Justices Noble and Schroder dissent Makes sense in conviction of drunk -

Ball v. Commonwealth, No. 2008-SC-000430-MR (Ky. 3/18/2010) (Ky., 2010)

 NOBLE, J., Dissenting:

   Consequently, I would hold that the language in KRS 503.060(1), “although the arrest is unlawful” is unconstitutional, and must be stricken from the statute. Without that language, the Appellant is clearly entitled to make his case that the deputy acted unlawfully in his attempt to arrest Appellant, and thus Appellant was entitled to act in self protection if the facts warrant it. He should have received an instruction to that effect, along with an instruction from the judge that the arrest in this case was unlawful. Thus I would reverse, and remand for a new trial.

        SCHRODER, J., joins this dissenting opinion.

  SCHRODER, J., Dissenting.

        I have a problem with a twenty-year sentence for what started as an illegal arrest for public intoxication on Ball’s own front porch. I don’t see the justice.

        This case began with Ball drinking beer with a friend on his front porch in a dry county. A passing officer noticed a beer can next to Ball, and, believing its possession illegal, stopped to question Ball. Ball retreated inside his house with the officer in pursuit. The intoxicated Ball would not submit to the arrest for public intoxication. He pulled an unopened pocket knife from his pocket, which he dropped, and then charged the officer, carrying both out the front door, off the porch, and into the yard. In the ensuing scuffle, Ball bit the officer’s hand. Ball got the worst of it and ended up briefly in the hospital.

        Ball was convicted of third-degree assault, a felony, because the victim was a police officer. KRS 508.025(l)(a) 1. He was sentenced to four years, enhanced to twenty because of his two prior felonies. If he had assaulted someone not a peace officer, he would have received a year or less on a misdemeanor, fourth-degree assault charge. KRS 508.030.

        Intoxication is currently not a justification for resisting an illegal arrest. Likewise, twenty years for a drunken attempt to resist is hardly a punishment befitting the crime. With the cost of incarceration over $20,000 a year, we could spend over $400,000 to house a drunk. Does the sentence make us safer or feel better? I don’t see the justice in this case.

Noble, J., joins.

Comments are closed.