author: SCOTT, Justice.

text:
    David Lee ROBINSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-000050-MR.
    Supreme Court of Kentucky.
    Sept. 22, 2005.
    As Modified on Denial of Rehearing Jan. 19, 2006.

      Thomas M. Ransdell, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Gregory C. Fuchs, Assistant Attorney General, Office of Criminal Appeals, Attorney General’s Office, Frankfort, Counsel for Appellee.
   SCOTT, Justice.

The Appellant, David Lee Robinson, was convicted by the Grayson Circuit Court of Manufacturing Methamphetamine, First-Degree Trafficking in a Controlled Substance (Methamphetamine), Possession of Marijuana, and Possession of Drug Paraphernalia. He was sentenced to 20 years for manufacturing and ten 10 years for trafficking, 12 months and a $500 fine for possession of marijuana and 12 months and a $500 fine for possession of drug paraphernalia. The court ordered the felony sentences be run consecutively for a total of thirty (30) years and the misdemeanor sentences were to run concurrent therewith. For the reasons set forth herein, we affirm the Appellant’s convictions on all counts, but reverse and remand for a new sentencing phase.

FACTS

On August 7, 2001, Benjamin Campbell went to the home, of James Clemons, a close friend of his father, for the purpose of sharing the news of his August 6, 2001, marriage to Samantha (Higdon) Campbell. Benjamin, however, was surprised by the less than friendly reception he received upon his arrival at the Clemons house; in fact, Clemons ran Benjamin off his property.

Benjamin appeared upset upon his return to his new bride. Samantha then decided to pay a visit to James Clemons to see just why her husband had been treated so poorly.

When Samantha reached the Clemons house, there was a man on the front porch calling someone on his cellular telephone. When she asked to speak to Clemons, she was told Clemons was not there; Samantha, though, knew Clemons was there. After the man on the front porch left, she walked to the back of the house whereupon she detected the smell of ether. She then looked through the window of the back door where she saw “the liquid fire (drain cleaner) and coke bottles and hoses and the white powdery substance and stuff like that.” She knew what the stuff was because her husband was on drugs and she, too, had taken methamphetamine. There were four persons in the house; she recognized Clemons as one of them, but did not recognize, at that time, any of the others. She also saw one of the individuals smoking the powdery substance in a light bulb, a common method of methamphetamine use. She went back to the front of the house because she felt “there was trouble there.”

When she returned to the front of the house, Clemons came out to speak to her. According to Samantha, “He was cussing and I asked him about Ben, and he said Ben was trouble.... I just know that he said he didn’t want him there.” Clemons told her to leave and, again, began cursing. Ultimately, he shoved her off the porch, referring to her as a “whore” and “bitch.”

The next morning, the newlywed Camp-bells went to the Leitchfield Police Department to report the incident. The report was given to the Deputy Dennis Poteet of the Grayson County Sheriff’s Office as it was determined to have occurred outside the city limits.

Samantha then related to the Deputy the events of the previous day. She told him she smelled ether and that there was still smoke in the room from the individuals having smoked the “crank.” She reported she recognized Clemons and that there were three other males she did not recognize. The Appellant, David Robinson was one of the males Samantha later identified as being present that day; though she did not know his identity at that time.

Soon thereafter, Deputy Poteet obtained a search warrant for the Clemons residence. At the time of the execution of the search warrant, Clemons was not at home, but the Appellant was present in the residence. In what was believed to be the Appellant’s bedroom, the search uncovered two small packets of what was later determined to be methamphetamine, a partial marijuana cigarette and other drug paraphernalia, including a light bulb.

In the kitchen of the residence was a bottle with capsules of MSM, plastic baggies, coffee filters, salt, and an additional packet of white substance. Additional paraphernalia in the form of scissors and a pair of hemostats was found in the living room.

In the back of a pickup truck, parked behind a garage near the house, police found a glass jar with a coffee filter on the top of it, a 20 oz. Sprite bottle with a hole in the cap that had allegedly been modified for use as an “HCI generator” (an item of equipment used in the final step in the manufacture of “usable” methamphetamine), a substance which was alleged to have a strong ether smell (this item was never tested), a turkey baster and some coffee filters.

Thereafter, the Appellant and Clemons were both indicted by the Grayson County grand jury. Robinson was charged with the offenses of First-Degree Trafficking in a Controlled Substance (methamphetamine) and Manufacturing Methamphetamine. A superseding indictment was issued adding a firearm enhancement to the trafficking and manufacturing charges and adding a charge of possession of marijuana enhanced by possession of a firearm, possession of drug paraphernalia enhanced by possession of a firearm, and possession of a radio (police scanner).

The trial was conducted by the Grayson Circuit Court though it was held in Meade County with a Meade County jury. This was a result of the inability of the Grayson Circuit Court to seat a jury from Grayson County at a previous trial date.

At trial, Samantha Campbell testified as to her account of the events of August 7, 200L Deputy Poteet testified concerning the search of the residence conducted the morning after Samantha’s visit. He testified that there was no methamphetamine lab in operation when he arrived there; he further testified that he was a close neighbor to Clemons and that he noticed Clemons frequently had many, short-term visitors to his house.

Jennifer Winnegar, a chemist with the Kentucky State Police Central Lab in Frankfort testified concerning the testing she performed on the items that were submitted to her and upon the operation of clandestine methamphetamine labs. Winnegar testified that there were several different methods of manufacturing methamphetamine but that the items found during the search of the Clemons house were consistent with the type of items necessary using the “Nazi Method” or the “Anhydrous Ammonia Reduction Method.” She testified regarding the process necessary to manufacture methamphetamine from beginning to end or until “usable” methamphetamine results. She testified that several, though not all, of the items seized during the search either were methamphetamine or contained methamphetamine residue. She further testified that there was 4.535 grams of measurable methamphetamine found during the search.

She further explained to the jury that there is a difference between “methamphetamine a controlled substance” and “usable methamphetamine.” She explained that “usable methamphetamine” was the form of the product that would be sold to the ultimate user on the street, but that “methamphetamine a controlled substance” resulted prior to the final purification step (use of HCI generator). Nonetheless, she testified that methamphetamine was a Schedule II controlled substance regardless of its grade of purity or whether it was the “usable” form of the product. She testified that the HCI generator was required to convert the “methamphetamine a controlled substance” into a “usable” product.

Winnegar stated that to produce methamphetamine a controlled substance, one would need only lithium (camera batteries), anhydrous ammonia, and pseu-doephedrine or ephedrine as chemical components and the only equipment necessary for the “methamphetamine a controlled substance” was “any glass jar that would contain the chemicals.” Neither the Appellant, nor Clemons objected to this testimony; nor did they rebut it.

At the close of the Commonwealth’s case, both the Appellant, and Clemons, moved for a directed verdict. Both argued that the Commonwealth had not met its burden of proof with respect to both the trafficking charge and the manufacturing charge. They further moved for directed verdict on the firearms enhancement. After extensive arguments by the Appellant and Clemons and deliberation by the trial judge, the motions for directed verdict were denied. At the close of all the evidence, the Appellant renewed his motion for directed verdict, which was also denied.

Following submission to the jury, the Appellant was convicted of manufacturing methamphetamine, trafficking in methamphetamine, possession of marijuana, and possession of drug paraphernalia. The jury acquitted the Appellant of the firearms enhancements on all counts.

The Appellant appeals from these convictions.

DENIAL OF DIRECTED VERDICT ON MANUFACTURING METHAMPHETAMINE AND FIRST-DEGREE TRAFFICKING IN A CONTROLLED SUBSTANCE (METHAMPHETAMINE)

The Appellant claims the trial court committed reversible error by denying his motion for directed verdict on both the Manufacturing Methamphetamine count and the Fust-Degree Trafficking in a Controlled Substance (Methamphetamine) count. Specifically, they argue the Commonwealth failed to meet its burden of proof on both counts.

A trial court, on a motion for directed verdict, must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given such testimony. Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991).

The standard on appellate review of a ruling on a motion for directed verdict, as set out in Benham and Commonwealth v. Sawhill, is if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a verdict of acquittal.

Manufacturing Methamphetamine

First, with respect to the Manufacturing Methamphetamine charge, KRS 218A.1432 (in effect at that time) enumerated two avenues of proving the crime. 218A.1432(l)(a) provided “a person is guilty_when he knowingly and unlawfully manufactures methamphetamine;”. Section (l)(b) provided “a person is guilty_when he knowingly and unlawfully possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.”

According to the evidence, numerous items commonly associated with the manufacture of methamphetamine were found in the Clemons house, where the Appellant was a resident; certain items, though not all, contained evidence of methamphetamine residue which, according to testimony, was a common occurrence in the manufacture of methamphetamine. Additionally, a quantity of methamphetamine was found in the Appellant’s bedroom and in other parts of the house. The trial court correctly determined, based upon the evidence, that the Commonwealth had met their burden of proof as to KRS 218A.1432(l)(a).

Moving on to KRS 218A.1432(l)(b), the Commonwealth, through its uncontra-verted expert witness, Jennifer Winnegar, presented evidence that the chemicals necessary to manufacture methamphetamine a controlled substance were Lithium (or various other metals), anhydrous ammonia, and pseudoephedrine or ephedrine. She further testified that the only equipment necessary for the commission of the crime was a glass jar, like the glass pickle jar found at the Clemons house, in which to contain the necessary chemicals. Again, neither the Appellant nor his co-defendant Clemons presented any evidence to the contrary.

