2 published decisions — (i) dealing with informed consent for BAC/DUI testing of foreign language drivers; (ii) post-incarceration supervision, “close” supervision. A few not to be published of note deal with – (i) premises liability, independent contractor janitor service of government buildings; (ii) motion to set aside default judgment when party failed to keep clerk’s office updated on address changes and claim of not getting notice (not fly); expert witness fees are client’s obligation to pay;
PUBLISHED DECISIONS
796. COMMONWEALTH OF KENTUCKY, EX REL. LOGAN COUNTY ATTORNEY VS. WILLIAMS (HON. KENNETH), LOGAN DISTRICT COURT JUDGE
REVERSING AND REMANDING – LOGAN
Search and seizure, BAC and informed consent, Spanish speaking suspect
The Commonwealth appeals a Logan Circuit Court order denying its petition for a writ of prohibition to prevent enforcement of a suppression order. The underlying issue is whether the Logan District Court properly suppressed a blood alcohol concentration (“BAC”) result collected from Eladio Ortiz, a Spanish-speaking person suspected of drunk driving who was read Kentucky’s implied consent law in English before submitting to a blood draw. The ultimate question is how law enforcement officers inform suspected drunk drivers of the right to refuse blood, breath or urine testing and the consequences of submitting to and refusing such testing as required by KRS1 189A.105. The district court found Ortiz did not have sufficient command of the English language to be “informed” of his rights under Kentucky’s implied consent law by an officer’s reading of the warning to him in English and suppressed the BAC result, a decision with which the circuit court agreed and denied the Commonwealth’s petition for a writ of prohibition. Following review of the briefs, record and law, we disagree with both lower courts and reverse and remand for further proceedings.
On the strength of Rhodes, we hold law enforcement officers satisfy KRS 189A.105(2), which requires a suspected drunk driver be “informed” of specific rights and consequences associated with Kentucky’s implied consent law as expressed in KRS 189A.103, by reading the warning aloud in English to the suspect. There being no statutory requirement for the suspect to understand the implied consent warning, there is no requirement it be provided to him in his native tongue. Because of Bedway, even if Ortiz’ statutory rights were violated, suppression of his BAC result was not mandatory.
790. KENTUCKY DEPARTMENT OF CORRECTIONS, OFFICE OF THE COMMISSIONER VS. MITCHEM (DONELL L.)
AFFIRMING – FRANKLIN
Sentencing, post-incarceration supervision, “close” supervision.
The Kentucky Department of Corrections (DOC) appeals from an opinion and order of the Franklin Circuit Court granting Donell L.
Mitchem summary judgment and holding that Kentucky Revised Statute (KRS) 532.400(1)(b)1 is unconstitutional. We affirm.
In November 2016, Mitchem entered a guilty plea to escape in the second degree (KRS 520.030) and was sentenced to one year’s imprisonment. With application of good time and program credits, Mitchem served out his sentence on February 8, 2017. See 501 Kentucky Administrative Regulation (KAR) 6:080. At the time of his release, Mitchem learned that during his incarceration he had been classified as “close” and was thus subject to a full year of post-incarceration supervision (PIS). In May 2017, Mitchem was returned to custody for failure to maintain contact with his PIS supervisor. His new serve-out date was May 5, 2018.
On December 15, 2017, Mitchem filed an action for declaratory and injunctive relief in the Franklin Circuit Court. He challenged the constitutionality of KRS 532.400(1)(b) and sought his immediate release from the Grant County Detention Center, where he was being held. Mitchem also filed a motion for summary judgment on his claims. The circuit court held three hearings (on February 21, March 21, and March 30, 2018). The circuit court granted Mitchem’s motion for summary judgment, but denied injunctive relief, on March 29, 2018. It then, after the third hearing, granted Mitchem’s release on April 4 of that year. The Department of Corrections appeals.
1 KRS 532.400(1)(b) and 532.400(2) provide for one year of post-incarceration supervision (“PIS”) of individuals who receive a “close” or “maximum security” classification while in the custody of DOC, after their conviction.
SELECTED NOT TO BE PUBLISHED DECISIONS
789. Beasley v. Kaelin
Premises Liability, Independent Contractor and elements of negligence, summary judgement
Slip and fall at driver’s license office at Bowman Field. Affirming summary judgment dismissing claims against clerk and clerk’s office, but reversed summary judgment on liability of housecleaning contractor regarding waxing of floors. Elements of negligence reviewed.
792. Minix v. Stone
Default Judgment, Motion to set aside/vacate under CR 60, Failure to provide correct address to clerk for notice of pleadings
Affirmed – Floyd
The appellant argues that he is entitled to an actual notice of the pleadings herein. It is the opinion of this Court that, pursuant to the Rules of Civil Procedure in effect at the relevant times of this proceeding, the appellee was only required to make a good faith effort to comply with the Rules of Civil Procedure and, combined with the efforts of the Floyd Circuit Court Clerk of sending the documents to the address where he was served constitute compliance with the Civil Rules. The reason why the appellant did not get actual notice is because he gave an incorrect address and never took any action to correct that mistake. The judgment of the court below is not void. Hence, the Rule 60.02 motion of Mr. Minix was properly denied.
The order of the Floyd Circuit Court is AFFIRMED.
800. Damron v. Garrett
Claim alleging negligent maintenance of county road and resultant personal injuries.
Brandi Damron claims she was seriously injured when the vehicle she was driving left Ligon Camp Road in Floyd County and landed upside down in a creek. Alleging negligent road upkeep and violation of Kentucky’s Open Records Act,1 Damron filed suit against Floyd County, its County Judge Executive Hale, and County Road Supervisor2 Gary Garrett. All defendants jointly moved for dismissal on grounds of sovereign immunity, official immunity, and qualified official immunity. On August 12, 2016, the trial court dismissed all official capacity claims against Garrett and some claims against Hale and Floyd County, leaving only the alleged open records violation against the county and Hale and all other claims against Hale and Garrett in their individual capacities.
On December 21, 2018, the trial court granted a joint motion filed by Hale, Garrett and Floyd County seeking summary judgment on all remaining claims. Finding Damron had not shown the injuries from her single vehicle accident to have been proximately caused by a defective road condition, breached duty of care, or negligence by any defendant; road improvement is a discretionary act;3 and the lack of a timely response to the open records request was not due to bad faith, the trial court granted all appellees summary judgment on all remaining claims.
Affirmed circuit court.
801. James t. Scatuorchio LLC v. Johnson
Expert fees.
James T. Scatuorchio, LLC and James T. Scatuorchio (collectively “Scatuorchio”) appeal from the Fayette Circuit Court’s grant of summary judgment to Stephen E. Johnson. The circuit court held thatJohnson, who was retained by Scatuorchio’s attorney to serve as an expert witness, was entitled to recover payment for his services from Scatuorchio. Scatuorchio argues that genuine issues of material fact exist concerning the amount of damages Johnson is entitled to recover and also challenges the trial court’s award of prejudgment interest.
804. Tygrett v. Baptist Healthcare
Retaliation and Kentucky whistleblower statute.
809. Wheatley v City of Elizabethtown
90 day notice to city under KRS 411.110 which requires a claimant to provide the “character and circumstances of the injury” found to be deficient.
MINUTES WITH LINKS TO FULL TEXT OF ALL DECISIONS.
Link to Index of COA Minutes by date at AOC.
