                IMPORTANT NOTICE·
         . NOT TO BE PUBLISHED OPINION

· THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
   PURSUANT TO THE RULES OF CIVIL PROCEDURE
   PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), .
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   UNPUBLISHED KENTUCKY APPELLATE DECISIONS, -.
 · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
   CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
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                                                     RENDERED: SEPTEMBER 28, 2017
                                                             NOT TO BE PUBLISHED




                     ·~uvr:etttt ·dlnurf nf ~:tnfudttt
                                       2016-SC-000219-DG



BRADLEY RIFFE                                                                  APPELLANT


                          ON REVIEW FROM COURT OF APPEALS
V.                             CASE NO. 2014-CA-001104
                         FAYETTE CIRCUIT COURT NO. 13-T-19518



COMMONWEALTH OF KENTUCKY                                                        APPELLEE



     MEMORANDUM OPINION OF THE-COURT AND ORDER DISMISSING
                 ,                           APPEAL                                  .

                                          DISMISSING

     Facing charges of third-offense_ driving under the influence of alcohol, .

Bradley Riffe        refu~ed   to submit to the statutorily required alcohol concentration

test._ A district court jury eventually acquitted Riffe of the_ DUI charge, and 19

days after the judgment of acquittal, the_ Commonwealth moved the trial court

to hold a   license~suspension        hearing based upon ·Riffe's initial refusal to take
             '                 -
the test. The trial court held the requested hearing and imposed the maximum

license suspension allowed by law, 3q months. On appeal_from this license

suspension, -Riffe argued that the district court had lost its jurisdiction over his

case -bec~use the Commonwealth did not timely file its motion for license
suspension. Both the    ~ircuit   court and the Court of Appeals' disagreed with

Riffe and affirmed the district court's suspension ruling. We conclude that
'                                                .



today's case is moot.


                I.   FACTUAL AND PROCEDURAL BACKGROUND.

      On August 31, 2013, a police officer stopped Riffe for speeding.

Suspecting Riffe of DUI, the officer administered a field sobriety test to Riffe, .

which. he failed. The officer
                        ,     placed
                                .
                                     Riffe under
                                           .
                                                 arrest and transported
                                                     .           .
                                                                        him to

the detention center. When requested to submit to an In:toxilyzer test, Riffe

refused the test on advice of counsel. He was charged with speeding, having no

or expired registration plates, failing to maintain the required proof of

insurance-first offense, excessive window tinting, and DUI-third offense. In

conformity with KRS 189A.200(1)(a), at Riffe's arraignment on September 3,

2013, the trial court ordered a pretrial suspension of Riffe's driver's license for

his refusal to submit to the alcohol-concentration test ..

     . Riffe's case proceeded to trial on October 16, 2013. The jury convicted

him of speeding but acquitted.him of the DUI charge. He pleaded guilty to the

charges regarding expired plates arid· failure to have proof of insurance, and the

excessive .window tinting charge merged into the other charges.

      Immediately following his acquittal arid the discharge of the. jury, Riffe's ·

counsel oraliy moved th.e trial court to vacate the pretrial suspension of Riffe's

driver's license. A discussion ensued between the trial court and counsel

concerning the operation of the pretrial-suspension statute as applied to Riffe's

case. The trial court concluded the discussion by denying Riffe's request to lift


                                            2
 the suspension, directing counsel to "find me some law" on the issue and to

 ~file   something."

          The Commonwealth filed a motion 19 days post.judgment, asking the

· district court to hold a license-suspension ·hearing unde:r KRS 189A.107(2). At

 the hearing, ·Riffe stipulated -that he had. two previous DUis within a fi~e-year

·period and.he did not dispute that he refused the Intoxilyzer test. Riffe did not

 contest.the trial court's jurisdiction over his case. Instead, he advocated for the

 mjnimum statutory suspension, 24 months, while the Commonwealth sought

 the maximum suspension of 36 months. The trial court granted the

 Commonwealth's motion to suspend Riffe's license. for 36 months, expiring in

 September of 2016. Riffe appealed to the circuit court from the order of·

 suspension.

         • The circuit court reviewed the district court's ruling a;nd affirmed. Riffe

 argtied at the circuit co-urt level that_ when a defenda_nt, who has refused the

 alcohol-concentration test, is acquitted     ~f   DUI charges, the Commonwealth

 must move simultaneously with the entry of judgment to suspend the

·defendant's driver's license._.Riffe asserted that in this case, because of the

 Commonwealth's failure. to do so, the trial
                                        .    court lost jurisdiction over. his case.