In a close reading of KRS 218A.1432 and 218A.1431, there is no requirement that the methamphetamine be in a “usable” form in order to establish -a crime. In fact, 218A.1431, defines “Methamphetamine” as any substance that contains any quantity of methamphetamine, including its salts, isomers, and .salts of isomers. Considering the evidence and testimony on this issue, the trial court, again, correctly determined that the Commonwealth had met its burden of proof as to KRS 218A.1432(l)(b).

Trafficking in a Controlled Substance (Methamphetamine)

With respect to the denial of the directed verdict on the trafficking count, KRS 218A.1412 says a person is guilty of First-Degree Trafficking in a Controlled Substance “....when he knowingly and unlawfully traffics in... .methamphetamine, including its salts, isomers, and salts of isomers;” KRS 218A.1431(3) further defines “Traffic” specifically related to methamphetamine, as “.... to distribute, dispense, sell, transfer, or possess with intent to distribute, dispense or sell methamphetamine.”

The Commonwealth presented evidence of the several small packages of finished methamphetamine product, empty baggies which could be used for packaging future product and what is known as a “cutting agent.” There was also evidence of a substantial amount of cash ($580.00) found in the residence at the time of the search. Deputy Poteet testified that, as a neighbor of Clemons, he noticed that the Clemons residence received many short-term visitors. As an officer, Deputy Po-teet testified that this type of activity was associated with drug trafficking. Considering the testimony and the evidence on this issue, the trial court correctly determined that the Commonwealth had met its burden of proof as to KRS 218A.1412 and 218A.1431(3).

Considering the evidence as a whole, as available to this trial court, we do not find it unreasonable for a jury to find guilt. The trial court did not err.

DENIAL OF UNANIMOUS VERDICT BY MANUFACTURING INSTRUCTION CONTAINING TWO THEORIES OF GUILT

The Appellant claims he was denied his right to a unanimous verdict when two theories of manufacturing methamphetamine were combined into one jury instruction. Specifically, he claims that the Commonwealth failed to establish the prong of 218A.1432 requiring possession of “the” equipment for the manufacture of methamphetamine.

KRS 218A.1432, as in effect at that time, states in pertinent part:

(1) A person is guilty of manufacturing methamphetamine when he knowingly and unlawfully:
(a) Manufactures methamphetamine; or
(b) Possesses the chemicals or equipment for the manufacture of methamphetamine with the intent to manufacture methamphetamine.

This Court, in Kotila v. Commonwealth, 114 S.W.3d 226 (Ky.2003), analyzed the language “the chemicals or equipment for the manufacture.... ” found in KRS 218A.1432 and determined that language to require ALL of the chemicals or equipment necessary to manufacture methamphetamine. We must recognize, however, that methamphetamine in any form and manufactured by any method is nonetheless methamphetamine and a conviction for manufacturing methamphetamine can be sustained so long as ALL the equipment or ALL the chemicals for that particular method used are present.

When a jury is presented, in a single instruction, alternate theories of guilt for the same offense, “each juror’s verdict [must] be based on a theory of guilt in which the Commonwealth has proven each and every element beyond a reasonable doubt.” Burnett v. Commonwealth, 31 S.W.3d 878 (Ky.2000).

As we stated previously in our discussion of the denial of the motions for directed verdict, the Commonwealth met its burden of proof on each of the 218A.1432 prongs. We decline to be repetitive. The trial court did not err by instructing the jury as to both prongs, or theories of guilt in this case.

JURY INSTRUCTION ON FIRST-DEGREE TRAFFICKING IN A CONTROLLED SUBSTANCE (METHAMPHETAMINE)

The Appellant claims the trial court erred by instructing the jury as to the charge of First-Degree Trafficking in a controlled substance (Methamphetamine). The Appellant argues that the trial court erred by instructing the jury that they could find he possessed methamphetamine with the intent to “transfer” when, KRS 218A.1431(3) does not include a provision for possession with intent to “transfer.”

The Appellant tendered a trafficking instruction for the trial court’s consideration. However, the instruction he tendered was incorrect in that it included trafficking methods not proven in this case, i.e., possession with intent to distribute or dispense. See Burnett & Commonwealth, 31 S.W.3d 878, 881 (Ky.2000). Furthermore, after the trial court prepared its own instructions, Appellant agreed that the trial court’s instructions were correct. One who tenders an incorrect instruction and subsequently agrees that the trial court’s own incorrect instruction is correct has failed to preserve the issue for review. Davis v. Commonwealth, 967 S.W.2d 574, 580-81 (Ky.1998).

CONVICTION OF MANUFACTURING METHAMPHETAMINE AND FIRST-DEGREE TRAFFICKING IN A CONTROLLED SUBSTANCE (METHAMPHETAMINE) AS VIOLATION OF DOUBLE JEOPARDY

The Appellant alleges that his conviction for both manufacturing and trafficking in methamphetamine violates the principles of double jeopardy. The Appellant did not specifically object to the giving of instructions on both manufacturing and trafficking charges. Appellant’s trial counsel merely stated that there would be a double jeopardy problem if Appellant was convicted of both manufacturing and possessing the same methamphetamine. As such, we decline to address the issue beyond the cursory review of the applicable sections of the statute which clearly differentiate between manufacturing and trafficking in methamphetamine. There is no violation of the principles of double jeopardy in the jury’s instructions in this case.

INCORRECT TESTIMONY DURING SENTENCING PHASE

The Appellant claims that the Commonwealth presented incorrect, or false testimony, during the sentencing phase regarding the application of “good time credits” on the actual amount of time he would be required to serve and that the error, though not preserved for review, constituted palpable error affecting the Appellant’s substantial rights and resulted in manifest injustice as provided for in RCr 10.26. See Schoenbachler v. Commonwealth, 95 S.W.3d 880, 836 (Ky.2003).

During the Appellant’s sentencing phase, the Commonwealth called Eric Franklin, a probation and parole officer, to testify as to parole eligibility for convicted offenders. He testified that under the parole eligibility guidelines, defendants would have to serve 20% of their sentences before being eligible for parole. He also testified that for each year a prisoner serves he/she is are given three months of statutory good time. Franklin’s testimony resulted in the jury being misinformed as to when the statutory good time credits would be applied to reduce a sentence. Franklin told the jury, and the Commonwealth pointed out in its closing argument, incorrectly, that the good time credits would be figured into the defendant’s parole eligibility.

Although statutory good time is listed in the sentence calculation on a prisoner’s resident record card, the prisoner does not actually receive credit for his good time until he reaches the minimum parole eligibility (or, in this case, service of 20% of his sentence). See Martin v. Chandler, 122 S.W.3d 540 (Ky.2003).

The use of incorrect, or false, testimony by the prosecution is a violation of due process when the testimony is material. Napue v. Illinois, 360 U.S. 264, 269, 272, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This is true irrespective of the good faith or bad faith of the prosecutor. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed.2d 215 (1963). When the prosecution knows or should have known that the testimony is false, the test for materiality is whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976).

The question remains whether the testimony influenced the jury to render a sentence greater than what it might otherwise have given absent the incorrect testimony. We believe it did and, for sure, can’t say it didn’t. The Commonwealth relied, almost solely, on Franklin’s testimony to persuade the jury to recommend the maximum sentence. The jury was given information to consider that was obviously confusing to the very people who deal with it on a daily basis. There is a reasonable likelihood that the jury was influenced by the incorrect testimony.

CONCLUSION

As such, we reverse the sentencing order and remand this matter back to the trial court for a new sentencing phase trial and sentencing on all convictions.

All concur.

      . The Possession of a Radio (Police Scanner) charge was disposed of prior to trial.

      . This method is also referred to by various other names.

      . See KRS 218A.010(4), (5)(a), (11).

      . Id. at 187.

      . 660 S.W.2d 3 (Ky.1983).

      . Effective June 20, 2005, the Kentucky General Assembly has amended KRS 218A.1432(1)(b) to require possession of only two (2) or more chemicals or two (2) or more items of equipment for the manufacture of methamphetamine.

      . KRS 218A.1431 does not require a trafficker to be the same person who manufactured the methamphetamine; likewise, KRS 218A.1432 does not require the person who manufactures the methamphetamine to then traffic the drug.


source: Caselaw Access Project

author: /s/ Joseph E. Lambert Chief Justice

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant v. Nancy E. Shelby CALLOWAY, Respondent.
    No. 2005-SC-0563-KB.
    Supreme Court of Kentucky.
    Dec. 22, 2005.
   OPINION AND ORDER

Respondent, Nancy E. Shelby Calloway, whose last known bar roster address is 221 South Second Street, Clarksville, Tennessee, was admitted to the practice of law in the Commonwealth of Kentucky in 1980. On May 6, 2005, the Board of Professional Responsibility of the Supreme Court of Tennessee entered an order publicly censuring Calloway. Upon motion by the Kentucky Bar Association (KBA), this Court issued a show cause order on September 22, 2005, directing Calloway to show cause, if any, pursuant to SCR 3.435(2)(b) why the imposition of identical discipline would be unwarranted. SCR 3.435(4) states in pertinent part: “[Tjhis Court shall impose the identical discipline unless Respondent proves by substantial evidence: (a) a lack of jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b) that misconduct established warrants substantially different discipline in this State.” Calloway did not respond to this Court’s Order and thus failed to show cause why identical discipline should not be imposed in this Commonwealth.

