Dissenting.
On December 12, 1997, Appellant George H. Burchett, Jr., drove his vehicle past a stop sign without slackening speed and into the Bloyds Crossing intersection of Kentucky highways 61 and 569 in Green County, Kentucky, and collided with a vehicle being driven by Sherman Darnell. Darnell, who had the right of way at the intersection, was resultantly killed. Appellant was indicted for manslaughter in the second degree and, following a trial by jury, convicted of reckless homicide and sentenced to imprisonment for five years. To prove a criminal mens rea, Le., wantonness or recklessness, as opposed to mere negligence, the Commonwealth sought to prove that Appellant was operating his vehicle under the influence of drugs and/or alcohol. See Estep v. Commonwealth, Ky., 957 S.W.2d 191, 193 (1997) (wanton murder conviction upheld on evidence of the defendant’s ingestion of controlled substances and subsequent erratic operation of a motor vehicle). Specifically, the Commonwealth sought to introduce evidence of Appellant’s own statements made at the scene of the collision and/or subsequently at the hospital that he “drinks anywhere from one-half to three-fourths of a gallon a day of vodka” (one-half gallon of vodka was found in Appellant’s vehicle) and that “I smoke one joint [marijuana cigarette] in the morning and one at night.” He also made conflicting statements at the hospital as to whether he had smoked marijuana on the day of the fatal collision.
A laboratory test of a sample of Appellant’s blood was negative for alcohol content. However, a drug screen of Appellant’s urine sample was positive for Valium, Tylenol 3, and marijuana. The Commonwealth also had evidence that Appellant “had the giggles” on the day of the collision and had left his work duties (stripping tobacco) on numerous occasions that day for short visits to his automobile; and that the known effects of marijuana consumption include a feeling that everything is fine, a better mood, talkativeness, a lessening of motor control, and altered judgment.
Appellant moved in limine, KRE 103(d), to suppress his admissions as to his alcohol and marijuana habits on grounds that the statements were either inadmissible character evidence, KRE 404(a), or inadmissible evidence of other crimes, wrongs, or acts, KRE 404(b). In fact, as correctly noted in the plurality opinion, ante, Appellant’s admissions constituted neither character evidence nor evidence of other crimes, wrongs, or acts, but evidence of habit. In view of the laboratory test results, the trial judge, in weighing probative value against the danger of undue preju*503dice, KRE 403, sustained Appellant’s motion to suppress the evidence of his admitted alcohol habit but overruled the motion to suppress the evidence of his admitted marijuana habit.
Obviously, Appellant’s admission that he smoked two marijuana cigarettes every day, one in the morning and another at night, was probative of the Commonwealth’s theory of the case, especially in view of Appellant’s conflicting statements to hospital personnel as to whether he had, in fact, smoked marijuana on the morning of the collision. Nevertheless, for various reasons expressed in three separate opinions, a majority of this Court has concluded, at least in this case,1 that we should retain our 100-year-old rule excluding, under all circumstances, admission of evidence of an individual’s habit as circumstantial proof of his/her conforming conduct on a specific occasion and thereby maintain our status as the only jurisdiction in the United States that does so.
I. HABIT EVIDENCE VS. CHARACTER EVIDENCE.
In recommending admission of habit evidence, as opposed to character evidence, the Advisory Committee’s Notes to Federal Rule of Evidence (FRE) 406 reiterated the oft-quoted paragraph from McCormick’s treatise on the law of evidence:
Character and habit are close akin. Character is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of habitual acts may become semi-automatic.
FRE 406 Advisory Committee’s Note (1972) (quoting McCormick, Evidence § 162, at 340 [now see John W. Strong, 1 McCormick on Evidence § 195, at 584-85 (5th ed. West 1999)]).
Both character evidence and habit evidence are offered as circumstantial evidence of conforming conduct. The element of habit evidence that distinguishes it from character evidence is the element of specificity, as opposed to mere disposition. Thus, evidence that Appellant is a “drunkard” would be character evidence, whereas evidence that he drinks “one-half to three-quarters of a gallon a day of vodka” is evidence of a habit. See generally 29 Am. Jur.2d, Evidence § 391 (1994). The Advisory Committee noted that “[ajgreement is general that habit evidence is highly persuasive of conduct on a particular occasion.” FRE 406 Advisory Committee’s *504Note, supra (emphasis added). Again quoting McCormick:
Character may be thought of as the sum of one’s habits though doubtless it is more than this. But unquestionably the uniformity of one’s response to habit is far greater than the consistency with which one’s conduct conforms to character or disposition. Even though character comes in only exceptionally as evidence of an act, surely any sensible man in investigating whether X did a particular act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it.
