Commonwealth v. Crosby, 518 S.W.3d 153

In the early morning, Officer Ingram found Kelly Martin slumped in the driver’s seat of a legally parked car with the engine running, lights on; she was smoking and texting.
Officer Ingram smelled alcohol, Martin admitted drinking, failed field sobriety tests, was arrested, and later registered .181 on a breath test.
At arraignment Martin contested probable cause for arrest and sought to avoid pretrial license suspension; the district court held a suppression hearing.
At the suppression hearing Martin and a witness testified she went to the car to smoke and intended to stay overnight at a friend’s house; the officer testified Martin lied about her residence and had her purse in the car.
The district court applied Wells factors and found only that Martin was awake and the motor was running; it concluded there was no probable cause Martin intended to drive and suppressed post-arrest evidence.
The Commonwealth sought a writ of prohibition/mandamus and appealed; the circuit court and this court affirmed the suppression and denied the writ.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether officer had probable cause to arrest Martin for DUI/physical control of a vehicle	The facts (engine running, lights on, occupant in driver’s seat, purse present, awake and intoxicated) suffice under Wells to infer physical control and intent to drive	No evidence the car was driven while intoxicated or that Martin intended to drive from the parked location; she said she would stay and was using the car to smoke/text	Held: No. First two Wells factors present, but location and intent factors do not support probable cause; suppression affirmed
Whether the Commonwealth could obtain review by writ of prohibition/mandamus of the district court’s suppression order	Writ appropriate because Commonwealth lacks adequate remedy and may be barred from appealing after trial	District court erred in suppressing evidence so review is proper	Held: Writ was properly sought, but district court did not err — suppression properly affirmed

Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986) (sets four-factor test for physical control/operation in DUI cases)
Harris v. Commonwealth, 709 S.W.2d 846 (Ky. App. 1986) (vehicle parked and driver asleep negates intent to drive)
White v. Commonwealth, 132 S.W.3d 877 (Ky. App. 2003) (totality analysis for probable cause; facts showing vehicle in roadway supported finding of operation)
Blades v. Commonwealth, 957 S.W.2d 246 (Ky. 1997) (unoccupied running vehicle left in highway with driver found separately supported conviction)
Commonwealth v. Bell, 365 S.W.3d 216 (Ky. App. 2012) (writs may be used to review suppression orders)
Commonwealth v. Williams, 995 S.W.2d 400 (Ky. App. 1999) (procedural guidance on review of suppression orders)
Commonwealth v. Neal, 84 S.W.3d 920 (Ky. App. 2002) (standard of review for suppression findings of fact and de novo application of law)