Request By:
Honorable John Paul Runyon
Commonwealth's Attorney
P.O. Box 796
Pikeville, Kentucky 41501
Opinion
Opinion By: Frederic J. Cowan, Attorney General, Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to this office in which you requested an Opinion of the Attorney General to advise you how to proceed in certain felony prosecutions of offenses involving Driving Under the Influence of Intoxicants. In your letter, you enumerate three questions for our consideration, to which we will respond in the order in which you have asked them.
First, you ask whether a defendant may be legally prosecuted for a third offense violation of KRS 189A.090 if one or both of his two prior convictions for operating a motor vehicle with a revoked or suspended license resulted from a suspension or revocation under a statute other than KRS 189A.090.
We are of the opinion that the wording of KRS 189A.090 requires that in order for a prosecution to proceed for subsequent offenses under KRS 189A.090(2)(b) or (c), the defendant must stand convicted of prior offenses in which he was convicted of operating a motor vehicle while his license was revoked or suspended for driving under the influence of intoxicants under KRS 189A.090, after a previous conviction for violation of KRS 189A.010. The statute states as follows:
(1) No person shall operate a motor vehicle while his license is revoked or suspended for violation of KRS 189A.010.
(2) Any person who violates subsection (1) of this section shall:
(a) For a first offense, be guilty of a Class B misdemeanor;
(b) For a second offense, be guilty of a Class A misdemeanor;
(c) For a third or subsequent offense, be guilty of a Class D felony.
(3) In addition to the penalties above his operator's license shall be revoked for twice the original period of revocation.
[Emphasis added.] Since subsection (1) only pertains to violations of KRS 189A.010, the defendant must stand convicted of prior offenses in violation of operating a motor vehicle while under the influence of intoxicants during the period his license was suspended or revoked. Should a prosecutor note that the defendant has been previously convicted of operating a motor vehicle while his license was revoked or suspended based upon another statute, e.g. KRS 186.560 or 186.570, the defendant should be prosecuted under the provisions of KRS 186.620(2) and KRS 186.642(3), which provide enhancement penalties for other types of subsequent revocation and suspension violations.
Second, you ask whether the district court must specifically warn a defendant who pleads guilty to a first offense violation of KRS 186.620, 189A.010, or 189A.090 of the possibility of enhancement of punishment, in the event he is found guilty of a subsequent violation of the statute.
In reaching our conclusion, here, we have examined the applicable case law which has been enunciated by both the federal and state courts since the landmark decision of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). These cases make it clear that a criminal defendant must be informed of his rights prior to the entry of his guilty plea. In addition, his guilty plea must be made voluntarily, knowingly, and intelligently; however, nothing in these cases requires the trial court to also inform the defendant, at the time he pleads guilty to a first offense violation, of the possibility of enhancement of punishment for future violations. In Turner v. Commonwealth, Ky.App., 647 S.W.2d 500 (1982), the court held,
. . . a knowing, voluntary and intelligent waiver does not necessarily include a requirement that the defendant be informed of every possible consequence and aspect of the guilty plea. A guilty plea that is brought about by a person's own free will is not less valid because he did not know all possible consequences of the plea and all possible alternative courses of action. To require such would lead to the absurd result that a person pleading guilty would need a course in criminal law and penology.
Id. at 500-01.
We will refrain from answering your third question, since we believe that a previous opinion published by our office is on point. This opinion had not been published at the time you wrote your letter to our office. A copy of OAG 89-19 is enclosed for your convenience.