Id.
II. PROOF OF HABIT.
The National Conference of Commissioners on Uniform State Laws promulgated the first version of the Uniform Rules of Evidence (URE) in 1953. 13A Uniform State Laws Annotated 3 (West 1986). As work progressed on the Federal Rules of Evidence, the Uniform Rules were redrafted with a view to conform to the Federal Rules so far as practicable. Id. at 5. The final version of the Uniform Rules was promulgated in August 1974 and recommended for adoption in all states. Id. at iii. URE 406 (“Habit; Routine Practice”) provides:
(a) Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
(b) Method of proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.
The Federal Rules of Evidence were adopted by Congress in 1975. Pub.L. 93-595, § 1, Jan. 2, 1975, 88 Stat.1932. FRE 406 is identical to URE 406(a). However, Congress did not adopt URE 406(b) and most jurisdictions that have adopted a version of URE 406 have also omitted subsection (b).2 See Jack B. Weinstein and Margaret A. Berger, 2 Weinstein’s Evidence ¶ 406[05] (Matthew Bender 1989). In jurisdictions that have adopted URE 406(a), but not URE 406(b), the method of proof of habit or routine practice is determined on a case-by-case basis. Typically, it is established by testimony of a knowledgeable witness that there exists such a habit or practice. John W. Strong, 1 McCormick on Evidence, supra, § 195, at n. 20. Of course, here, the proof was even stronger since it consisted of the admission of Appellant, himself, the person most knowledgeable of his own habits.
If proof of habit is by specific instances of conduct,3 there must be evidence of enough such instances to establish the existence of a habit, and the circumstances under which the habit is followed must be present at the time of the conduct sought to be proved. Id. § 195, at n. 22, 23; see also John Henry Wigmore, 2 Evidence § 375 (3d ed. Little Brown & Co.1940). The elements of a habit are generally said to be (1) regularity, (2) specificity, and (3) an involuntary or semiautomatic response. 29 Am.Jur.2d, Evidence § 393 (1994). The *505last element, however, does not require that the response be reflexive or nonvoli-tional,4 but only that it be uniform. Steinberg v. Arcilla, 194 Wis.2d 759, 535 N.W.2d 444, 447 (App.1995) (“a person’s ‘regular response’ need not be ‘semi-automatic’ or ‘virtually unconscious” ’ in order to be admissible). “[A]dequacy of sampling and uniformity of response are key factors.” FRE 406 Advisory Committee’s Note, supra; Wright and Graham, supra, note 3, § 5233. The requirements for admission of habit evidence were summarized as follows in the frequently cited case of Wilson v. Volkswagen of America, Inc., 561 F.2d 494 (4th Cir.1977):
It is only when the examples offered to establish such pattern of conduct or habit are “numerous enough to base an inference of systematic conduct” and to establish “one’s regular response to a repeated specific situation” or, to use the language of a leading text, where they are “sufficiently regular or the circumstances sufficiently similar to outweigh the danger, if any, of prejudice and confusion,” that they are admissible to establish pattern or habit. In determining whether the examples are “numerous enough” and “sufficiently regular,” the key criteria are “adequacy of sampling and uniformity of response,” or, as an article cited with approval in the note to Rule 406, Federal Rules of Evidence, puts it, on the “adequacy of sampling” and the “ratio of reactions to situations.”
These criteria and this method of balancing naturally follow from the definition of habit itself as stated in the Model Code of Evidence: “Habit means a course of behavior of a person regularly repeated in like circumstances.”
Id. at 511 (citations omitted). The court went on to explain that “ratio of reactions to situations” means a “comparison of the number of instances in which any such conduct occurs with the number in which no such conduct took place.” Id. at 512.