The Tennessee public censure charged that Calloway failed to adequately communicate with her client, resulting in the client retaining another attorney to complete the legal matter. Further, after Cal-loway and the client could not agree on the amount of money to be refunded, Calloway failed to timely resolve the issue with the Nashville Bar Association’s Fee Dispute Committee. The Tennessee Board of Professional Responsibility concluded that Calloway’s action violated Rules 1.1, 1.3, 1.4, 1.5, and 8.4(a)(d) of the Tennessee Rules of Professional Conduct.

Similarly, Calloway’s conduct violated SCR 3.130-1.1, SCR 3.130-1.3, SCR 3.130-1.4, SCR 3.130-1.5, SCR 3.130-8.3(a), SCR 3.130-3.4, and SCR 3.130-3.5 of the Kentucky Rules of Professional Conduct. Since Calloway failed to show cause why identical discipline should not be imposed in this Commonwealth, Nancy E. Shelby Calloway is hereby publicly reprimanded for her misconduct as set forth above. Calloway is further ordered to pay any and all costs associated with this disciplinary proceeding pursuant to SCR 3.450, for which execution may issue from this Court upon finality of this Opinion and Order.

All concur.

Entered: December 22, 2005.

/s/ Joseph E. Lambert Chief Justice


text:
    David G. GRIGSBY, KBA No. 87274, Movant v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2005-SC-0463-KB.
    Supreme Court of Kentucky.
    Dec. 22, 2005.

      David Glenn Grigsby, Hazard, KY, Pro se, for Movant.
    Bruce K. Davis, Executive Director, Dana Cox Nickles, Deputy Bar Counsel, Kentucky Bar Association, Frankfort, KY, for Respondent.
   OPINION AND ORDER

David Grigsby, KB A No. 87274, whose bar roster address is 64 Twin Oaks Lane, Hazard, Kentucky 41701 was admitted to the practice of law in Kentucky on June 4, 1998.

On September 22, 2002, Grigsby was arrested for Promoting Contraband in the First Degree, a Class D Felony, and, Possession of a Controlled Substance in the First Degree, a Class D Felony. Grigsby was found seated in the passenger seat of his car, which was located off a gravel road in Perry County. The area was known to the officer to be a place of drug trafficking. There were two others in the car, the driver and a back seat passenger. The officer identified that Grigsby was intoxicated because his eyes appeared bloodshot, and he had slow and impaired speech. Also, the officer said Grigsby’s demeanor was “nervous but relaxed,” which was unlike that which he had observed of Grigsby while practicing in court.

In addition, the officer noted that there was a flattened and manipulated soda can lying in the mud near the car, but it had no mud or tire tracks covering it. In the officer’s experience, a can manipulated as this one was used as an instrument in administering drug doses. The officer also observed several empty baggies around Grigsby in the passenger side. He administered field sobriety tests and determined Grigsby to be the only one intoxicated. Among other reasons, the officer arrested Grigsby lest he take control of his own vehicle again in the intoxicated state thereby risking injury to self and others.

Although Grigsby was questioned by the officer as to whether he was in possession of such substances, Grigsby refused to answer. Subsequent to arrest, a search of Grigsby’s person yielded a bag of cocaine.

Through a plea bargain, on October 11, 2004, Grigsby pled guilty to Possession of a Controlled Substance, Third Degree, a Class A Misdemeanor. He received a sentence of 12 months, but the Perry County Court suspended the sentence and placed him on unsupervised probation for twenty-four months.

Grigsby admits that his actions violated SCR 3.130-8.3(b), which provides, “It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” He agreed to conditions set forth in the KBA’s motion, including: submission to the Kentucky Lawyer Assistance Program, KYLAP, for two years, and a 61-day suspension from the practice of law probated for two years.

On August 25, 2005, this Court ordered review pursuant to SCR 3.370(9). The KBA filed a brief in support of the motion for consensual discipline. The recommended discipline remains the same, namely, a 61-day suspension probated for two years with conditions including monitoring by KYLAP. The nature of the offense, and the fact that Grigsby did not voluntarily enter KYLAP pursuant to SCR 3.950 prior to an arrest, are key to proper discipline in this case.

This Court has the sole authority to admit and discipline attorneys. SCR 3.010 et seq.; Kentucky Bar Ass’n v. Shewmaker, 842 S.W.2d 520 (Ky.1992). As to disciplinary matters, recommendations of the Bar Association Board of Governors are advisory in nature, and this Court makes independent review of the record and findings of fact. Kentucky Bar Ass’n v. Hays, 937 S.W.2d 700 (Ky.1996).

The recommended discipline focuses on mitigation of the imposed discipline mostly on the misdemeanor conviction obtained through plea bargaining and overlooks the proper role of lawyer discipline and the nature of the facts underlying Grigsby’s violation. This Court has the responsibility to ensure that bar membership maintains the character and fitness to practice law and to safeguard the public trust in the profession of law.

The lawyer’s offense causing disciplinary violation need not be criminal, but rather one that reflects adversely on the profession. The practice of law is an honorable profession and no lawyer should ever do any act or acts that would in any way reflect poorly upon the honorable profession of law. Kentucky Bar Ass’n v. Burbank, 539 S.W.2d 312 (Ky.1976). It is the duty and the responsibility of an attorney as an officer of the court to conduct their personal and professional life in such manner as to be above reproach. Kentucky Bar Ass’n v. Vincent, 537 S.W.2d 171 (Ky.1976). The touchstone of the ability to practice law is not merely whether the attorney has not committed a criminal act. In re Lynch, 238 S.W.2d 118 (Ky.1951). Lawyer discipline for violations of the code of professional conduct is not entirely focused on punishing a lawyer for committing a crime, but in maintaining bar membership that has the character and fitness to practice law.

Fitness to practice law includes maintaining good moral character. It is a long standing principle that for one to be worthy to practice law, the person must have a good moral character upon entering the profession, and must maintain such character all through his or her professional life. In re Lane, 291 S.W.2d 19 (Ky.1956). Any act by an attorney that brings the profession or the authority of the courts and administration of the law into disrespect or disregard, such as dishonesty, personal misconduct, questionable moral character, or unprofessional conduct is potential grounds for disbarment. In re Taylor, 309 Ky. 388, 217 S.W.2d 954 (1949). Rather, the public is entitled to rely on an attorney’s admission to the practice of law as a certification of the attorney’s honesty, high ethical standards, and good moral character. Kentucky Bar Ass’n v. Collis, 535 S.W.2d 95 (Ky.1975) cert. denied 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637. Thus, the companion aspect of discipline is to safeguard the public’s trust that this Court maintains a bar membership that has the fitness and character to practice law.

Narcotics offenses by attorneys are ordinarily considered crimes of moral turpitude justifying disbarment. See, generally, Kristine Cordier Karnezis, Annotation, Narcotics conviction as crime of moral turpitude justifying disbarment or other disciplinary action, 99 A.L.R.3d 288 (1980). Besides being illegal, the addictive nature of the drugs combined with their effects is known to cause the lawyer to harm others, either the public or clients.

The fact that Grigsby, a skilled defense attorney, was able to make a plea bargain to achieve a lesser convicted offense than that charged does not mitigate the underlying concerns for his fitness to practice law. That a crime was reduced to a misdemeanor through plea bargaining does not mitigate the actual facts. Kentucky Bar Ass’n v. Smith, 492 S.W.2d 880 (Ky.1973) (Imposing permanent disbarment where attorney pled guilty, pursuant to plea bargaining process, to a class A Misdemeanor of criminal attempt); cf Vincent, supra. In Kentucky Bar Ass’n v. Nunley, 877 S.W.2d 607 (Ky.1994), this Court ordered temporary suspension for an attorney who was growing less than five plants of marijuana, a class A misdemeanor, and criminal attempt to obtain a controlled substance by fraud, a class A misdemeanor. Later, after conviction, we imposed a two-year suspension. Nunley v. Kentucky Bar Association, 890 S.W.2d 290 (Ky.1994). Likewise, in Kentucky Bar Ass’n v. Patrick, 842 S.W.2d 868 (Ky.1992), we suspended Patrick for one year after he had been convicted of class A misdemean- or possession of cocaine. Again, in Gettys v. Kentucky Bar Ass’n, 11 S.W.3d 46 (Ky.2000) we imposed a 181-day suspension on top of a nearly three and a half year temporary suspension on an attorney convicted of felony cocaine possession and misdemeanor DUI, for roughly a four year suspension.

Because law is a self-governing profession, rules that promote self-reporting problems and seeking assistance as needed are a key to maintaining the integrity of the profession. Accordingly, had Grigsby reported his difficulties with cocaine to KYLAP pursuant to SCR 3.950 prior to being charged with crimes related to it or causing other harm, his compliance would have far more mitigating weight.

Given that Grigsby has had no other disciplinary actions against him, and that he has cooperated with the disciplinary proceedings thus far and has agreed to KYLAP assistance, suspension is appropriate in this case rather than permanent disbarment.

THEREFORE, IT IS HEREBY ORDERED as follows:

1. David G. Grigsby is suspended from the practice of law in the Commonwealth of Kentucky for a period of one hundred eighty (180) days with sixty-one (61) days to be served and one hundred nineteen (119) days probated for the balance of his duties under the KYLAP monitoring contract.
2. He must continue to perform the duties of his KYLAP monitoring contract during suspension and complete the balance of the two-year program.
3. In accordance with SCR 3.450 and SCR 3.480(3), respondent is directed to pay all costs associated with this disciplinary proceeding against him, certified in the amount of $8.15, for which execution may issue from this Court upon finality of this order.
4. Pursuant to SCR 8.390, respondent is hereby ordered to provide notice to any clients, if applicable, he currently represents of his inability to provide further legal services, to notify all courts in which he has matters pending of his suspension and to provide the Director of the Kentucky Bar Association with a copy of all such letters simultaneously • to their mailing.
5. Pursuant to SCR 3.165(6), respondent shall immediately, to the extent reasonably possible, cancel and cease any advertising activities in which he is engaged for the period of suspension.

