM, J., JOINING THAT OPINION.

 (Court quoting Leibson) The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether appellant was driving under the influence, any more or less probable . Certainly we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.

 E “404(b) . . . protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character [or propensity] .

 evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal predisposition, [i .e ., KRE 404] and only if its probative value on that issue outweighs the unfair prejudice with respect to character  the twelve-step Drug Recognition Protocol, which he attempted, in part, to employ, requires an officer’s personal observation, physical testing and examination of the subject.

 the trial court’s ruling appears to have been based solely on the fact that because the defense had an expert, the Commonwealth could have one too. We cannot say that this reasoning is supported by sound legal principles .

 Cook’s unqualified testimony improperly invited the jury to speculate that Burton could have been under the influence of LSD, ecstasy, and methamphetamine -all illicit substances of which there was no evidence.

  OPINION OF THE COURT BY JUSTICE SCOTT AFFIRMING IN PART AND REVERSING IN PART

 A Circuit Court jury convicted Steve Burton of second-degree manslaughter, second-degree assault, and operating a motor vehicle with a suspended license, for which the trial court sentenced him to a total of twenty (20) years imprisonment. He appealed the Circuit Courtjudgment to this Court as a matter of right. Ky.Const. 110(2)(b) .

 For reasons that the undue prejudice arising from the introduction of the urinalysis results, when viewed within the context of the other evidence, substantially outweighed its probative value under KRE 403, and thus were improperly admitted, we reverse Burton’s second-degree manslaughter and second-degree assault convictions . We affirm his conviction for operating a motor vehicle with a suspended license.

 Burton’s convictions stem from an automobile collision that occurred on a rural two-lane road . Burton’s automobile collided head-on with an automobile approaching from the opposite direction driven by Jeffrey Bartolo . James Boyd was a passenger in Bartolo’s automobile . Other than the occupants of the two vehicles, there were no eyewitnesses to the crash.

 Burton said that he had picked up some friends and that someone other than himself was driving the automobile. But when asked to identify the driver, Burton could not. Then again, he claimed he did not know what had happened.

 At the hospital, Burton at first refused a urine sample. After he was informed that a catheter would be used to obtain the sample, he assented and provided the sample . Ultimately, the urinalysis tested positive for the presence of marijuana and cocaine but the tests could not determine the concentration of these substances in Burton’s system or when he had ingested the substances.

 The jury found Burton guilty of second-degree manslaughter and second-degree assault, as well as operating a motor vehicle on a suspended license . Burton was sentenced to a total of twenty (20) years imprisonment…

 Burton filed a motion in limine requesting exclusion of the urinalysis results as irrelevant and inadmissible because the results failed to establish concentration levels or impairment.

 Dr. Martinez explained that the urine test does not indicate whether Burton was under the influence of, or was impaired by, these substances at the

time of the test. The effects of cocaine generally last an hour, but a person’s urine could test positive from two to four days after its ingestion . The effects of

marijuana could last up to six hours, but a person’s urine could test positive seven days after its ingestion.

 Dr. Martinez testified that the urine test indicated absolutely nothing about whether Mr. Burton was impaired at the time of the accident.

 No blood test was performed in this case, nor did the Commonwealth offer any evidence to rebut Dr. Martinez’s testimony.

 In Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992), this Court Against the hoary proposition that we welcome any evidence tending to make a material fact, i .e ., an element of the offense, appear more likely or less likely than it would appear absent that evidence, is counterpoised the equally venerable rule that a defendant may not be convicted on the basis of low character or

criminal predisposition, even though such character or predisposition makes it appear more likely that the defendant is guilty of the charged offense . The upshot is that evidence of criminal conduct other than that being tried is admissible only if probative of an issue independent of character or criminal

predisposition, [i .e ., KRE 404] and only if its probative value on that issue outweighs the unfair prejudice with respect to character [i .e ., KRE 4,03] .

 Justice Leibson, (In Bush) who wrote the majority opinion, but also a separate opinion dissenting in part, framed the issue well in his separate opinion, noting:

 The evidence failed the test of relevance because there was nothing to infer that the presence of marijuana and amphetamine as found in the urine made the ultimate fact at issue, whether appellant was driving under the influence, any more or less probable . Certainly

we have not yet reached the sorry state of affairs where prior use of marijuana and amphetamines, unrelated to the accident, should be considered evidence to prove wanton conduct on the occasion of the accident.