Thus, in United States Football League v. National Football League, 842 F.2d 1335 (2d Cir.1988), evidence that the National Football League disregarded antitrust advice three or four times over a twenty-year period was insufficient to prove a pattern of behavior amounting to habit, id. at 1373; in Weisenberger v. Senger, 381 N.W.2d 187 (N.D.1986), a brother of a deceased motorist was precluded from testifying that the deceased, who was reported to have been driving over the center line at the time of the fatal collision, had a habit of driving on the extreme right side of the road, because the brother was not shown to have observed the decedent’s driving habits with sufficient frequency to be able to testify that such conduct was habitual, id. at 191; and in Waldon v. Longview, 855 S.W.2d 875 (Tex.App.1993), three prior similar accidents over a six-year period were held insufficient to establish habit. Id. at 879.
Specifically with reference to intemperate habits, it was held in Reyes v. Missouri Pacific R. Co., 589 F.2d 791 (5th Cir.1979), that evidence of four prior convictions of public intoxication was insufficient evidence of habit to be probative of intoxication on a given occasion. Id. at 794. However, in Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir.1985), evidence from three sources, including the plaintiff, himself, that he routinely kept a cooler of beer in his truck during working hours, regularly consumed alcohol during working hours, and “nor*506mally” had something to drink in the early morning hours was sufficient evidence of habit to be probative of his intoxication at the time of his on-the-job injury. Id. at 1524. And in Keltner v. Ford Motor Co., 748 F.2d 1265 (8th Cir.1984), evidence that the plaintiff regularly drank a six-pack of beer four nights a week was held to be sufficient evidence of habitual conduct to be probative of his intoxication on the occasion of his injury. Id. at 1269.
There is authority for the proposition that, in a criminal case, evidence of a “habit” of committing the charged offense is inadmissible because “[ejvidence of these habits would be identical to the kind of evidence that is the target of the general rule against character evidence.” United States v. Mascio, 774 F.2d 219, 222 n. 5 (7th Cir.1985) (quoting Edward W. Cleary, McCormick on Evidence § 195, at 574 (3d ed. West 1984)). As applied to the facts of this case, that would mean that the prosecution could not introduce evidence under the guise of “habit” that Appellant had caused other fatal vehicle collisions in the past. Such evidence would be admissible only if it satisfied the requirements of KRE 404(b)(1) or (2). For other applications of the “habit” rule, see generally John P. Ludington, Annotation, Habit or Routine Practice Evidence Under Uniform Evidence Rule 4-06, 64 A.L.R.4th 567 (1988); George H. Genzel, Annotation, Admissibility of Evidence of Habit, Customary Behavior, or Reputation as to Care of Motor Vehicle Driver or Occupant, on Question of His Care at Time of Occurrence Giving Rise to His Injury or Death, 29 ALR 3d 791 (1970).
III. HABIT EVIDENCE IN OTHER JURISDICTIONS.
In addition to the enactment by Congress of FRE 406, forty-three of the fifty states have adopted URE 406(a) either by rule or by statute.5 Five additional states have common law rules admitting evidence of habit to prove conduct with some variation. Georgia and New York admit habit evidence by common law under circumstances virtually identical to those described in URE 406(a). Sams v. Gay, 161 Ga.App. 31, 288 S.E.2d 822, 824 (1982); *507Halloran v. Virginia Chem., Inc., 41 N.Y.2d 386, 393 N.Y.S.2d 341, 361 N.E.2d 991, 995 (1977). Florida admits evidence of habit by common law only if the occurrence of the conforming conduct is corroborated by other evidence. Nationwide Mut. Ins. Co. v. Jones, 414 So.2d 1169, 1171 (Fla.Ct.App.1982).6 (Note that the instant case would satisfy Florida law because the evidence of Appellant’s marijuana habit was circumstantially corroborated by the positive drug screen, the evidence of his demeanor and conduct prior to the accident, his statement to a hospital medical technician that “I haven’t smoked any pot since this morning ” (emphasis added), and the treating physician’s entry in the medical records that Appellant “[a]dmits to one joint this morning (emphasis added).”) Illinois admits habit evidence only when there is no eyewitness testimony with respect to the conduct at issue. Grewe v. West Wash. Cty., 303 Ill.App.3d 299, 236 Ill.Dec. 612, 707 N.E.2d 739, 744-45 (1999).7 Missouri courts have admitted habit evidence, but the precise boundaries of the rule remain unclear. Hawkins v. Whittenberg, 587 S.W.2d 358, 363-64 (Mo.App.1979) (discussing same). Nevertheless, Missouri follows Illinois (at a minimum) and admits habit evidence in the absence of eyewitness testimony. Gerhard v. Terminal R. Ass’n of St. Louis, 299 S.W.2d 866, 872 (Mo.1957). See also State v. Hemby, 63 S.W.3d 265, 269 & n. 2 (Mo.App.2001) (rejecting habit evidence when based on only two prior experiences and noting that the issue has been addressed rarely in Missouri).