 The circuit court held that the argument was without merit.

          The Court of Appeals granted Riffe's motion for discretionary review and

 affirmed the 36-month suspension. Once again, Riffe advanced the position

 that the district court lacked jurisdiction to decide the case. The Court of

 Appeals did not address the issue in its analysis, reasoning the issue .involved

 particular-case jurisdiction, which Riffe. waived.
                                             3
                                          II. ANALYSIS

       We are asked to interpret KRS 189A.107(2), and if we were to do so, it

would call for statutOry
                '
                         interpretation
                               -
                                        and a de novo standard
                                                            -
                                                               of review.I

Instead, .we are constrained to conclude the case is moot because Riffe's

suspensior;i. expired no later than      S~ptember   of 2016.

       This Court indulged.in an in-depth analysis of the mootness doctrine in

Morgan v.· Getter. 2· While we found an exception to the mootness doctrine in

that case, it provides a thorough examination of the jurisprudential. approach

taken in Kentucky with regard, to the mootness doctrine.

   · As we noted in Getter, "[a] 'moot case' is one which seeks to get a

Jl:J.dgment ... upon some matter which, when rendered, for any reason, cannot

ha~e   any practical legal effect upon a then      e~sting   coi:itroversy."3 That is the

case before us today. Riffe     W8:S   given a 36-i.nonth susp(!nsion, which he asserts

was   i~proper    because the· district court did not have jurisdiction to issue such .

a suspension. But that suspension expired well before our review. Even if we

were to agree with Riffe, it would have no effect, because he is no longer
                                  -                                 -

restrained by a suspended license. It is a longstanding practice that "where,

pending appeal,_ an event occurs which makes a determination of the              que~tion


unnecessary o:r:-.which would render the judgment that might be pronounced




       1   Saint Joseph Hospital v. Frye, 415 S.W.3d 631, 632    (~y.   2013).
       2   Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).
       a   Id. (citing Benton v. Clay, 223 S.W. 1041 (Ky. 1921)).
                                              4
 ineffectual, the appeal
                   .
                         should be disn;iissed." 4 We do not. decide moot cases

 because the role of our Court is. not to give advisory opinions. s

       But like many rules, there are exceptions that allow us to decide a case

 even if the controversy is moot. Unfo_rtunately for Riffe, this case satisfies none

 of these   exc~ptions.


       One such example of a tnootness exception is the collateral-

 conseqµences exception. 6 Typically this exception is invoked in a criminal case

 where the criminal punishment may have already been served but there are

 enduring consequences for the conviction, like the loss of civil rights as a result

 of the conviction. 7 This continuarloss of a right, for example the right to vote

 for those over 18, keeps the appellant's claim justiciable and brings it outside.

 of the mootness doctrine. Riffe does not suffer any collateral consequences to

 his license suspension. He was. acquitted on the DUI charge and does not

 continue to suffer any consequences related to the license suspension.

       A second exception to the mootness doctrine involves voluntary

 cessation.B.Voluntary cessation draws a mootness exception because_ it would

. allow parties to the litigation. to manipulate the appellate system. For example, .

 the aggrieved party could cease the activity in dispute, have the appeal

 dismissed, and then freely return to the disputed behavior. Riffe's claim that



       4   Id. (quoting Louisville Transit Cqmpany v. Department of Motor Transportation,
 2~6 S.W. 536, 538 (Ky. 1956)).

       s Id. (citation.s omitted).
       6   Id. at 99.
       7 Id.
       s Id. (citing United States v. W.T. Grant Company, 345 U.S. 629 (1953)).
                                              5
the trial court did not have jurisdiction to issue his license suspension is not

the type of behavior that the voluntary-cessation doctrine envisions.

      The next two exceptions were commonly confused in our jurisprudence,

but this Court in Getter clearl:y distinguished the two. The two exceptions to the

mootness doctrine are those cases that are "capable of repetition, yet evading

review" and those that invite application. of the "public int.erest exception." Riffe

does not qualify for either exception, but we willdiscuss them below.

