              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 NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED/'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),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR,USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY.COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·.
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED ~OR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT·WOULD ADEQUATELY·ADDRESS THE ISSUE
BEFORE THE. COURT. OPINIONS CITED FOR CONS.IDERATION
BY THE COURT .SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALO.NG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE .
ACTION.




                                         (
                                                 RENDERED: SEPTEMBER 28, 2017
                                                         NOT TO BE PUBLISHED




 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, 36 months. On appeal from this license

 suspension, Riffe argued that the ·district court had lost lts jurisdiction over his

 case because 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 and· 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 orally 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 Iicense-suspensioffhearing under KRS 189A:l07(2). At

 the hearing, Riffe stipulated that he had two previous DUls· 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

 argued at the circuit cot:trt level that when a defendant, who has refused the
                              I       .   •       .        •




 alcohol-concentration test, is acquitted of 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 t.rial court lost jurisdiction over his case.

 The circuit court held that the argume~t 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 addres.s 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 .1

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

suspension 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

judgment ... upon some matter which, when rendered, for any reason, cannot

have
  .
     any practical legal effect upon a then existing
                                              .      controversy." 3 That is the

case before us today. Riffe w~s given a 36-ino~th susp~nsion, which he asserts

was improper because the· district court did not have jurisdiction to issue such

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

w~re   to agree with Riffe, it would have no effect, because he is no longer

restrained by a suspended lice:nse. It is a longstanding practice that "where,

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

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




        1   SaintJosephHospi.taZ.v. Frye, 415 S.W.3d 631, 632 (l(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 disI!lissed." 4 We do not. decide moot cases

 because the role of our Cou.rt 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-

 consequences 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 continual loss 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 exarriple, .

 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 Transzt Cqmpany v. Department of Motor Transportation,
 2~6 S.W. 536, 538 (Ky. 1956)).                                     .
        s Id. (citation.s omitted).
        6   Id. at 99.
        1 Id.
        a 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 tw:o exceptions to the

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

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

does not qualify for either exception, but we wiH discuss 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

duration to be fully litigated prior to its cessation or expiration, and (2) there

must be a reasonable expectation that the same complaining party will be

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

either element, it is clear that he doe-snot 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." 10

      An example satisfying the above exception is the plaintiff newspaper

companies in Lexington Herald-Leader Company             v~   Meigs. 11 In Meigs, the trial

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



      9   Id. (citing Philpot v. Patton, 837 S.W.2d 491 (Ky. 1992)).
      10   Corpus Juris Secundum ;_ IA C.J.S. Actions § 82.
      ·11 Lexi.ngtonHerald-~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        fac~s   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 similar inst_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. Accordi11gly, it was
                                               .                                  .
 reasonable to believe that the news organizations would find themselves 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

 by ajury, and have a district court
                                .    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 mootness 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 address the merits

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

   that lower courts would receive additional gu,idance is not sufficient to meet the
                              .                                                   .
   public-interest exception. We must be careful not to construe ·this exception too

   broadli 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 benefif from guidance." 14

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

   189A.107(1)(a) to facts as presented in the case at hand, we have no reason to

   believe th~t it is of such a frequent occurrence or that there is such a large

   pending caseload of similarly situated individuals that failure to provide . .

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

   qualify for the public interest exception.




                                                                                      I
                                                                                  /
          13    Id. (quoting In re Alfred H.H., 910 N.E.2d 74, 80 (Ill. 2009)).
           14   Id. at 103.
                                                    8
The Court ORDERS the case, being moot, is dimissed.

      All sitting. All concur.

      ENTERED: September 28, 2017.




                                     CHI   USTICEJOHN 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
