Request By:
Hon. Harold Stumbo
Floyd County Attorney
Prestonsburg, Kentucky 41653
Opinion
Opinion By: [Missing Page]
This is in response to your letter in which you state that in the Floyd County Quarterly Court you have a defendant charged with reckless driving and driving while under the influence of intoxicating liquors. You ask whether the prosecution of either or both of these offense would bar the Commonwealth from prosecution of this defendant on a homicide charge, the homicide occurring at the same date, time and place as the other two offenses, the defendant having also been involved in an accident in which a man was killed. Your question involves the issue of double jeopardy.
First let us consider whether a prosecution for driving under the influence of intoxicating beverages, KRS 189.520(1), would bar a later prosecution for reckless driving.
Section 13 of the Kentucky Constitution states that "No person shall, for the same offense, be twice put in jeopardy of his life or limb. Numerous cases have faced the question of what constitutes the "same offense" . For example in Easley v. Commonwealth, Ky., 320 S.W.2d 778 (1958) the test used to determine whether acts committed simultaneously were one or more offenses was, ". . . if proof of what is set out in the second indictment made on the trial of the first indictment would sustain it, then the two indictments are for the same offense. " Easley, Ky., 320 S.W.2d at 774. Also in Easley the Court stated: "The sameness of place and the close sequence in time of the two events do not require the conduct to be considered as a single transaction when two or more distinct and separate offenses are committed." Easley, Ky. 320 S.W.2d at 779.
For other illustrations of the court's delineation of separate offenses arising out of the same occurrence see Burnett v. Commonwealth, Ky., 284 S.W.2d 654 (1955); Hunt v. Commonwealth, Ky., 338 S.W.2d 912 (1960). In Hunt the Court stated: "Under the 'severable and distinct offense' test two offenses growing out of a single criminal transaction may be separately prosecuted provided that: The elements of the offenses are not the same; one of the offenses is not a degree of the other offense (Ky. Criminal Code of Practice, § 263 [presently RCr 9.86]; the single criminal act violates two statutes or a statute and the common law." Hunt, Ky. 338 S.W.2d at 914.
The problem of when a former prosecution bars a subsequent prosecution for the same offense coming from the same facts has now been codified in KRS 505.040. Subsection (1)(b) of this statute is applicable to the situation you have described. Under this provision a former prosecution bars a subsequent prosecution when the subsequent prosecution is for: "An offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution. . . ." Relying on this statute, the court in Commonwealth v. Barnhill, Ky. App., 552 S.W.2d 241 (1977), found that a conviction for operating a motor vehicle under the influence of intoxicating beverages did not bar a later prosecution of reckless homicide arising out of the same incident. The first prosecution required proof of intoxication which is not required in the second prosecution. Conversely, reckless homicide requires proof of death of another which is not necessary to prove in a prosecution for driving under the influence.
Turning to the first part of your question, it is our opinion that a prosecution of driving under the influence of intoxicating liquor is not a bar to a prosecution of homicide arising out of the same incident.
But the question still remains if a charge of negligent driving, KRS 189.290, will preclude a prosecution of reckless homicide. Our answer is again the same.
In analyzing this part of your question it will be assumed that the defendant is to be charged with reckless homicide under KRS 507.050. This statute states that "A person is guilty of reckless homicide when with recklessness he causes the death of another person." A death of a person must be shown before a conviction would result under this statute, but this proof is not necessary for a prosecution of reckless driving under KRS 189.290. A violation of reckless driving requires that there be proof that a person was operating a motor vehicle in an unlawful manner with disregard for the safety of pedestrians and other driviers, but a prosecution for reckless homicide does not require proof that a person was operating a motor vehicle. [Missing Page]