All concur.

ENTERED: December 22, 2005.

/s/ Joseph E. Lambert Chief Justice


author: DYCHE, Judge.

text:
    UPS CAPITAL BUSINESS CREDIT, Appellant, v. C.R. CABLE CONSTRUCTION, INC.; Patton Management Corp. (f/k/a Wright & Lopez, Inc.); Patton Management Group, Inc. (d/b/a Wright & Lopez); T.D.A. Properties, Inc. (d/b/a Aulbach Auctioneers); Alltel Communications Products, Inc., Appellees.
    No. 2004-CA-002062-MR.
    Court of Appeals of Kentucky.
    Dec. 9, 2005.

      Craig C. Dilger, W. Duncan Crosby III, Ogden, Newell & Welch, PLLC, John T. McGarvey, Morgan & Pottinger, PSC, Louisville, KY, for appellant.
    Dan M. Rose, R. Eberley Davis, Lizbeth Ann Tully, Stoll, Keenon & Park, LLP, Lexington, KY, for appellee C.R. Cable Construction, Inc.
    Kevin G. Henry, Sturgill, Turner, Barker, & Moloney, PLLC, Lexington, KY, for appellee C.R. Cable Construction, Inc.
    Before DYCHE and GUIDUGLI, Judges; PAISLEY, Senior Judge.

      . Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute 21.580.

   OPINION

DYCHE, Judge.

UPS Capital Business Credit (UPS Capital), appeals from a July 15, 2004, order of the Clark Circuit Court invoking the equitable doctrine of marshaling assets, thereby requiring UPS Capital to seek satisfaction of a debt on two notes owed by Patton Management Group, Inc. (d/b/a Wright Lopez) and Patton Management Corp. (f/ k/a Wright Lopez, Inc.) (collectively Patton Management) through alternative sources, including loan guaranties and other secured assets, prior to exercising its first-priority security hen against garnished cash accounts currently being held by the circuit court. The invocation of the doctrine facilitates the efforts of C.R. Cable Construction, Inc. (C.R. Cable) to obtain satisfaction of its judgment against Patton Management for breach of contract from the garnished funds.

For the reasons stated below, we reverse the circuit court’s July 15, 2004, order insofar as it requires UPS Capital to marshal assets as against the guarantors of the Patton Management notes; we affirm the order in all other respects.

On January 24, 2003, Patton Management executed two notes in favor of UPS Capital’s predecessor, First International Bank (First International). The first note was for $750,000.00, and was secured by a Security Agreement granting First International a security interest in all of the property owned by Patton Management or thereafter acquired. The second note was for $500,000.00 and was executed in conjunction with a Small Business Administration (SBA) loan. While not as broad as the security interest associated with the first note, this loan likewise included a security interest in property owned by Patton Management. The security agreements were perfected by the filing of financing statements with the Delaware Secretary of State.

Each of the notes was also secured by separate security guaranties executed by Patton Management officers Bill Ray, Richard Boyle and Alec McLarty, and by Patton Management shareholder, Link-corn, Inc. These loan guaranties, and whether the guaranties are subject to the doctrine of marshaling assets, are at the center of the present litigation.

In the meantime, Patton Management became indebted to C.R. Cable for work performed by C.R. Cable as a subcontractor on a contract between Patton Management and South Central Bell telephone company for, among other things, the installation of underground cable.

Soon after the January 24, 2008, notes were executed, Patton Management began experiencing financial difficulties and undertook the process of self-liquidation. This liquidation of assets constituted default under the two loan security agreements. During this time Patton Management also defaulted on its payment obligations to C.R. Cable under their contractual agreement.

On March 28, 2008, C.R. Cable filed a lawsuit in Clark Circuit Court seeking to recover from Patton Management amounts owing under the contract. On May 1, 2003, Clark Circuit Court entered a default judgment in favor of C.R. Cable entitling it to collect from Patton Management the sum of $368,116.17 plus interest, attorney fees, and costs.

In seeking to enforce its judgment, C.R. Cable obtained Orders of Garnishment against T.D.A. Properties, Inc., d/b/a Aul-bach Auctioneers, and Verizon/Alltel Communications, Inc., for amounts these entities owed to Patton Management. These parties deposited with the circuit court, respectively, $429,711.28 and $33,936.35. C.R. Cable also obtained an Order of Garnishment against BellSouth Telecommunications, Inc., in the amount of $277,995.95; those garnished funds, however, were deposited with the Jefferson Circuit Court in association with separate litigation involving Patton Management and are not at issue in this proceeding.

On June 11, 2003, UPS Capital moved to intervene in the Clark Circuit Court action and asserted a claim to the garnished funds under its first-priority security interest. UPS Capital sought to quash the garnishments and apply the garnished funds toward satisfaction of its two secured notes. According to the appellant, as of June 2, 2003, Patton Management owed UPS Capital $309,502.71 on the first note and $398,386.20 on the SBA note. By docket sheet order entered July 4, 2003, UPS Capital was granted leave to intervene in the action.

On February 19, 2004, C.R. Cable filed a motion requesting that the circuit court invoke the doctrine of marshaling assets and order UPS Capital to first seek repayment on the two notes from other collateral securing the notes, as well as the four personal guarantors, prior to seeking payment on the notes from the garnished funds. As grounds for the motion C.R. Cable noted the abundance of other collateral from which UPS Capital could seek satisfaction of its notes; that the personal guaranties were a source of satisfaction available only to UPS Capital; and that UPS Capital had failed to exercise diligence in trying to collect its debt, resulting in a depletion of assets by Patton Management.

By order entered on July 15, 2004, the circuit court granted C.R. Cable’s motion to invoke the doctrine of marshaling assets and directed UPS Capital to “proceed forthwith to collect its debt from Patton by enforcement of the guaranties and liquidation of any other collateral it holds securing its loans.” The circuit court further directed that “the Garnished Funds presently being held by this Court pursuant to previous orders of this Court shall remain so until further order of this Court.” This appeal followed.

We first address C.R. Cable’s argument that the circuit court’s July 15, 2004, is an interlocutory and nonappealable order.

Ky. R. Civ. Pro. (CR) 54.01 defines a final and appealable judgment as “a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02.” However, CR 54.02(1) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final. In the absence of such recital, any order or other form of decision, however designated, which adjudicates less than all the claims or the rights and liabilities of less than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

The circuit court’s July 15, 2004, order contained the finality language required by CR 54.02. Moreover, the trial court has broad discretion in making a determination of whether an order is final and appealable under CR 54.02. Christie v. First American Bank, 908 S.W.2d 679, 681 (Ky.App.1995); Jackson v. Metcalf, 404 S.W.2d 793 (Ky.1966).

We construe the circuit court’s July 15, 2004, order as having resolved one among the multiple claims pending in the lawsuit; namely, whether UPS Capital, over its objection, should be required to undertake the time, effort, and expenses associated with implementing the circuit court’s order to commence marshaling assets against other secured Patton Management collateral and against the four guarantors prior to exercising its lien against the garnished funds. While things remain to be done in the circuit court litigation, we cannot conclude that the circuit court abused its discretion in determining that there was no just reason for delay under CR 54.02.

Turning now to the merits of the appeal, UPS Capital contends that, for various reasons, the circuit court erred in invoking the doctrine of marshaling assets with respect to the loan guaranties executed by Bill Ray, Richard Boyle, Alec McLarty and Linkcom, Inc. We agree.

The doctrine of marshaling assets is an ancient rule of equity. The doctrine requires that “where two or more creditors seek satisfaction out of the assets of their common debtor, and one of them can resort to two funds where another has recourse to only one of the funds, the former creditor may be required to seek satisfaction out of the funds which the latter creditor cannot reach, before resorting to the other fund.” Bartley v. Pikeville Nat. Bank & Trust Co., 532 S.W.2d 446, 448 (Ky.1975). By this method of distribution both creditors may be paid or both funds will be exhausted. Id.

However, “it is well settled that a creditor who has a claim against two debtors, one a principal and the other a surety, cannot be compelled by another creditor of the principal debtor to exhaust his remedy against the surety before proceeding against the principal.” Gaines v. Hill, 147 Ky. 445, 144 S.W. 92, 94 (1912) (citations omitted). The rationale for this rule has been explained as follows:

A surety is not a “fund” or “security” in the sense in which those terms are used in connection with the principle of marshaling so as to permit or require a senior creditor to look first to the surety for satisfaction of its claim. Where a fund is held by a surety or guarantor, marshaling is barred because the debtor does not hold the funds which are in the hands of the surety or guarantor and, therefore, are not assets subject to marshaling. Thus, in the absence of some special equity, the principle of marshaling assets is not applicable to a case where one of the funds is the property of a surety of the common debtor. As a result, a creditor cannot be compelled to satisfy its debt from the sureties of a debtor before resorting to a fund or collateral security on which the creditor has a lien.

