CRIMINAL: Defendant found to have no standing to challenge KRS 189A.010(2) constitutionality since not harmed by changes in law: VELTROP V. COM. (COA 8/1/2008)

VELTROP V. COM.
CRIMINAL:  DUI, standing
2007-CA-000385
PUBLISHED: AFFIRMING
PANEL:  BUCKINGHAM PRESIDING; MORE CONCURS; WINE CONCURS WITH SEP. OP.
BARREN COUNTY
DATE RENDERED: 8/1/2008

CA rejected Defendant’s challenge to KRS 189A.010(2) as unconstitutional alleging it violated the separation of powers principle by unilaterally adopting amendments or additions to the Kentucky Rules of Evidence (KRE).  KRS 189A.010(2) permits the introduction of a breath test taken after the two hour operation window.  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.”  Veltrop’s test result was obtained well within the two-hour limit that is set forth as an element of the offense in KRS 189A.010(1)(a).

Because the test result was within that time period, KRS 189A.010(2) had no relevance or application to her case. She therefore could not have suffered any injury or harm.  While this portion of the statute may be unconstitutional as a rule of evidence, we fail to see how Veltrop has standing to challenge it.

Digested by Scott C. Byrd

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