dissenting.
I respectfully dissent from that part of the majority opinion which vacates the conviction of driving under the influence, second offense. I would affirm the judgment of conviction in all respects. I also disagree with the rationale used to arrive at the affirmance because it does’ not fully state the facts or the law.
Tragically, the majority has irrevocably altered the law of Kentucky concerning double jeopardy by confusing the legal concepts underlying the two differenct terms, subsequent prosecution and multiple punishment.
Double jeopardy is a simple term understood by lawyers and lay people alike. The Kentucky Constitution § 13, in pertinent part, clearly and simply provides that “No *110person shall, for the same offense, be twice put in jeopardy.” (Emphasis added.)
Kentucky has long held that there can be different parts of a criminal transaction which are separate offenses and may be separately prosecuted. The rule that a single criminal activity cannot be split into separate offenses is not necessarily applicable if different parts of a continuous criminal transaction or series of acts are separate offenses and can be separately proved. Newton v. Commonwealth, 198 Ky. 707, 249 S.W. 1017 (1923). The inherent value of the double jeopardy principle has been extended and elongated and its real meaning has been lost.
The factual analysis of the majority is flawed and insufficient. Walden was charged in connection with an automobile collison which resulted in the death of the other driver. He had previously been convicted of driving under the influence within five years of this incident. The collison occurred at 9:15 a.m. on Saturday; Walden was driving approximately 70 miles per hour in a 35 mile per hour zone. His blood alcohol was .297 percent. He was further impaired in the operation of the vehicle because he had a cast on his leg, and he knew that his vehicle was defective to the extent that it pulled to the right when braking. Walden admitted to having 5 or 6 beers on the night before the accident and one more at a friend’s home and stated that he called his wife and told her he was intoxicated and would not drive home. I find hard to believe, as did the jury, Walden’s version of his behavior the night before the accident. The majority does detail the drinking habits of Walden but claims that the prosecution was required to elect to prosecute on either murder or DUI. The majority cites no convincing applicable authority.
This case is very similar to Hamilton v. Commonwealth, Ky., 560 S.W.2d 539 (1978). The 1984 amendment to K.R.S. 507.020(1)(b) reinforced this Court’s decision in Hamilton, supra, regarding wanton murder by inserting “including, but not limited to, the operation of a motor vehicle.” The question of extreme indifference to human life to distinguish wanton murder from second-degree manslaughter is primarily a question of fact for the jury. Nichols v. Commonwealth, Ky., 657 S.W.2d 932 (1983). The evidence in this case was sufficient to prove the necessary factors indicating extreme indifference to human life.
Instead of accepting the clear mandate of Hamilton, the majority seeks refuge in a dissenting opinion. Building on such a shallow foundation, the majority presumes to unilaterally declare and determine the legislative intent by judicial interpretation without reference to any legislative history. The effect of the twisted language and tortured logic of the majority is to seriously weaken the so-called “Slammer Bill” directed at punishing drunken driving. The legislature and the people understand that the purpose of the statute is to reduce or prevent the national and state tragedy of drunk driving. The reasoning of the limited affirmance permitted by the majority is shrewedly framed to support the view which vacates the DUI conviction.
The most serious error in the majority opinion arises in regard to the double jeopardy issue.
The trial judge did not violate the double jeopardy protection afforded to Walden by permitting a conviction of both wanton murder and of operating a motor vehicle under the influence of an intoxicant. Homicide and DUI are not the same offense so as to be barred by double jeopardy. See, Keller v. Commonwealth, Ky. App., 719 S.W.2d 5 (1986); Commonwealth v. Barnhill, Ky.App., 552 S.W.2d 241 (1977).
Contrary to the majority statement, the facts of Grady v. Corbin, 495 U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) are not at all similar to this case. Here Walden was found guilty of wanton murder and operating a motor vehicle while under the influence of alcohol (second offense) in violation of K.R.S. 507.020(1)(b) and K.R.S. 189A.010, respectively. In Grady, supra, the defendant was charged with a misdemeanor of driving while intoxicated and also charged with failing to keep to the *111right of the median. Corbin’s automobile struck an oncoming vehicle on a New York highway causing the death of one person and injury to another. He was served with two uniform traffic tickets directing him to appear in a local court. Corbin pled guilty to the traffic tickets and the presiding judge was not informed of the fatality or a pending homicide investigation. Subsequently, a grand jury indicted Corbin charging him with, among other things, reckless manslaughter, criminally negligent homicide and third-degree reckless assault. Corbin moved to dismiss the indictment on constitutional double jeopardy grounds which was denied by the local court; he then sought a writ of prohibition barring prosecution which was also denied by the appellate division. However, the state Court of Appeals of New York, the New York court of last resort, reversed finding that the state’s intention to rely on prior traffic offenses as acts necessary to prove the homicide and assault charge violated the U.S. Supreme Court’s dicta in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) suggesting if two successive prosecutions were not barred by the test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 3067 (1932) the second prosecution would be prevented if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution.