Except for Kentucky, Massachusetts is the only jurisdiction that purports to preclude evidence of habit to prove conforming conduct.
For the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts.
Figueiredo v. Hamill, 385 Mass. 1003, 431 N.E.2d 231, 232 (1982) (quoting Davidson v. Massachusetts Cas. Ins. Co., 325 Mass. 115, 89 N.E.2d 201, 205 (1949)). Nevertheless, the Massachusetts Supreme Court has clarified that habit evidence is not inadmissible in all circumstances.
Massachusetts draws a distinction between evidence of personal habit and evidence of business habit or custom .... [Ejvidence of business habits or customs is admissible to prove that an act was performed in accordance with the habit. For example, this court has upheld the admission of evidence of business habits or customs to prove that a letter had been sent, that an insurance application had not been blank when approved, that the police would have impounded money if found in a fugitive’s possession, and that goods unaccompanied with a receipt had not been paid for.
Palinkas v. Bennett, 416 Mass. 273, 620 N.E.2d 775, 777 (1993) (internal citations omitted). And in O’Connor v. SmithKline *508Bio-Science Laboratories, Inc., 36 Mass.App.Ct. 360, 631 N.E.2d 1018 (1994), the Appeals Court of Massachusetts held that a laboratory technician could testify to her “usual practice” of noting a deviation in a urine sample and the significance of the absence of such a notation on the chain of custody form that she signed, id. at 1019, carefully (and somewhat dubiously) characterizing such “usual practice” evidence as admissible evidence of a “business custom” rather than inadmissible evidence of an “individual habit.” Id. at 1021, Massachusetts also has a statute that admits evidence of a decedent’s habits in an action brought against the decedent’s personal representative to rebut evidence of statements made or documents drafted by the decedent when living. Mass. Gen. Laws, ch. 233, § 66. Thus, Kentucky is the only jurisdiction that precludes, under all circumstances, admission of evidence of individual habit or of the routine practice of an organization as circumstantial evidence of conforming conduct on' a specific occasion.
IV. HABIT EVIDENCE IN KENTUCKY.
All of the cases applying Kentucky’s common law rule of exclusion are more than fifty years old8 and many involved what is more correctly categorized as character evidence, not habit evidence. Dawson v. Shannon, 225 Ky. 635, 9 S.W.2d 998, 998-99 (1928) (“habit” of drinking); Louisville & N.R. Co. v. Adams’ Adm’r, 205 Ky. 203, 265 S.W. 623, 627 (1924) (habit of being a “careful and prudent driver”); City of Madisonville v. Stewart, Ky., 121 S.W. 421, 423 (1909) (“habit” of drunkenness); Louisville & N.R. Co. v. Taylor’s Adm’r, Ky., 104 S.W. 776, 778 (1907) (“custom” of reckless driving). Nevertheless, there are other cases where the excluded evidence was properly treated as evidence of habit. Cincinnati, N.O. & T.P. Ry. Co. v. Hare’s Adm’x, 297 Ky. 5, 178 S.W.2d 835, 838 (1944) (evidence that the deceased driver always looked both ways before entering a railroad crossing, used his lowest gear, and always crossed slowly), overruled on other grounds, Louisville & N.R. Co. v. Fisher, Ky., 357 S.W.2d 683 (1962); Louisville & N.R. Co. v. Gardner’s Adm’r, 140 Ky. 772, 131 S.W. 787, 788 (1910) (evidence that the deceased had never been known to be intoxicated); Lexington Ry. Co. v. Herring, Ky., 96 S.W. 558, 560-61 (1906) (evidence that the plaintiff habitually boarded and departed street cars while they were still in motion); Chesapeake & O. Ry. Co. v. Riddle’s Adm’x, Ky., 72 S.W. 22, 23 (1903) (evidence that the plaintiff had never taken an alcoholic drink in his life).9
*509The evidence excluded in those cases would satisfy today’s definition of relevant evidence, i.e., “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” KRE 401. Under KRE 402, all relevant evidence is admissible unless excluded by “the Constitutions of the United States and the Commonwealth of Kentucky, by acts of the General Assembly of the Commonwealth of Kentucky, by these rules, or by other rules adopted by the Supreme Court of Kentucky.” Evidence of habit to prove conforming conduct is not excluded by any constitutional provision, statute, rule of evidence, or rule of this Court; and KRE 402 “contains no exception for preexisting case law.” Garrett v. Commonwealth, Ky., 48 S.W.3d 6, 13 (2001). Presumably, KRE 402 has already superseded our common law exclusionary rule with respect to evidence of habit and routine practice. If not, then we should take this occasion to overrule our outdated precedents and bring Kentucky into the mainstream of American jurisprudence.
