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RENDERED: August 16, 2002; 10:00 a.m.

ORDERED PUBLISHED BY KENTUCKY SUPREME COURT:
MARCH 12, 2003
(2002-SC-0724-D)

Commonwealth of Kentucky

Court of Appeals
NO. 2001-CA-001096-DG

COMMONWEALTH OF KENTUCKY APPELLANT

ON DISCRETIONARY REVIEW FROM MARION CIRCUIT COURT

v. HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 00-XX-00014

JOSEPH COREY MATTINGLY APPELLEE

OPINION
AFFIRMING AND REMANDING

** ** ** ** **
BEFORE: COMBS, DYCHE, AND KNOPF, JUDGES.
KNOPF, JUDGE: The Commonwealth brings this matter on
discretionary review from an opinion and order of the Marion
Circuit Court which set aside a conditional guilty plea entered
by Joseph Corey Mattingly to the charge of driving under the

influence (DUI), first offense.1 The Commonwealth asserts that

when it elects to prosecute a DUI charge under KRS 189A.010(1)(a), a defendant may not present any evidence attempting to prove that he or she was not under the influence of alcohol. Rather, the Commonwealth contends that the defendant=s blood-or breath-alcohol concentration is the primary relevant factor in such a prosecution. We agree with the circuit court, however, that Mattingly was entitled to present any evidence which tended to impugn the results of the breath

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