A seriously divided U.S. Supreme Court in one of the last opinions written by Justice Brennan held that the double jeopardy clause bars a subsequent prosecution if to establish an essential element of an offense charged in that prosecution, the government will prove conduct which constitutes an offense for which the defendant had already been prosecuted. The U.S. Supreme Court adopted the dicta of Vitale, supra.
The U.S. Supreme Court states in part that the double jeopardy clause of the federal constitution protects against a second prosecution for the same offense after acquittal and against a second prosecution for the same offense after conviction and also protects against multiple punishments for the same offense. It admits that Blockburger, supra, was developed in the context of multiple punishments imposed in a single prosecution.
In Grady, the defendant quickly pled guilty to the misdemeanor charge and then skillfully interposed the defense of double jeopardy to a subsequent but more serious charge of manslaughter and negligent homicide. When the defendant pled guilty to the traffic tickets, no member of the district attorney’s office was present in court and the presiding judge was totally unaware of the fatality involved in the accident. He was never asked and did not voluntarily incriminate himself by providing such information. Two months later, the matter was presented to the grand jury and the defendant was charged with the more serious crimes.
Justice Brennan laments the unfortunate lapse of an orderly prosecutorial procedure caused in part by the enormous increase in workload and often understaffed prosecutors’ offices. He concludes that this may explain the situation but does not excuse it. He further observes that drunk driving is a national tragedy but that does not excuse the need for scrupulous adherence to constitutional principles. Certainly such an announcement is looked upon with favor by any reasonable person. The most interesting statement by Justice Brennan writing for the majority is as follows, — U.S. at -, 110 S.Ct. at 2094, 109 L.Ed.2d at 566:
With adequate preparation and foresight, the state could have prosecuted Corbin for the offenses charged in the traffic tickets and the subsequent indictment in a single proceeding, thereby avoiding this double jeopardy question. (Emphasis added.)
In this Kentucky case the prosecutor did exactly what was suggested by the United States Supreme Court and combined both the murder and the DUI charges in a single proceeding. The majority opinion conveniently ignores the explanatory statement of Grady.
*112Let us now return to an analysis of whether Kentucky law and the Kentucky Constitution prevent the type of prosecution that was undertaken in this case. '
First it must be observed that the double jeopardy clause of the United States Constitution was made applicable to the states by the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
As I stated in my dissent in Ingram v. Commonwealth, rendered December 27, 1990, the test for determining whether one act can be two charges is found in Block-burger, supra. This standard was developed in the context of multiple punishments imposed in a single prosecution. It has been used for almost 60 years in considering federal as well as state criminal matters. Many crimes have a universal and generic background which is common to all states. The mere fact that the statutory language prohibiting certain conduct designated as criminal may vary from state to state does not change the underlying criminal offense. The rationale of Block-burger, supra, and the cases following it are persuasive to any logical person who considers the impact of the crime on the victim as well as the accused.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, provides in part:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
Interestingly enough, the majority in Ingram said that the U.S. Supreme Court has not supplemented the Blockburger standard when the issue is multiple punishment imposed in a single trial. The Ingram majority also asserted that the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
Kentucky has long followed the same reasoning as set forth in Blockburger and subsequent federal cases. See Wilson v. Commonwealth, Ky., 695 S.W.2d 854 (1985); Polk v. Commonwealth, Ky., 679 S.W.2d 231 (1984). Wilson, supra, states that the test focuses on the proof necessary to prove the statutory elements of each offense and that we must determine the minimum facts necessary to establish a completed offense under each statute and determine if an additional fact must be proved for each completed offense.
The revered Wharton treatise on criminal law indicates that the fifth amendment to the federal constitution has many state constitutional provisions which are comparable and clearly states that the notion of former jeopardy has its basis on the philosophy that “no person shall be subject for the same offense to be twice put in jeopardy.” § Wharton’s Criminal Law {14th ed. Vol. 1, p. 274). Wharton further expresses the view that the federal provision is applicable and binding on the states through the Fourteenth Amendment. The underlying idea of the protection from double jeopardy is a restraint on courts and prosecutors. “The legislature remains free ... to define crimes and fix punishments; but once the legislature has acted, courts may not impose more than one punishment for the same offense, and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.” § 54, p. 276 of Wharton’s.
It is a fundamental and universal principle of criminal law that no person is to be placed in jeopardy twice for the same offense. The rule that a single act or criminal transaction cannot be split into separate offenses, does not apply where a single criminal act is common to two offenses but each contains additional elements not common to the other. To hold otherwise, gives the criminal a disincentive to discontinue his criminal activity when that is possible.
I would affirm the conviction and sentences in all respects.
GANT, J., joins in this dissent.