Y. EFFECT OF FAILURE TO ADOPT PROPOSED KRE 406.
If I am reading his separate opinion correctly, Justice Keller agrees that our common law rule excluding evidence of habit and routine practice is untenable but is concerned that a decision of this Court to depart from that common law rule would circumvent the KRE 1102 procedure for amending the adopted rules of evidence.
The Committee that drafted the proposed Kentucky Rules of Evidence recommended adoption of a proposed rule identical to URE 406(a) and FRE 406. Evidence Rules Study Committee, Final Draft, at 29-30 (1989). Pursuant to that recommendation, the 1990 General Assembly enacted KRS 422A.0406, adopting proposed KRE 406, 1990 Ky. Acts, ch. 88, § 16, subject only to the approval of the Supreme Court of Kentucky. Id. § 93. Because the 1991 Supreme Court disapproved the adoption of proposed KRE 406, the 1992 General Assembly subsequently repealed KRS 422A.0406. 1992 Ky. Acts, ch. 324, § 30.10 Thus, both the General Assembly and the Evidence Rules Study Committee (three of whose members presently serve on the Evidence Rules Review Commission, KRE 1103) voted to adopt proposed KRE 406. Only this Court disagreed. However, the 1991 Court did not amend proposed KRE 406 to codify the existing common law. The significance of that fact is exemplified by the numerous instances where the Court did amend or even rewrite other proposed rules to codify pre-existing law or, in some instances, to modify both the proposed rule and pre-existing law. See 1992 Ky. Acts, ch. 324 for the 1992 amendments of the proposed rules. With very few exceptions, those amendments were initiated by the 1991 Court, not the 1992 General Assembly. The following are only a few examples of those amendments (deleted language indicated by strikeout; added language in brackets):
The Court amended proposed KRE 103(a)(1), pertaining to preservation of error, to insert language from pre-existing procedural rules, ie., CR 46 and RCr 9.22, *510that required an objecting party to state the specific ground for objection only if requested by the court, viz:
In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record [and upon request of the court] stating the specific ground of objection, if the specific ground was not apparent from the context.
1992 Ky. Acts, ch. 324 § 1(a).
The Court also amended proposed KRE 403 to limit the circumstances under which relevant evidence could be excluded, viz:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair [undue] prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Id. § 3.
The Court amended proposed KRE 407, pertaining to subsequent remedial measures, to ensure that the rule would not apply to criminal or products liability cases, viz:
When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures [in products liability cases or] when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Id. § 6.
The Court essentially rewrote proposed KRE 504, the husband-wife privilege, to
completely change its intended meaning, viz:
(a) Spousal testimony in criminal proceedings; The spouse of an accused [a party] has a privilege to refuse to testify against the accused spouse [party] as to events occurring after the date of their marriage.
[ (b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during the marriage. The privilege may be asserted only by the individual holding the privilege or by the holder’s guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person.]
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Id. § 9(1), (2).
And the Court substituted Kentucky’s pre-existing “Rule in Queen Caroline’s Case,” Fisher v. Duckworth, Ky., 738 S.W.2d 810, 815 (1987), i.e., CR 43.08, with respect to laying the foundation for admission of a witness’s prior statement, for proposed KRE 613, which would have adopted the more liberal federal rule, viz:
(a) Examining witness concerning prior statement. -In-examining a witness-con-cermlng-m-prlor- statement made -by-fee-witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request-the-same shal-l-be-shown or disclosed to opposing counsel-.[Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party *511can present them; and, if it be in -writing, it must be shown to the witness, with the opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith.]
