While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.
*** THIS DECISION IS DATED BY Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 06/17/2004) – Evans v. Commonwealth, 45 S.W.3d 445 (Ky. 01/25/2001) What Evans seems to have overlooked is that the statutes under review, KRS 189A. 010(l)(a) and (b), merely provide different means of committing the same violation. These subsections do not represent different elements of the offense, but alternative means of committing the same offense. While the alternative means do indeed require different acts, the effect is the same and there is no prejudice so long as evidence is presented from which the jury could reasonably believe both of the subsections had been violated.
KY Division of Driver Licensing v. Bergmann, 740 S.W.2d 948 (Ky. 11/25/1987)
[U] McPeak v. Commonwealth, No. 2002-CA-001214-MR (Ky.App. 05/02/2003)
KY Commonwealth of Kentucky v. Duncan, 939 S.W.2d 336 (Ky. 02/27/1997)
KY Sutton v. Transportation Cabinet, 775 S.W.2d 933 (Ky.App. 04/07/1989)
KY [U] Marston v. Commonwealth, No. 2003-CA-001530-DG (Ky.App. 11/05/2004)
In the Jefferson Circuit Court’s opinion, it held that the proceeding before the district court was a judicial review, pursuant to KRS 189A.220, of the pretrial suspension of Cordova’s license. According to the circuit court, the district court heard testimony from both the arresting officer and the Metro Corrections Officer who had informed Mr. Cordova of the law regarding implied consent in this Commonwealth. After testimony was offered, [the district court] found that the suspension of Mr. Cordova’s license should be reinstated as he had not been advised of the implied consent law, a violation of KRS 189A.220(3). [The district court] based this decision upon the methods taken to inform Mr. Cordova who speaks Spanish.
"A conviction’s possible enhancing effect on subsequent sentences has been held to be merely a collateral consequence of a guilty plea about which a defendant need not be advised. . ." King v. Dutton, 17 F.3d 151 (6th Cir. 1994). "[A] defendant need not be advised that a conviction based on a guilty plea can be used in a subsequent prosecution resulting from a pending investigation." Id. "A guilty plea that is brought about by a person’s free will is not less valid because he did not know all possible consequences of the plea. . ." Turner v. Commonwealth, 647 S.W.2d 500 (Ky.App. 1992). Our analysis of Boykin along with the subsequent cases of King and Turner lead us to the conclusion that, while Boykin requires a knowing entry of a guilty plea, it does not require a complete understanding of every possible future collateral effect of that plea.
Baker determined that a guilty plea to the Indiana charge was an appropriate course of action at that time. There is nothing to indicate that the Indiana plea was not entered into in a knowing manner as regards that crime. To require every person who entered a plea of guilty to be able to completely foretell how that plea may be used in the future would lead to "the absurd result that a person pleading guilty would need a course in criminal law and penology." Id.
We find that it was not error to admit the evidence of the prior Indiana conviction against Baker in the trial of the Kentucky charge. Finding no error, we affirm the judgment of the Henderson Circuit Court.