Veltrop v. CommonwealthVeltrop v. Commonwealth
- Reporters:
- , ,
- Before:
- Moore
Lead Opinion
OPINION
BUCKINGHAM, Senior Judge.Melissa Kay Veltrop entered a conditional plea of guilty to driving under the influence, first offense, in violation of Kentucky Revised Statutes (KRS) 189A.010. She reserved the issue of whether
Veltrop was observed operating a motor vehicle in Barren County at 1:24 a.m. on October 2, 2005, by a member of the Glasgow police department. She admitted to consuming a quantity of alcoholic beverages, and she faded a series of field sobriety tests. She was placed in custody at 1:55 a.m. and taken to jail. A breath sample was obtained and tested at 2:35 a.m., showing she had a blood/alcohol concentration of .166 grams/210L, or over twice the legal limit.
After Veltrop was arraigned in the Barren District Court, entered a plea of not guilty, and requested a jury trial, her attorney filed a motion to declare
The circuit court affirmed the order of the district court, stating that there is “a strong presumption that acts of the General Assembly are constitutional.” The circuit court, sitting as an appellate court, found “nothing in the record that would overcome this presumption.” We thereafter granted discretionary review.
The relevant portion of
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in the state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person’s breath or blood taken within two
(2) hours of cessation of operation or physical control of a motor vehicle;
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(2) With the exception of the results of the tests administered pursuant toKRS 189A.103(7) , if the sample of the per*17son’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 (l)(a) or (e) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (l)(b) or (d) of this section.
Veltrop argues that
“The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments[.]” Ky. Const. § 27. No unit of government “shall exercise any power properly belong to either of the others, except in instances hereinafter expressly directed or permitted.” Ky. Const. § 28. “The Supreme Court shall have the power to prescribe ... rules of practice and procedure for the Court of Justice.” Ky. Const. § 116. Whether evidence is relevant to the facts of a case is within the exclusive confines of the “practice and procedure” of the judicial branch of government. O’Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky.1995).
The Commonwealth asserts that since Veltrop’s breath sample was obtained one hour and eleven minutes after her cessation of operation of her motor vehicle, she lacks standing to challenge the constitutionality of the statute. The Commonwealth reasons that “even if Appellant were to prevail in having K.R.S. 189A.010(2) held unconstitutional, it would have no bearing on her case with her breath sample having been obtained before the two hour mark.” Thus, the Commonwealth asserts that Veltrop “can derive no benefit, nor avoid any detriment, based on the outcome of whether K.R.S. 189A.010(2) is held unconstitutional.”
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), the U.S. Supreme Court stated as follows:
[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” (citations omitted)
In Akers v. Floyd County Fiscal Court, 556 S.W.2d 146 (Ky.1977), the Kentucky Supreme Court stated that “[i]t goes without saying that a person who is injured or prejudiced by an unconstitutional law can complain of it.” Id. at 149.
In order for a person to be guilty of violating
Veltrop contends that
Veltrop’s test result was obtained well within the two-hour limit that is set forth as an element of the offense in
The judgment of the Barren Circuit Court is affirmed.
MOORE, Judge, Concurs.
WINE, Judge, Concurs, and Files Separate Opinion.
Notes
. Veltrop has since abandoned constitutional challenges to other portions of
. The Kentucky Supreme Court in the Lopez case noted that it was not therein being asked to determine the constitutionality of
Concurrence Opinion
Concurring:
While I concur with the majority opinion that Veltrop lacks standing to challenge the constitutionality of