Price DUI case headed to trial
Aug. 12—A new trial date has been set in the DUI case against Pulaski County Deputy Judge-Executive Dan Price.
Price appeared before Pulaski District Judge Katie Slone on Wednesday afternoon for a pretrial conference which promised to resolve the case. The county official instead walked out with a September 10 trial date.
Price's attorney, Robert Norfleet, had filed a joint motion on July 30 indicating that an agreement had been reached between the defense and Special Prosecutor Thomas Simmons, the Wayne County Attorney who took over following the recusal of the local county attorney's office. The motion did not detail what that resolution might be.
In December 2019, Price was charged with aggravated Operating a Motor Vehicle under the Influence of Alcohol or Drugs (first offense), Careless Driving, and Failure to Use or Improper Signal after being stopped in the Barnesburg community. Kentucky State Trooper Adam Childress, who conducted the traffic stop and served as arresting officer, reported observing Price's county vehicle weaving. Once he made contact with the driver, the trooper reported smelling alcohol and administering a field sobriety test which the deputy judge didn't successfully complete.
Price was initially transported to Lake Cumberland Regional Hospital, where after an unsuccessful attempt to contact an attorney, he declined to have his blood drawn for testing of his blood alcohol level.
Case proceedings were delayed with the onset of the COVID-19 pandemic and subsequent halting of jury trials and most in-person hearings. A subsequent Kentucky Supreme Court ruling from April of this year now prohibits the introduction of a defendant's refusal to submit to a warrantless blood test as evidence of guilt or grounds for a stiffer punishment.
Simmons cited the case, Commonwealth v. McCarthy, as the main reason that he was asking the court to dismiss the DUI and signal charges while amending the Careless Driving charge to Texting from a Personal Communications Device.
Trp. Childress appeared with Simmons, testifying that he was aware of the agreement and respected the prosecutor's position in the matter. He further explained, on questioning from Judge Slone, that evidence of Price texting consisted of his admission after being pulled over.
"McCarthy has tied the Commonwealth's hands," Simmons advised the court. "All we have is the field sobriety test, which can only indicate a presence of alcohol, not intoxication."
Simmons went on to say that the defense has video and witnesses who are prepared to testify that they "thought [Price] was fine" just minutes before he was pulled over.
Upon questioning from Judge Slone, Simmons affirmed that at the time of the stop, the trooper had the right to request the blood test.
"[Childress] did nothing wrong," the prosecutor said. "He did everything by the book."
But Simmons pointed out that there also isn't any video or audio from the actual stop, reducing the case to a "swearing contest" between the trooper's testimony and defense witnesses.
"That's the nature of trial," Judge Slone shot back.
The judge went on to say she didn't see how the McCarthy ruling would make much difference in this case, and further cited KRS 189A.120 which states in part that "when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial."
Simmons argued that he was seeking a dismissal of the DUI charge rather than an amendment which led Judge Slone to cite a 2009 ruling and note that the General Assembly has yet to repeal 189A.120. The prosecutor ultimately agreed to try the case if that was the judge's inclination but asked for a continuance of the August 20 date scheduled.
Norfleet objected to Judge Slone's rejection of the attorneys' proposed agreement, noting that "the Commonwealth concedes it can't meet its burden" of proof beyond reasonable doubt. However, Judge Slone rescheduled the trial to September 10.
After the pretrial conference, Simmons declined to comment — citing the pending nature of the case. Norfleet told the newspaper he was very surprised by Wednesday's turn of events.
"This is the first time in my 16 years of practice that I've had a resolution which had been agreed to by the parties be denied," he said.
Norfleet went on to cite a 2016 United States Supreme Court ruling, Birchfield v. North Dakota, which also found warrantless blood tests to be a clear constitutional violation of the 4th Amendment (protecting citizens from unreasonable search and seizure). As for the 2007 statute which Judge Slone cited, Norfleet opined that the McCarthy case will require state legislators to revisit DUI statutes.
"Prosecutors across the state are moving to dismiss similar cases," Norfleet said. "An individual cannot be penalized or treated differently for exercising his or her constitutional rights."