      For the capable-Qf-repetition-yet-evading-review exception to .apply, two

elements must be satisfied: "the challenged action          mus~    be too short in

duratiori to be fully litigated prior to its cess8:tion or expiration, and (2) there

~ust be· a ~eas9nable expectation that the same complaining party will be :

subjected to the same action again. "9 And while we. do not believe. Riffe satisfies
                                                                                  .

either element, it is clear that he does not satisfy. the second of the two ..

     'The key to the second element is whether ·Riffe is suffering from a threat

of actual injury or protected interest, or is merely speculating about future

harm. Accordingly, "there must be a reasonable expectation and not merely a

physical or theoretical possibility, that the complaining party would be

subjected again to the same action."IO

      An example satisfying the above exception is the plaintiff newspaper

companies 'in Lexington Herald-Leader Company             v~ Meigs. I I   In Meigs, the trial

court denied newspapers access to individual voir dire of prospective jurors in



      9   Jd. (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. ,1992)).
      10    Corpus Juris Secundum:... IA C.J.S. Actions§ 82.
      ·11   Lexington Herald~eaderCompany v. Meigs, 660 S.W.2d 658 (Ky. 1983).
                                               6·
 a criminal death -penalty case. The newspapers appealed, but before a decision

 could be made on the merits by this Court, voir dire had already occurred,

 making ariy ruling moot. After considering the facts of the case, we applied the

·capable-of-repetition-yet-evading-review exception. In doing so, we recognized

 that the complaining newspapers were likely to face a simiiar ins~ance in the

 future, as it was their role to report the news, and criminal trials tend to be

 newsworthy, and will continue to be so in the future. Accordingly, it was

 reasonable to believe that the news organizations would find them\elves once

 again in the exact same position.

       The likelihood that Riffe will be subjected to the same action he

 complains of is quite attenuated. To accept that Riffe is under real threat of

 the action in dispute being repeated would require us to believe that it is more

than just speculation that he ·will o.nce again be arrested for DUI, be acquitted
                                                      I   •.


 by a jury, and have a district C<?Urt issue a 36-month license-suspension order

. more than 10 days after entry of the· judgment of acquittal. Having failed to

 meet the second element, Riffe's controversy does not qualify for this mootness

 exception.

       The final mootrtes·s exception recognized in the Commonwealth is the

 public-interest exception. The public interest exception requires three elements

to be met: "(I) the question presented is of a public nature; (2) there is a need

 for an 'authoritative determination for the future guidance of public officers;
                                               )

 and (3) there is a likelihood of future recurrence of the question." 12 Inv:oking



       · 12   Id. at 102 (citation omitted).
                                               7
· this exception requires the party asserting justiciability to show that "there is a·
                                                       .                                     '•




 rieed for an authoritative determination for the future guidance of public

 officers." 13

         At oral argument Riffe asserted that this Court should             adc:~ress   the merits

 of this case because lower courts would benefit from the guidance. But the fact

 that lower courts would receive additional guidance is not sufficient to meet the

 public-interest exception. We must be careful not to construe.this exception too

 broadly and erode the timeworn and well-established mootness doctrine .

         We applied the public-interest exception in Getter. In doing_ so we

. explained. that the disputed. issue was a question "currently pertinent to a
     .                      .                                                                     (
 substantial. number of family court proceedings and an issue about which our
                                                  .                                      .

 circuit courts addressing custody matters would benefit from guidance." 14

 Aside from Riffe's assurances at oral argument that the application of KRS

 189A.1~7(1)(a) to facts as presented in the case at hand, we have no ~eason to

 believe that
           . it is of such a frequent occurrence. or tfiat there is such a large

 pending caseload of similarly situated individuals that failure to provide .

 guidance will leap. to an improper license suspension. Therefore, Riffe does not

 qualify for the public interest·exception.




         13   Id. (quoting In re Alfred H.H., 910 N.E.2d 7 4, 80 (Ill. 2009)).
         14   Id. at 103.
                                                  s·
 The Court ORDERS the.case, being moot, is dimissed.

       All sitting. All concur.

       ENTERED: September 28, 2017.




                                     ·cHI   USTICE JOHN D. MINTON,. R.


 COUNSEL FOR APPELLANT:

 Fred E. Peters
 Rhey Denniston Mills
 Fred Peters Law Office


 COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Jacqueline Alexander
Kenton County Attorney

 Steven Paul Stadler
·Assistant Fayette County Attorney

Janet Luo                                                    (


Fayette County Attorney




                                       9