53 AM. JUR. 2D Marshaling Assets § 28 (1996).

The circuit court’s July 15, 2004, order, insofar as it includes the four guarantors of the Patton Management loans (Ray, Boyle, McLarty, and Linkcom, Inc.) as subject to the doctrine of marshaling assets, is not in compliance with the rule as stated in Gaines v. Hill. We accordingly reverse that facet of the order. We affirm the circuit court’s July 15, 2004, order, however, with respect to marshaling as concerns other Patton Management collateral covered under the security agreements.

In support of including the guarantors as subject to the doctrine of marshaling assets, C.R. Cable cites us to In the Matter of Clary House, Inc., 11 B.R. 462 (W.D.Mo.1981), and Morgan v. Meacham, 279 Ky. 526, 130 S.W.2d 992 (1938). Clary House is an anomaly which has not been followed by any other court and, is at odds with the rule as stated in Gaines; further, we do not believe that Morgan is inconsistent with the rule as stated in Gaines. In any event, Gaines has not been overruled, and has been applied as recently as 1975 in Bartley v. Pikeville National Bank & Trust Company, supra. In summary, we believe that the rule as stated in Gaines v. Hill remains the law in this Commonwealth. Hence, we are bound to apply the rule as stated therein. Rules of the Supreme Court 1.030(8)(a).

For the foregoing reasons we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

ALL CONCUR.

      . At some point subsequent to the execution of the notes, First International changed its corporate identity to UPS Capital, and UPS Capital became the creditor under the notes.

      . UPS Capital does not appear to challenge invocation of the marshaling assets doctrine with respect to other available Patton Management collateral.


author: GUIDUGLI, Judge.

text:
    Nathan J. WRIGHT, Appellant, v. Jamie C. WRIGHT, Appellee. and Teresa Ann Fraley, Appellant, v. Troy Dennis Fraley, Appellee.
    Nos. 2005-CA-000540-ME, 2005-CA-000657-ME.
    Court of Appeals of Kentucky.
    Dec. 9, 2005.
    Vicki L. Ridgway, Pikeville, KY, for appellants in No. 2005-CA-000540-ME.
    Virginia Meagher, Jackson, KY, for appellants in No. 2005-CA-000657-ME.
    No Brief for appellee.
    Jason S. Wilson, Richmond, KY, for ap-pellee.
    Before GUIDUGLI and HENRY, Judges; POTTER, Senior Judge.

      . Senior Judge John W. Potter, sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

GUIDUGLI, Judge.

In this consolidated action, Nathan J. Wright has appealed from the three-year Domestic Violence Order (hereinafter “DVO”) entered by the Floyd Family Court on February 9, 2005, while Teresa Fraley has appealed from the Lee Circuit Court’s February 18, 2005, dismissal of her Emergency Protection Order (hereinafter “EPO”). Both appellants assert that they were denied a full hearing, to which they claim to be statutorily entitled. Because we agree that neither the Floyd Family Court nor the Lee Circuit Court afforded either appellant a full hearing, we vacate both orders, and remand the matters to the respective courts for further proceedings.

APPEAL NO. 2005-CA-000540-ME

On February 3, 2005, Jamie Wright, who had initiated a dissolution action the preceding July, filed a Domestic Violence Petition/Motion in the Floyd Family Court, alleging that her husband, Nathan, had engaged in an act or acts of domestic violence and abuse on February 1, 2005. Jamie’s factual statement reads as follows:

A brief dispute occurred, and Nathan was very angry. He made some comments that made me realize he was not in a safe state of mind for the children and I to be around. I phoned a friend to inform her of the situation. She phoned KSP to let them know I was vacating the home with the children. I was afraid that if they weren’t informed, he would have kept me from getting the children out of the home. ■ The KSP met with me, and noticed a place on my eye where I had ran into the refridgerator earlier that day. They would not accept that being the reason for the bruises on my face. They took further action, and arrested him. I am now afraid that he will become more furious with me, thinking I had him arrested, and try to somehow harm me (or) take our son from me. He is not in a safe state of mind, and I’m afraid that he will react to this ordeal without thinking the situation through.

The family court entered an Emergency Order of Protection and Summons the same day, restrained Nathan from committing further acts of abuse or threats of abuse and from any contact or communication with Jamie, and ordered Nathan to remain 1,000 feet away from Jamie and her family. A hearing was scheduled for February 9, but the family court did not hold a hearing that day. Rather, the family court heard arguments from counsel for the parties, and indicated on the record that it was aware of a 911 call and the involvement of law enforcement, as well as that a child had been removed in Johnson County because of this altercation. Counsel also indicated that the entry of an agreed restraining order in conjunction with the dissolution proceeding had been discussed. Furthermore, counsel for Jamie appeared to state that Jamie did not want to restrain Nathan, but was interested in seeking counseling. However, the family court specifically stated on the record:

Considering that this domestic violence altercation led to the involvement of law enforcement, apparently there was a 911 call that I am getting a transcript of. Considering that that led to removal of your child in Johnson County, there’s no way that I’m not going to enter a DVO.

The family court also ordered the Cabinet to investigate the matter and put in place a safety plan. Finding in the written order that Jamie had established by a preponderance of the evidence that an act of domestic violence or abuse had occurred and might occur again, the family court entered a DVO, which would be effective for three years until February 9, 2008. Nathan was ordered to remain 500 feet away from Jamie and members of her family, and was referred to offender counseling. Nathan timely filed a notice of appeal from the DVO.

In his brief, Nathan argues that the family court did not hold a hearing prior to entering the DVO, in violation of KRS 403.740 and 403.745, and made its decision based on its knowledge or belief of events occurring outside of the record. Jamie did not file a responsive brief.

APPEAL NO. 2005-CA-000657-ME

On February 4, 2005, Teresa filed a Domestic Violence Petition/Motion with the Lee District Court, alleging that her husband, Tory Dennis Fraley, had engaged in domestic violence on or about January 31, 2005. At Teresa’s request, a 911 dispatcher completed the petition, including the factual statement, which reads as follows:

[Teresa] advised that [Troy] has physically abused her in the past and that she fears it will occur again. Advised that he verbally abused her in the presence of her son stating “He would be able to get to her before anyone else could, and that he was going to put her out of her misery.” “He would kill her.” Stating several ways in which he would kill her. Approx 8 years [Troy] caused physical injury to [Teresa] to the extent in which medical treatment was required. She was treated at KRMC, all records of this can be obtained there. Requests that [Troy] have no contact with her at all. Advised that the verbal and mental abuse occurred daily and that she has received medical treatment from JB Noble a dr in Lee Co. in reference to this.

The district court entered an Emergency Order of Protection and Summons, transferred the matter to the Lee Circuit Court in contemplation of the to-be-filed dissolution action, and scheduled a hearing for February 18.

At the hearing, the circuit court examined Teresa as follows:

Q. Tell me what happened.
A. The night I left?
Q. Yes.
A. This has been an ongoing situation.
MS. MEAGHER: I’d like for her to identify herself for the record.
Q. State your name for the record.
A. Teresa Fraley.
Q. Tell me what happened.
A. The night I went in we had words, and I just felt it was the right thing to do. It was getting very dangerous. I decided I was going to leave.
Q. You’ll have to tell me more than that. Were you threatened in any way?
A. No, he did not threaten me.
Q. Did he touch you that night?
A. No, he did not touch me. It has happened in the past. Since I just felt like he was dangerous—
Q. He didn’t threaten you that night?
A. No.
THE COURT: The EPO is dismissed.
MS. MEAGHER: Your Honor, I’d like to ask some questions.
THE COURT: You can ask them, but from what she says—
EXAMINATION
BY MS. MEAGHER:
Q. Has he been violent with you before?
A. Yes.
Q. When was he violent?
A. Eight years ago. I had to go to the hospital.
Q. Did you tell the doctor what happened?
A. Yes.
Q. What had—
THE COURT: I’m not going back eight years for the record. It’s dismissed.

The circuit court entered a bench order that day dismissing the EPO, finding that no violence had been alleged. It is from this order that Teresa has taken her appeal.

In her brief, Teresa argues that she was denied a full hearing on her petition, in violation of KRS 403.740, and was thereby deprived of her due process rights. In response, Troy argues that Teresa in fact received a full hearing, but failed to prove that any domestic violence or abuse occurred.

DISCUSSION

The General Assembly enacted KRS 403.715 to 403.785 as a means to allow victims of domestic violence and abuse “to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible[,]” among other reasons. KRS 403.720(1) defines “domestic violence and abuse” as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couplet.]” Upon review of a petition filed pursuant to KRS 403.725 and 403.730, the court may enter an EPO if it determines that the allegations “indicate the presence of an immediate and present danger of domestic violence and abuse[.]” An EPO can be effective for nó more than fourteen days, and “[u]pon the issuance of an [EPO], a date for a full hearing, as provided for in KRS 403.745, shall be fixed not later than the expiration date of the [EPO].” KRS 403.745 provides for the issuance of a summons to the adverse for a hearing. Finally, KRS 403.750(1) permits a court to enter a DVO if, following the hearing, the court “finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur....” In Commonwealth v. Anderson, the Supreme Court of Kentucky defined the preponderance standard as requiring that the evidence be sufficient to establish that the alleged victim “was more likely than not to have been a victim of domestic violence.”

The filing of a DVO petition has enormous significance to the parties involved. If granted, it may afford the victim protection from physical, emotional, and psychological injury, as well as from sexual abuse or even death. It may further provide the victim an opportunity to move forward in establishing a new life away from an abusive relationship. In many cases, it provides a victim with a court order determining custody, visitation and child support, which he or she might not otherwise be able to obtain. The full impact of EPOs and DVOs are not always immediately seen, but the protection and hope they provide can have lasting effects on the victim and his or her family.