(b) Exteinsie- evidence of prior inconsistent-statement of witness. — Extrinsic evidence of a prior inconsistent statement by-a-wltness-is^ot admissible unless the witness-is — afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate-the-witness-ther-eofo-or-iha interests ■■ - of — justice—otherwise—requfefe This provision does not apply to admissions of a party-opponent as defined in KRE 801A.
1992 Ky. Acts, ch. 324, § 16(1), (2).
The 1991 Court could also have amended proposed KRE 406 so as to codify our existing common law rule excluding evidence of habit or routine practice merely by changing one word, e.g.:
Evidence of habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant [inadmissible] to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
However, it chose not to do so.
Except for Rules 401 and 402, the rules of relevancy in Article IV of the Kentucky Rules of Evidence, if not rules of exclusion, are certainly rules of limitation, Huddleston v. United States, 485 U.S. 681, 687, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988), i.e., exceptions to the general rule of admissibility of relevant evidence enunciated in Rule 402. URE 406(a), however, is a rule of admissibility, not of exclusion or limitation, and its adoption as FRE 406 obviously was intended to emphasize that the previous common law rule of exclusion then being followed in some jurisdictions, e.g., Levin v. United States, supra, note 3, had been abrogated by the adoption of FRE 402. Proposed KRE 406 would have accomplished the same purpose. However, a decision not to adopt a rule specifically abrogating the common law does not equate to a decision to adopt a rule codifying the common law, especially where, as here, the common law rule was apparently abrogated by another adopted Rule, i.e., KRE 402. “[W]hen there is an adopted Rule of Evidence that speaks to the contested issue, the adopted Rule occupies the field and supersedes the former common law interpretation.” Garrett, supra, at 14, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993). However, where there is no adopted Rule, the issue either remains open for common law development, Stringer v. Commonwealth, Ky., 956 S.W.2d 883, 891-92 (1997), or is considered subsumed in the general rule of inclusion, i.e., Rule 402. United States v. Abel, 469 U.S. 45, 50-51, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984) (although no specific federal rule speaks to the inclusion of evidence of bias for impeachment purposes, such is admissible under FRE 402).
By simply refusing to approve proposed KRE 406, as opposed to amending it to codify the common law rule of exclusion, the 1991 Court may have recognized that KRE 406 was redundant in light of KRE 402; or, more likely, it may have intended to simply leave the door open for future common law development in this area of *512the law.11 If faced with the case sub judi-ce, a majority of the 1991 Court may well have decided it the same way that the plurality opinion, ante, now decides it — by reaffirming our antiquated common law precedents. However, Justice Leibson, a member of the 1991 Court, also famously wrote:
The common law is not a stagnant pool, but a moving stream. It seeks to purify itself as it flows through time. The common law is our responsibility; the child of the courts. We are responsible for its direction.
Hilen v. Hays, Ky., 673 S.W.2d 713, 717 (1984) (citations omitted).
If the majority of the members of this Court now believe that the time has come to reconsider the admissibility of habit evidence and depart from the fallacy of our old cases, the 1991 Court left the door open to do so. Professor Lawson queried whether the adoption of the Kentucky Rules of Evidence abrogated all common law evidentiary rules. See Robert G. Lawson, Interpretation of the Kentucky Rules of Evidence — What Happened to the Common Law?, 87 Ky. L.J. 517 (1998-99).12 If so, then this case is governed by KRE 402 and we should hold that habit evidence, if relevant and competent, is admissible. If not, and that obviously is the premise of the plurality opinion, ante, then this Court has the authority to change the direction of the common law by overruling those precedents that are inconsistent with modern (and virtually unanimous) legal thought. Cf. Stringer, supra, at 891-92 (discarding our prior common law rule ex-eluding “ultimate issue” testimony in favor of the modern majority rule).
