Criminal: JONES V. COM. (COA 9/29/2006)

CRIMINAL:  Double Jeopardy

DATE RENDERED:  9/29/2006

Commonwealth properly amended the indictment against Defendant originally charged with (1) operating a motor vehicle while DUI (fourth or greater offense), (2) driving on a suspended license (which had been suspended for DUI) while again driving under the influence (third offense), (3) second-degree wanton endangerment, (4) driving with no insurance, and (5) being a first-degree persistent felony offender. TC properly permitted the Commonwealth to amend Count One of the indictment down to DUI second offense, Count Two of the indictment down to a second offense, and Count Five of the indictment to being a first-degree PFO. In doing so, the Commonwealth intended to apply one of Jones’ prior DUI convictions to the PFO charge instead of the DUI charge to avoid the double enhancement problem. There is nothing within any of the provisions of KRS 189A.010 that purport to limit a prosecutor’s discretion to bring whatever charges he or she sees fit against a defendant or to amend those charges. Accordingly, CA rejected Jones’ contention that KRS 189A.010 prohibits the amendment to the indictment that was allowed in this case.

Finally, a conviction for DUI and the use of that DUI as an aggravating factor in a suspended license conviction does not place a Defendant in double jeopardy.

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