On the other hand, the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator. To have the legal system manipulated in order to “win” the first battle of a divorce, custody, or criminal proceeding, or in order to get “one-up” on the other party is just as offensive as domestic violence itself. From the prospect of an individual improperly accused of such behavior, the fairness, justice, impartiality, and equality promised by our judicial system is destroyed. In addition, there are severe consequences, such as the immediate loss of one’s children, home, financial resources, employment, and dignity. Further, one becomes subject to immediate arrest, imprisonment, and incarceration for up to one year for the violation of a court order, no matter what the situation or circumstances might be.

Balancing these conflicting interests is an awesome responsibility. Trial courts are often overwhelmed with such cases along with numerous other cases and duties that must be attended to in order to keep the dockets moving and up to date. Yet because of the immense impact EPOs and DVOs have on individuals and family life, the court is mandated to provide a full hearing to each party. To do otherwise is a disservice to the law, the individuals before the court, and the community the judges are entrusted to protect. While we realize the tremendous responsibility entrusted to the trial judges in these cases, we also realize the awesome impact each case has and, as such, must insist that a full evidentiary hearing be afforded to the parties as provided for by the statutes and court rules.

In the present cases, the appellants have argued that the respective courts did not hold a full hearing as required by the statute. We agree. In Lynch v. Lynch, the Kentucky Court of Appeals made it clear that “[d]ue process requires, at the minimum, that each party be given a meaningful opportunity to be heard.” In Nathan’s case, the family court asked no questions of either party, and impermissi-bly relied upon extrajudicial evidence in entering the DVO. In Teresa’s case, the circuit court conducted what can best be described as a minimal hearing, essentially asking Teresa two questions before dismissing the EPO. We have no way to determine what Teresa’s counsel was seeking to elicit regarding the past incident and how that impacted upon her present situation because the court would not allow any more questions. Clearly, in neither case may we hold that the court held a “full hearing” as contemplated by the statute, as there was no testimony, sworn or otherwise, allowed in one, while in the other case counsel was not permitted to complete Teresa’s direct examination before the court announced its decision. As such, neither court could have made a finding based upon a preponderance of the evidence.

Because there was either no evidence or insufficient evidence presented to meet the applicable standard or proof, we must vacate both rulings before us and remand the matters for a “full hearing” as contemplated by the statute, comprised of the full testimony of any appropriate witnesses sought to be presented.

For the foregoing reasons, the DVO entered by the Floyd Family Court in appeal No. 2005-CA-000540-ME and the order dismissing the EPO entered by the Lee Circuit Court in appeal No. 2005-CA-000657-ME are both vacated, and the matters are remanded to their respective courts for further proceedings in accordance with this opinion.

ALL CONCUR.

      . While the petition lists the date as February 1, 2004, and the witness to the petition indicated that the form was subscribed and sworn to on February 3, 2004, we believe that the year should have been listed as 2005.

      . Spelling and grammatical errors have not been corrected.

      . Counsel for Jamie stated that a child from a previous relationship was declared dependent and removed from Jamie by the Johnson District Court because she and Nathan had reconciled without having received any counseling or professional help.

      . Spelling and grammatical errors have not been corrected.

      . KRS 403.715(1).

      . KRS 403.740(1).

      . 934 S.W.2d 276, 278 (Ky.1996).

      . 737 S.W.2d 184, 186 (Ky.App. 1987).

      . See Id.


author: SCHRODER, Judge.

text:
    Jennifer L. SMITH, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000826-MR.
    Court of Appeals of Kentucky.
    Dec. 9, 2005.

      Scott C. Byrd, Louisville, KY, for appellant.
    Gregory D. Stumbo, Attorney General, Louis F. Mathias, Jr., Assistant Attorney General, Frankfort, KY, for appellee.
    Before COMBS, Chief Judge; HENRY and SCHRODER, Judges.
   OPINION

SCHRODER, Judge.

This is an appeal from a judgment in which a driver who was on methadone maintenance was convicted of second-degree manslaughter and second-degree assault stemming from a motor vehicle accident. Appellant argues that the trial court should have suppressed the results of her blood test and that the court erred in allowing expert testimony regarding the side effects of the two drugs found in appellant’s blood. From our review of the record, the trial court properly denied the motion to suppress the results of appellant’s blood test and properly allowed the experts to testify regarding the side effects of the drugs. Hence, we affirm.

On January 10, 2002, appellant, Jennifer Smith, left her home in Pineville at around 7:15 a.m. and drove to the DRD Knoxville Medical Clinic in Tennessee to receive her weekly supply of methadone. Smith had been taking this medication daily beginning in January 2001 as part of a methadone maintenance treatment program prescribed by her doctor to beat her six-year addiction to prescription drugs. Smith testified that she took 120 mg of methadone, which was her daily dose, at the clinic at 9:00 a.m. and then began her drive home. On the way home, Smith stopped at the grocery store and at her daughter’s cheerleading practice. At 12:00 p.m., Smith was driving north on U.S. 119 when her Chevrolet Tahoe crossed the double yellow line rounding a curve. In crossing over into the oncoming traffic, the Tahoe narrowly missed one car that swerved out of the way, side-swiped the rear quarter panel of another car, and then collided head-on with a Chevrolet Cavalier driven by Gary Dorton and occupied by twelve-year-old Robert Brock. Gary Dorton was pronounced dead at the hospital following the accident, and Brock was severely injured.

Two of the witnesses to the accident testified that they did not see a driver in the Tahoe when it crossed the double yellow line. One witness stated that he observed the driver of the Tahoe turn her steering wheel straight into the Cavalier before the impact. All the witnesses testified that the Tahoe came straight across into the oncoming traffic without ever attempting to brake or slow down. Police investigation of the accident revealed there were no skid marks left by the Tahoe.

Smith testified that just before the wreck as she entered the curve, she heard a clicking noise and felt a bump in the steering wheel. Smith maintained that, at that point, she was unable to steer the vehicle around the curve and crossed into the oncoming traffic. According to Smith, she had experienced this same problem with the vehicle a week before the accident and had her ex-husband drive the vehicle to see if he noticed anything unusual.

Following the collision, Smith was taken by ambulance to the Pineville Community Hospital. She was found to have a severe fracture of the right tibia and fibula. At 1:00 p.m., 1:35 p.m., and 2:35 p.m., she was administered 4 mg of morphine sulphate. At 1:25 p.m., she was administered 12.5 mg of promethazine, also known as Phener-gan. At 2:25 p.m., she was administered a second 12.5 mg dose of promethazine. At 2:30 p.m., Smith was flown via helicopter to University of Tennessee Hospital at Knoxville.

While at Pineville Community Hospital, the police asked Smith if she would submit to blood and urine testing. Kentucky State Police (“KSP”) Trooper Walter Cashen testified that Smith verbally agreed to the testing. He then read her the consent form which she signed while lying down. The blood was drawn at 1:50 p.m. (prior to Smith’s second dose of pro-methazine) by a hospital medical technologist and was later transported to the Kentucky State Police crime lab for analysis. The results of the toxicology tests revealed that Smith had 2.3 mg% methadone in her urine and .068 mg% methadone in her blood. Additionally, she was shown to have .02 mg% promethazine in her urine and blood. The intake information obtained at Pineville Community Hospital indicated that Smith informed the hospital staff that she had taken methadone and Paxil that morning.

On April 9, 2003, Smith was indicted on one count of manslaughter in the second degree for causing the death of Gary Dor-ton, and one count of assault in the second degree for causing serious physical injury to Robert Brock. Prior to trial, Smith filed a motion in limine seeking to have the results of the toxicology tests suppressed on grounds that Smith was incapable of giving her consent to. the testing because of her severe injuries. The court denied the motion because it was not properly filed as a motion to suppress under RCr 9.78. Thereafter, on March 2, 2004, Smith filed a motion to suppress the results of the toxicology tests pursuant to RCr 9.78, and a hearing was held on the motion on March 15, 2004. On March 22, 2004, the court entered its order denying the motion to suppress.

On November 20, 2003, Smith filed another motion in limine seeking to prevent Dr. Gregory Davis, a pathologist and one of the Commonwealth’s expert witnesses, from testifying at trial regarding Smith’s methadone level and whether Smith should have been driving while taking methadone. A hearing was held on this motion on November 24, 2003, during which the trial judge indicated that he would likely let Dr. Davis testify about the side effects of methadone, but would not let him give an opinion on the ultimate issue in the case— whether Smith should have been driving with the amount of methadone in her system. However, the court stated that it would hold a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the day before or during the trial and would not conclusively rule on the issue until that time. Smith’s counsel expressed concern more than once during this November 24, 2003 hearing that if Dr. Davis were permitted to testify about Smith’s level of methadone, he would need to get an expert to testify about methadone maintenance and the fact that individuals on methadone maintenance were capable of driving.

