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Univ. of South Carolina School of Law

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Sunday, August 10, 2008

Legislature Under The Influence: Kentucky Court Finds That Driver Lacks Standing To Raise Separation Of Powers Claim In DUI Case

The recent opinion of the Court of Appeals of Kentucky in Veltrop v. Commonwealth, 2008 WL 2940790 (Ky.App. 2008), found that a driver lacked standing to challenge a portion of a Kentucky drunk driving statute but also clearly implied that the contested provision was unconstitutional.  In Veltrop, Melissa Kay Veltrop entered a conditional plea of guilty to driving under the influence in violation of Kentucky Revised Statutes Section 189.010.  However, she reserved the issue of whether Section 189.010(2) of the statute is unconstitutional because it violates the separation of powers principle by unilaterally adopting amendments or additions to the Kentucky Rules of Evidence.

Section 189.010(2) states in relevant part that:

     "With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person's blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (e) of this section."

Veltrop eventually appealed this issue to the Court of Appeals of Kentucky, which found an insurmountable problem with her argument:  Veltrop's breath sample was obtained one hour and eleven minutes after her cessation of operation of her motor vehicle.  Accordingly, Veltrop lacked standing to challenge Section 189.010(2) because even if she were to prevail in having the subsection held unconstitutional, it would have no bearing on her case with her breath sample having been obtained before the two hour mark.  Indeed a judge in Veltrop noted in his concurring opinion, "[i[t would appear from a plain reading of KRS 189A.010(2), the only party which may have standing to challenge this subsection would be the County Attorney or Commonwealth Attorney should a trial court grant a motion to suppress results obtained from a test more than two hours after the driver is stopped."

I agree with the court's opinion(s) because Section 189.010(2) merely states that tests taken after the 2 hour mark are inadmissible; it never states that tests taken within the 2 hour mark are admissible.  Thus, the only potential aggrieved party, and the only party with standing, would be the prosecution.  And it also seems to me that the prosecution would have a winning argument in such a case because Section 189.010(2) clearly makes certain test results per se inadmissible when none of the Kentucky Rules of Evidence would do the same.  Section 189.010(2) would thus be similar to the Arizona malpractice expert witness statute, which, as I noted in a previous post, the Court of Appeals of Arizona found violated the separation of powers.  Indeed, the Supreme Court of Kentucky has already hinted that Section 189.010(2) is unconstitutional. See Lopez v. Commonwealth, 173 S.W.3d 905, 908 (Ky. 2005).          

-CM

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