## Facts

- George H. Burchett, Jr. drove through an intersection without stopping and collided with another vehicle, killing the other driver.
- The deceased had the right of way; skid marks indicated Burchett braked but entered the intersection.
- Burchett was traveling to a hospital after learning his girlfriend had given birth the day before.
- A trooper found an unopened half-gallon bottle of vodka in Burchett’s vehicle; Burchett denied drinking that day.
- At the hospital, Burchett told medical staff he drank large quantities of vodka daily and smoked marijuana daily (one joint in the morning and one at night).
- Burchett gave inconsistent statements about marijuana use on the day of the crash (denying use to a nurse but later indicating morning use to a lab technician; physician notes supported the latter account).
- Testing showed no alcohol in Burchett’s blood; urine testing was positive for THC and other drugs, and the blood sample was insufficient for drug testing.
- Before trial, Burchett sought to exclude evidence of his daily alcohol and marijuana use; he did not object to evidence of marijuana use the day before the collision.
- The trial court admitted evidence of Burchett’s daily marijuana use, and the prosecution used it to support an inference that he used marijuana the day of the collision and was impaired.

## Issues

1. Whether evidence that a defendant smoked marijuana on a daily basis is admissible to prove that he smoked marijuana on the day of a fatal collision.

## Decision

- The Kentucky Supreme Court reversed the Court of Appeals and reversed Burchett’s conviction.
- The court held that evidence of Burchett’s daily marijuana use was inadmissible as circumstantial proof that he used marijuana on the day of the collision.
- The case was remanded for a new trial.

## Legal Principles

- Kentucky does not admit individual habit evidence to prove conduct on a particular occasion; the omission of a Rule 406 analogue reflects a policy choice to continue excluding such evidence.
- Evidence offered to show action in conformity on a particular occasion is generally barred as character evidence under KRE 404(a), even if framed as “habit,” where it functions as proof of disposition.
- Under KRE 403, even marginal probative value may be substantially outweighed by unfair prejudice and the risk of confusing the issues by shifting the trial toward a defendant’s general lifestyle rather than the charged conduct.
- In a criminal case, evidence of routine drug use carries a significant risk that jurors will punish the defendant for being a drug user rather than deciding whether impairment or recklessness was proved for the incident at issue.

## Conclusion

The court ordered a new trial because the prosecution improperly used evidence of Burchett’s daily marijuana use to argue he used marijuana on the day of the collision, a use Kentucky law treats as inadmissible character-based proof and as unfairly prejudicial under KRE 403.


Burchett v. Commonwealth, 98 S.W.3d 492 (Ky. 2003)