VI. ADMISSIBILITY OF HABIT EVIDENCE IN THIS CASE.
Like any evidence, evidence of habit or routine practice is admissible only if relevant to a fact in issue. Compare Gregory v. State, 9 Ark.App. 242, 657 S.W.2d 570, 571 (1983) (in a trial for receiving stolen property, marijuana habit of witness who allegedly sold stolen property to defendant was not relevant to prove any issue in the case). Thus, whether Appellant smoked marijuana on the morning of the collision would not have been relevant to prove that he drove past the stop sign and into the intersection at Bloyds Crossing without slackening his speed. However, it was relevant to prove the element of a criminal mens rea of wantonness or recklessness, ie., to prove why he ran the stop sign and drove into the intersection without slackening his speed. The Commonwealth’s theory was that Appellant had smoked marijuana on the morning of December 12, 1997, and that his operation of a motor vehicle under the influence of the combined effects of marijuana, Valium, and Tylenol 3 amounted to wanton or reckless conduct. His admitted habit of smoking two marijuana cigarettes every day, one in the morning and another at night, was highly probative of that theory.
The instances of past conduct (“every morning”) were “numerous enough to base an inference of systematic conduct.” Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 511 (4th Cir.1977) (quotation omitted). And since the habit was identi-*513Red by occurrence, e.g., “every morning,” as opposed to circumstance, e.g., “when stripping tobacco,” there is no issue here with respect to similarity of circumstances or ratio of reactions to situations. Nor is there any issue here as to either competency or the knowledge of the person reporting the habit. The evidence was in the form of an admission by Appellant, himself, KRE 801A(b)(l), who was the person most knowledgeable of his own habits.
Even if relevant and competent, evidence of a habit or routine practice, like other relevant evidence, is subject to exclusion under KRE 403 if its probative value is substantially outweighed by the danger of undue prejudice.13 The trial judge concluded that the probative value of the evidence of Appellant’s alcohol habit was substantially outweighed by its prejudicial effect (because his blood tested negative for alcohol content) but that such was not the case with respect to the evidence of his marijuana habit (because his urine tested positive for marijuana and because of his prior conflicting statements with respect to whether he had or had not smoked marijuana on the day of the accident). I discern no abuse of discretion with respect to either of these KRE 403 rulings. English, supra, note 13, at 945.
Accordingly, I dissent and would affirm the judgment of the Green Circuit Court in all respects.
GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.
. In fact, the majority’s claimed adherence to the common law rule excluding habit evidence amounts only to lip service; for, also today, the majority has rendered Boggess v. Commonwealth, Ky., No.2001-SC-0263-MR (January 23, 2003), an opinion designated as “not to be published,” penned by the author of the plurality opinion in this case, holding that evidence that a deceased person had a "habit” of driving 45 to 55 miles per hour was not only admissible but so reliable that it could be "reasonably relied upon by experts,” KRE 703(a), in forming their expert opinions.
. See note 5, infra, for a list of jurisdictions that have adopted a version of URE 406.
. One authority notes that “one could reasonably testify to having observed habitual behavior, but character is almost always a matter of opinion.” Charles A. Wright & Kenneth W. Graham, Jr., 22 Federal Practice and Procedure § 5233, at 354 (West 1978).
. But see Levin v. United States, 338 F.2d 265 (D.C.Cir.1964), a case decided before the adoption of the federal rules.
. Alabama: Ala.R.Evid. 406;
Alaska: Alaska.R.Evid. 406;
Arizona: Ariz.R.Evid. 406;
Arkansas: Ark.R.Evid. 406;
California: Cal. Evid.Code § 1105;
Colorado: Colo.R.Evid. 406;
Connecticut: Conn.Code of Evid. § 4-6;
Delaware: Del.R.Evid. 406;
Hawaii: Haw.R.Evid. 406;
Idaho: Idaho.R.Evid. 406;
Indiana: Ind.R.Evid. 406;
Iowa: Iowa Code Ann. Rule 5.406;
Kansas: Kan. Stat. Ann. § 60-449;
Louisiana: La.Code Evid. Ann., Art. 406;
Maine: Me.R.Evid. 406;
Maryland: Md. R. Proc. 5-406;
Michigan: Mich.R.Evid. 406;
Minnesota: 50 Minn.Stat. Ann., R.Evid. 406;
Mississippi: Miss.R.Evid. 406;
Montana: Mont.R.Evid. 406;
Nebraska: Neb.Rev.Stat. § 27-406;
Nevada: Nev.Rev.Stat. § 48.059;
New Hampshire: N.H.R.Evid. 406;
New Jersey: N J.R.Evid. 406;
New Mexico: N.M.R.Evid. 11-406;
North Carolina: N.C.R.Evid. 406;
North Dakota: N.D.R.Evid. 406;
Ohio: Ohio.R.Evid. 406;
Oklahoma: 12 Okla. Stat. Ann. § 2406;
Oregon: Or. Evid.Code, Rule 406;
Pennsylvania: Pa.R.Evid. 406;
Rhode Island: R.I.R.Ev. 406;
South Carolina: S.C.R.Evid. 406;
South Dakota: S.D. R.Evid. § 19-12-8 (Rule 406);
Tennessee: Tenn.R.Evid. 406;
Texas: Tex.R.Evid. 406;
Utah: Utah.R.Evid. 406;
Vermont: Vt.R.Evid. 406;
Virginia: Va.CodeAnn. § 8.01-397.1;
Washington: Wash.R.Ev., ER 406;
West Virginia: W.Va.R.Evid. 406;
Wisconsin: Wis. Stat. Ann. § 904.06;
Wyoming: Wyo.R.Evid. 406.
