Request By:
Hon. Robert Hines, Jr.
Assistant County Attoney
McCracken County Courthouse
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you ask for an opinion as to whether it is proper to conduct a bifurcated trial on a second or succeeding offense charge of operating a motor vehicle while under the influence of intoxicants.
An examination of the statute in question, KRS 189.520, shows that there is no provision for a bifurcated trial. Judge Palmore in his Kentucky Instructions to Juries s. 9.31 also does not provide instructions for a bifurcated trial. The instructions contemplate a single trial.
The only statutory provisions for a bifurcated trial apply to persistent felony offenders, KRS 532.080(1), and death penalty cases, KRS 532.025. In addition to the statute which is the subject of this opinion, other statutes not requiring bifurcated proceedings are the recidivist provisions in the controlled substances statutes (KRS 218A.140, 218A.990) and in the local option statutes (KRS 242.230, 242.990).
Prior to the enactment of the persistent felony offender statute permitting bifurcated proceedings, habitual criminals were tried at a single trial. The constitutionality of the single trial method has been upheld by the highest courts. Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L.Ed2d 606 (1967); Cole v. Commonwealth, Ky., 553 S.W.2d 468 (1977); Wilson v. Commonwealth, Ky., 476 S.W.2d 622 (1971).
Since the Kentucky Supreme Court and the United States Supreme Court have ruled that it is not a due process violation to conduct a single trial for recidivists, we are bound by those decisions until a Supreme Court is persuaded by a defendant to change its mind. In view of the Supreme Court decisions and since there is no statutory provision for a bifurcated trial, it would be improper to conduct separate trials on the guilt and punishment aspects of a criminal charge of being an habitual offender for operating a motor vehicle while under the influence of intoxicants.
See also 1 Wharton's Criminal Evidence s. 241 p. 535 where it is stated:
"Evidence of another crime is proper whenever a statute provides for enhanced punishment of the defendant because of a prior conviction. In such case, the prior conviction must be established, and the only question would be whether there has been adequate proof thereof."
Sincerely yours,
STEVEN L. BESHEAR, ATTORNEY GENERAL
James H. Barr, Assistant Attorney General