 KRE “404(b) . . . protects against the introduction of extrinsic act evidence when the evidence is offered solely to prove character [or propensity] .

 the trial court must determine if the evidence’s probative value is substantially outweighed by the danger of undue prejudice.

 Thus, an independent act too remote in time will fail the balancing test required by KRE 403.” Commonwealth, 943 S.W.2d 616, 618 (Ky. 1997) ;

 Absent a proper context within the other evidence, the introduction of urinalysis results only encouraged speculation . As such, the only real affect

the urinalysis results could have had was to brand Burton as a user of drugs.

 we must conclude that the trial court abused its discretion in the admission of this evidence and it was error to do so . Within the context of the

other evidence we have reviewed and considering the potential result, we cannot say that the error was harmless .

the day before trial, Burton’s counsel received a fax from the Commonwealth stating that it intended to call Mr. Darrell Cook (Cook); a drug recognition instructor for the Department of Criminal Justice Training facility at Richmond, Kentucky. The fax stated that Cook “will testify in regard to drug recognition and the physical signs which point to use of controlled substances. In this case particularly he will speak to blood pressure, dilated eyes, and other relevant factors.” Burton filed an immediate

written objection to Cook being allowed to testify on grounds that: (1) the Commonwealth’s announcement of its intended use of the expert was too late ;

(2) its expert’s opinion was “not supported by a factual basis ;” (3) “the opinion was thus irrelevant and inadmissible ;” and (4) “the Commonwealth had not

provided a curriculum vitae or summary of his report to allow the court or the defense to determine whether [Mr.] Cook is or is not an expert in his field.”

 the trial court noted its feelings about expert witnesses, stating “you both got one, you let them both in or neither one of them.”

 Cook stated that the fact that a person was “wound up”, not responding to commands, or resistant to medical treatment, was indicative of marijuana, cocaine, methamphetamine, or other drug use.

 However, the twelve-step Drug Recognition Protocol, which he attempted, in part, to employ, requires an officer’s personal observation, physical testing and examination of the subject.

 Notably, Mr. Cook was neither a medical doctor nor a pharmacologist . He did not personally observe, examine, or test Burton. In fact, he acknowledged that Burton’s elevated vital signs and behavior could simply be the result of having just been in a serious car accident and that he could not say definitively whether Burton was under the influence at the time.

 the trial court’s ruling appears to have been based solely on the fact that because the defense had an expert, the Commonwealth could have one too. We cannot say that this reasoning is supported by sound legal principles .

 Cook’s unqualified testimony improperly invited the jury to speculate that Burton could have been under the influence of LSD, ecstasy, and methamphetamine -all illicit substances of which there was no evidence.

 Burton contends that the trial court erroneously denied his mistrial motion after a prosecution witness revealed that Burton had a prior DUI, contrary to the parties’ agreement that his prior DUI would not be mentioned at trial. We note, however, that the prosecutor did not appear to intentionally

elicit the existence of the prior DUI.

 Immediately, the trial court admonished the jury to disregard the answer as “non-responsive” and directed the prosecutor to “get something accurate”

through other questions. A jury is presumed to follow the trial court’s admonition. Martin v. Commonwealth, 170 S.W.3d 374, 381 (Ky. 2005)

 Given this admonition, we find no reason to question the trial court’s decision to deny the mistrial .

 III . CONCLUSION.

 For the foregoing reasons, we reverse Burton’s convictions for second degree manslaughter and second-degree assault and remand the same for

further proceedings consistent with this opinion. We affirm, however, Burton’s conviction for operating a motor vehicle with a suspended license.

 Noble, Schroder, and Venters, JJ ., concur. Minton, C.J . ; concurs in part and dissents in part by separate opinion with Abramson, J., and Cunningham,

J., joining that opinion. Abramson, J., concurs in part and dissents in part by separate opinion with Minton, C.J., and Cunningham, J., joining that opinion.

 MINTON, CHIEF JUSTICE, CONCURRING, IN PART, AND DISSENTING, IN PART: Because it is a startling departure from precedent, I respectfully

dissent from the majority’s conclusion that the urinalysis showing Burton had used marijuana and cocaine is inadmissible .

 COUNSEL FOR APPELLANT:

Shannon Renee Dupree

Assistant Public Advocate

Department of Public Advocacy

100 Fair Oaks Lane

Suite 301

Frankfort, Kentucky 40601

 COUNSEL FOR APPELLEE :

Jack Conway

Attorney General of Kentuc

Bryan Darwin Morrow

Office of the Attorney General

1024 Capital Center Drive

Frankfort, Kentucky 40601

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