. URE 406(a) permits evidence of habit to prove conduct “whether corroborated or not.” Florida has adopted the “routine practice” provision, but not the "habit” provision, of URE 406(a). Fla. Stat. § 90.406. A leading authority on Florida evidence law has opined that prior cases allowing admission of evidence of the habit of an individual, if corroborated by other evidence of the occurrence of the conforming conduct, were not "displaced” by the adoption of the statutory provision and are "still good law.” Charles W. Erhardt, Florida Evidence § 406.1, at 158 (2d ed.1984).
. URE 406(a) permits evidence of habit “regardless of the presence of eyewitnesses.” Note that other than Appellant, there were no surviving eyewitnesses to the fatal collision in this case.
. The plurality opinion, ante, incorrectly cites the more recent case of Johnson v. Commonwealth, Ky., 885 S.W.2d 951 (1994), as approving the exclusion of habit evidence. Op., at 504. Johnson merely states (correctly but not approvingly) that "Kentucky’s high court has consistently ruled against the admission of habit evidence.” Id. at 953. The issue in Johnson was not whether evidence of a habit of an individual was admissible to prove the same individual’s conduct on another occasion but whether evidence of a habit of a class of persons, i.e., coal truck drivers, was admissible as circumstantial evidence of the conduct of another coal truck driver on another occasion — and Johnson correctly held that it was not. Id.; see also Miller v. Commonwealth, Ky., 77 S.W.3d 566, 572 (2002).
. It was also stated in Jones v. Commonwealth, 303 Ky. 666, 198 S.W.2d 969 (1947), that ”[i]t is not competent to prove a habit or pre-disposition to commit the particular crime or to show that the accused is a criminal generally.” Id. at 970. However, as in Mascio, supra, the evidence at issue in Jones was clearly that which today is the subject of KRE 404(b), i.e., evidence in a trial for uttering a forged check that the defendant had, on three prior occasions, uttered other forged checks with different payors and payees at different places and different times — evidence arguably admissible to prove intent under *509KRE 404(b)(1), but insufficient to establish a habit for the purpose of proving conforming conduct.
. Pursuant to 1992 Ky. Acts, ch. 324, § 34, the amended version of KRS Chapter 422A was renumbered and transferred to the Kentucky Rules of Evidence (KRE). See Compiler’s Notes to KRS Chapter 422A.
. See Erhardt, supra, note 6, opining that Florida's enactment of a statute adopting the “routine practice” provision, but not the "habit” provision, of URE 406(1), did not affect Florida’s common law rule admitting evidence of habit if corroborated by other evidence.
. Professor Cleary, the Reporter for the FRE Advisory Committee, wrote that "under the Federal Rules, no common law of evidence remains.” Edward W. Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L.Rev. 908, 915 (1978).
. The plurality opinion, ante, seems to assert that all evidence of habit or routine practice is automatically excluded under KRE 403. That assertion turns KRE 403 on its head; for the premise of the rule is that evidence that is otherwise relevant and admissible can be excluded if the trial judge, in his/her discretion, determines that it should be excluded because its prejudicial effect substantially outweighs its probative value. Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999). Here, the majority of the Court holds that evidence of habit or routine practice is always inadmissible, thus, KRE 403 does not come into play.