The jury trial was held on March 23 and 24, 2004. The Commonwealth presented seventeen witnesses, including several eyewitnesses to the crash, the police officers and EMS workers who responded to the scene, two individuals from the KSP forensic laboratory, and Dr. Davis. During the trial, a Daubert hearing was held regarding the testimony of Dr. Gregory Davis. At the conclusion of the hearing, the court permitted Davis to testify: that the level of promethazine in Smith’s blood was ten times higher than the 12.5 mg dose she received at the hospital prior to her blood test; about the risks and adverse effects of methadone and promethazine; to the general warnings given regarding these two drugs; about the dangers of combining these two drugs; and to the fact that methadone users will sometimes take pro-methazine to enhance the effect of methadone. Jane Purcell, one of the witnesses from the KSP forensic lab, was also permitted to testify regarding the side effects of methadone and promethazine. The Commonwealth’s theory of the case was that on the day of the wreck, Smith took promethazine with her methadone, which caused her to pass out while driving and cross into oncoming traffic.

The defense presented the testimony of five witnesses, including Smith, but did not offer the testimony of any expert regarding methadone maintenance or to rebut the testimony of Dr. Davis or Purcell. Smith testified that she took one dose of methadone the morning of the wreck, that she experienced no side effects from it, and that she took no other drugs with the methadone.

The jury found Smith guilty of second-degree manslaughter and second-degree assault, and recommended a sentence of ten years’ imprisonment on the manslaughter conviction and five years on the assault conviction, to be served consecutively. On April 20, 2004, the court sentenced Smith to a total of fifteen years in accordance with the jury’s recommendations. Smith’s appeal followed.

We shall first address Smith’s argument that the trial court erred when it denied Smith’s motion to suppress the results of her blood tests. It has been held that the taking of a blood sample constitutes a search which implicates the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Warrantless searches are deemed unreasonable unless they fall within one of the enumerated exceptions to the requirement that all searches must be performed pursuant to a warrant. Cook v. Commonwealth, 826 S.W.2d 329 (Ky.1992); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Consent is one of the exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Farmer v. Commonwealth, 6 S.W.3d 144 (Ky.App.1999). The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant gave his voluntary consent to the search. Farmer, 6 S.W.3d at 146.

Smith’s position at the suppression hearing was that she could not have consented to the blood test because of the extent of her injuries. Smith had a severe fracture of the right tibia and fibula. At the time her consent was obtained, she was immobilized and strapped to a spine board, and could barely raise her arm. The consent form reveals that she signed the form vertically instead of horizontally. Eleanor Li-fert, one of the nurses from Pineville Community Hospital who attended Smith after the accident, testified at the hearing that Smith was alert and oriented at all times, including when her blood was drawn. KSP Trooper Walter Cashen testified that he read the entire consent form to Smith and she appeared to know what she was signing. He stated that he specifically asked her if she understood the form, and she replied that she did.

In its order denying the motion to suppress, the court found, “that at the time the Defendant gave her consent to the blood sample request she was alert, oriented and in possession of her faculties and thus able to consent to the blood tests.” A trial court’s findings of fact on a suppression motion are deemed conclusive and will not be overturned so long as they are supported by substantial evidence. RCr 9.78; Diehl v. Commonwealth, 673 S.W.2d 711 (Ky.1984). In Diehl, the testimony of police officers that the defendant’s wife voluntarily gave her consent to search, coupled with the consent form signed by the wife, constituted substantial evidence to support the court’s finding that voluntary consent was given. Similarly, in the present case, we believe the testimony of Lifert and Trooper Cashen, along with the consent form, was substantial evidence that Smith had the capacity to and did indeed give her consent to the blood tests.

Smith’s second argument is that the trial court erred in allowing Dr. Gregory Davis and Jane Purcell to testify to the effects of methadone and promethazine. Smith asserts that this testimony was unduly prejudicial, unreliable and failed to satisfy the requirements of Daubert in light of the generally accepted theory within the medical community that individuals on methadone maintenance function normally and do not experience the adverse side effects normally associated with the drug.

Pursuant to the court’s ruling after the Daubert hearing in this case, Dr. Davis testified regarding the levels of methadone and promethazine in Smith’s blood. Dr. Davis stated that Smith had ten times the level of promethazine in her blood that one would be expected to have with the 12.5 mg dose of promethazine administered to Smith at the hospital prior to her blood test. Davis also testified that methadone can cause sleepiness, blurred vision, and can render the user unable to perform complex tasks. As for promethazine, Dr. Davis testified that the drug can cause sedation, blurred vision, stumbling, and can likewise render the user unable to perform complex tasks. Davis further testified that the effect of combining methadone and promethazine would be to enhance the side effects of both drugs, and that he was aware that methadone users will sometimes combine the two drugs to enhance the methadone’s effect. According to Davis’s testimony, the level of impact of the drugs will vary from individual to individual according to their tolerance level, but the risks and adverse effects of the drugs still exist for those on methadone maintenance. On cross-examination, Dr. Davis agreed that there are individuals who can function daily and perform complex tasks without impairment with certain levels of methadone or promethazine in their systems. Dr. Davis stated that the level of impairment depends on the tolerance level of the individual, the amount of the drug taken and the task at issue.

Expert opinion testimony is admissible so long as: 1) the witness is qualified to render an opinion on the subject; 2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); 3) the subject matter satisfies the test of relevancy in KRE 401, subject to balancing proba-tiveness against prejudice under KRE 403; and 4) the opinion will assist the trier of fact pursuant to KRE 702. Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky.1997), cert. denied, 523 U.S. 1052, 118 S.Ct. 1374, 140 L.Ed.2d 522 (1998). In assessing the reliability of expert opinion evidence under Daubert, the following factors may be considered by the court: 1) whether a theory or technique can be and has been tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) whether there is a high known or potential rate of error regarding the technique and whether there are standards controlling the technique’s operation; and 4) whether the theory or technique enjoys general acceptance within the relevant scientific, technical, or other specialized community. Daubert, 509 U.S. at 592-94, 113 S.Ct. at 2796-97, 125 L.Ed.2d at 482-83; accord, Mitchell v. Commonwealth, 908 S.W.2d 100, 101-102 (Ky.1995), overruled in part by Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999) (Daubert hearings no longer required for DNA evidence). On appeal, the standard of review is whether the trial court abused its discretion in deciding the admissibility of the expert opinion evidence. Mitchell, 908 S.W.2d at 102.

As for whether Dr. Davis was qualified to testify regarding the side effects of methadone and promethazine, the evidence established that Dr. Davis was a board-certified forensic pathologist who was currently employed as Associate Chief Medical Examiner for the State of Kentucky. Dr. Davis testified that he studied pharmacology and was specifically trained in toxicology analysis. In addition, Dr. Davis testified that he did a six-month fellowship (as part of his internship) in a drug and alcohol detoxification unit of a hospital, and has worked on many cases over the past seventeen years wherein people have been killed by toxic substances. We believe that Dr. Davis was eminently qualified to testify to the risks and adverse effects of methadone and promethazine in this case.

Relative to the Daubert analysis, Dr. Davis testified that he learned the known risks and side effects of all classes of drugs, including methadone and prometha-zine, from his pharmacology and toxicology classes in medical school. Smith complains that the trial court failed to analyze Dr. Davis’s testimony under all the factors set out in Daubert, specifically, whether the theories regarding the drugs’ effects were scientifically valid, whether the theories had been scientifically tested, and whether the theories had been subjected to peer review or publication. Our Supreme Court stated as follows with regard to application of the factors in Daubert:

We emphasize that the inquiry into reliability and relevance is - a flexible one. The factors enumerated in Daubert and Mitchell are neither exhaustive nor exclusive. A trial court may apply any or all of these factors when determining the admissibility of any expert testimony.

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky.2000). The Thompson Court also recognized that in certain cases, the trial court may take judicial notice of reliability of the expert testimony if it has gained general acceptance within the relevant scientific community. Id. at 579; see also Fugate, 993 S.W.2d at 936-37; Johnson v. Commonwealth, 12 S.W.3d 258, 261-62 (Ky.1999). Although Dr. Davis did not specify what publications he was referencing or the specific studies that determined the drugs’ side effects, we believe the known side effects of drugs have such widespread and general acceptance within the medical community that Dr. Davis’s testimony was sufficiently reliable.

The next factor to be considered by the court is the relevance of the expert opinion testimony under KRE 401, subject to balancing probativeness against prejudice under KRE 403. Smith argues that the evidence that she was on methadone was prejudicial and outweighed its proba-tiveness. We disagree. The Commonwealth’s entire case was based on the fact that Smith was aware of and consciously disregarded the risk of driving while taking methadone and promethazine. KRS 507.040; KRS 508.010; KRS 501.020. Thus, the risks and adverse effects of the drugs were directly relevant to the determination of Smith’s guilt. And the evidence of the risks and adverse effects of those drugs was not outweighed by any undue prejudice pursuant to KRE 403.

The last factor to be decided is if the expert opinion testimony will assist the trier of fact under KRE 702. Because the evidence of the risks and side effects of methadone and promethazine was critical to’the determination of whether Smith was aware of and consciously disregarded these risks, and said evidence was outside the common knowledge of jurors, see Stringer, 956 S.W.2d at 889-90, it was properly admitted.

Smith’s primary complaint relative to Dr. Davis’s testimony was that it did not account for the generally accepted theory within the medical community that individuals on methadone maintenance function normally when taking methadone and do not experience the adverse side effects normally associated with the drug. First, although defense counsel recognized the need at the pre-trial hearing for its own expert witness to espouse this theory, no such expert was ever called by the defense. Secondly, the Commonwealth presented evidence that Smith took not only her daily dose of methadone on the morning of the wreck, but also took prometha-zine, even though she was aware of the risks of combining drugs. Finally, when asked by the defense on cross-examination if certain individuals could function daily and perform complex tasks without impairment while taking promethazine and methadone, Dr. Davis conceded that it was possible. Dr. Davis acknowledged that the level of impairment from drugs varies from person to person according to their tolerance level.

Smith also complains that the court erred in allowing the testimony of Jane Purcell, the KSP lab chemist who tested Smith’s blood sample for the presence of drugs, to be admitted. Consistent with Dr. Davis’s testimony, Purcell testified that both methadone and prometha-zine cause drowsiness and sleepiness. Initially, defense counsel stipulated to the experience and training of Purcell. However, when the prosecution began asking Purcell about the side effects of methadone and promethazine, defense counsel objected on grounds that Purcell was not qualified to testify to the side effects of drugs. A bench conference ensued which was not audible on the videotape of the trial. The court ultimately ruled that Purcell was qualified to testify to the effects of prome-thazine and methadone, but later adjudged that she could not testify about the drugs’ effects on driving or the factors affecting the level of impairment on individuals.

Purcell testified that along with her education and training in chemistry and toxicology, she had attended conferences and workshops on different classes of drugs and how they affect driving. The determination of whether an individual is qualified to render expert opinion testimony on a particular subject is within the sound discretion of the trial court. Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky.1999). We do not believe the trial court abused its discretion in allowing Purcell to testify to the side effects of methadone and promethazine in this case.

For the reasons stated above, the judgment of the Bell Circuit Court is affirmed.

ALL CONCUR.


author: LAURA DENVIR STITH, Judge.

text:
    Michael E. COYLE, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. SC 86739.
    Supreme Court of Missouri, En Banc.
    Nov. 22, 2005.
    Rehearing Denied Jan. 31, 2006.

      James A. Chenault, III, Special Asst. Atty. Gen., Jeremiah W. (Jay) Nixon, Aty. Gen., Cheryl C. Nield, Asst. Atty. Gen., Jefferson City, for Appellant.
    Jeffrey S. Eastman, Gladstone, for Respondent.
   LAURA DENVIR STITH, Judge.

Michael E. Coyle’s driving privileges were suspended pursuant to section 302.505.1. After a trial de novo, the trial court entered judgment for Coyle. On appeal, the case was reversed and remanded. Coyle v. Dir. of Revenue, 88 S.W.3d 887 (Mo.App.2002)(Coyle I). On remand, the trial court again entered judgment for Coyle. The trial court concluded that the director of revenue failed to show compliance with the 15-minute observation period as required by Carr v. Director of Revenue, 95 S.W.3d 121 (Mo.App.2002). The judgment is reversed, and the case is remanded.

FACTS

The facts of the case are more fully set out in Coyle I. On that appeal, the court held that the director had established a prima facie case, but remanded the matter to allow Coyle the opportunity to present rebuttal evidence.

For purposes of this appeal, the salient facts are that Coyle was arrested at 1:05 a.m. After an initial investigation, the officer placed Coyle in the front seat of the patrol car. The officer then returned to Coyle’s vehicle to determine whether Coyle’s wife could drive. After administering a portable breath test and determining that she could not, the officer escorted her to his patrol car as well. The officer drove the Coyles’ car to a safe location 35 to 50 feet away from where it was stopped. Coyle provided a breath sample at 1:22 a.m. During this 17-minute period, the trial court found Coyle was left unattended in the patrol car for a minimum of five minutes. There was no evidence that during this period Coyle smoked, vomited or had an oral intake of any material. There was some evidence that Coyle belched during the observation period while sitting in the patrol car.

STANDARD OF REVIEW

In reviewing a court-tried case, this Court sustains the judgment of the court below unless the judgment is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When the evidence is uncontroverted and the real issue concerns its legal effect, this Court need not defer to the trial court’s judgment. Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002).

ANALYSIS

The director argues that Coyle failed to rebut the prima facie case since he did not adduce any evidence that he engaged in any proscribed conduct during the requisite 15-minute observation period.

This Court restated the basis for rebutting the director’s prima facie case in Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). A prima facie case for suspension under section 302.505.1 is established if the director presents evidence showing: (1) probable cause for the arrest and (2) the driver’s blood alcohol level exceeded the legal limit. This evidence creates a presumption that the driver was intoxicated. To show that the blood alcohol level was excessive, the director can introduce evidence of a breathalyzer test. To establish a prima facie foundation for the admission into evidence of the results of a breathalyzer test, the director must establish the test was performed: (1) following the approved techniques and methods of the division of health, (2) by an operator holding a valid permit, (3) on equipment and devices approved by the division. Stuhr v. Director of Revenue, State of Mo., 766 S.W.2d 446, 449 (Mo. banc 1989).

Once the director makes a prima facie showing of probable cause to believe that the person was driving while intoxicated, the driver is entitled to present rebuttal evidence that raises a genuine issue of fact regarding the validity of the blood alcohol test results. The rebuttal evidence should challenge the presumption of validity established by the director’s prima facie case. Verdoorn emphasized that the director retains the burden of proof throughout the proceeding; the driver’s burden is one of production — not persuasion. Verdoorn at 546.

In light of Verdoorn’s restatement of the law, cases that were decided before Verdoorn are of very limited value in determining what evidence is sufficient for a court to find that the director’s prima facie case is rebutted. As noted by Verdoorn, where the driver is attempting to rebut the foundation for a test showing that his or her blood alcohol exceeded the statutory limit, the rebuttal evidence must raise a genuine issue of fact regarding the validity of the blood alcohol test results. Id.

Here, the driver is attempting to attack the validity of the blood alcohol test results by showing that the driver was not observed for a 15-minute period prior to taking the test. Such an observation period is required by 19 CSR 25-30.060. For purposes of this case, the regulations required, in part, the following: the subject was observed for 15 minutes by a named person; no smoking or oral intake of any material occurred during the observation period; and, if vomiting occurred during an observation period, the 15-minute observation period was started over.

If the driver alleges a proper 15-minute observation period did not occur, at least three scenarios may arise:

♦ First, evidence may be presented that during the relevant 15-minute observation period the subject smoked, had oral intake of any material, or vomited. Since the reason for the 15-min-ute observation period is to ensure that neither smoking, vomiting nor oral intake of materials occur during the 15 minutes prior to testing the blood alcohol level, the regulation effectively creates a presumption that smoking, vomiting or oral intake of material during the 15-minute period invalidates the test results. Evidence, if believed by the court, that one of these events occurred during the 15 minutes prior to the test is sufficient to rebut the director’s prima facie case without presentation of any additional evidence as to the specific effect of smoking, vomiting, or other oral intake of material on the blood alcohol results.
♦ Second, the driver may present evidence that during the relevant 15-minute observation period the driver did something or was subject to some factor other than smoke, oral intake of any material, or vomiting that affects the validity of the blood alcohol results. The regulations do not create a presumption that such other factors affect the validity of the test. Therefore, by merely showing that some other factor has occurred, the driver had not rebutted the director’s prima facie case unless there is also evidence showing, by expert testimony or otherwise, that the new factor raises a genuine issue of fact regarding the validity of the blood alcohol test results.
♦ Third, the only evidence presented may be that the 15-minute observation period was not observed. While a failure to observe the driver for the requisite 15-minute period permits the driver to present evidence that an event occurred during that period that affected the result, if the driver fails to offer such evidence, then the director’s prima facie case has not been rebutted, as the lack of observation, without more, does not provide a basis to question the validity of the blood alcohol test results.

Applying these standards to this case, Coyle I resolved that the director established a prima facie case. On remand, however, Coyle was entitled to rebut the director’s prima facie case with evidence that his blood alcohol content did not exceed the legal limit. Verdoom at 545. This rebuttal evidence could include evidence that the foundation for the test results was not sound. See Brandon v. Director of Revenue, State of Mo., 161 S.W.3d 909, 914 (Mo.App.2005).

On remand, Coyle presented rebuttal evidence, which the trial court credited, that the officer did not observe Coyle for the requisite 15-minute period. As noted, such evidence is not sufficient alone to rebut the director’s prima facie case. For the reasons discussed above, Coyle was also required to present evidence that he smoked, vomited or orally took other materials during that period or evidence that some other factor occurred with additional evidence showing that the factor affected the validity of the blood alcohol test results. He failed to do so. While Coyle presented some evidence that he belched during the 15-minute period, the trial court did not consider such testimony, Coyle presented no evidence as to the effect of belching on blood alcohol test results, nor is the effect of belching on blood alcohol test results a matter subject to judicial notice. Accordingly, Coyle failed to rebut the director’s prima facie case.

CONCLUSION

Because the trial court relied solely on the evidence relating to the observation period in reaching its decision, and because that evidence was insufficient to rebut the director’s prima facie case, the judgment is reversed. Because Coyle offered other evidence that the trial court did not consider and that may be relevant to the determination whether the director’s prima facie case was rebutted, and because cases decided prior to Ver-doom may have created confusion as to whether and when the driver must present evidence to rebut the director’s prim a fa-cie case if the 15-minute observation period has not been observed, the case is remanded.

All concur.

      . All statutory references are to RSMo 2000.

      . Carr was not decided at the time of the first trial de novo.

      . The division of health regulations are found at 19 CSR 25-30.060.

      . E.g., Carr; Duing v. Dir. of Revenue, 59 S.W.3d 537 (Mo.App.2001); Testerman v. Dir. of Revenue, 31 S.W.3d 473 (Mo.App.2000); Krieger v. Dir. of Revenue, 14 S.W.3d 697 (Mo.App.2000).

      . See, e.g., cases cited in note 5.