NOT TO BE PUBLISHED

OPINION

NICKELL, Judge.

Bradley Riffe challenges a Fayette Circuit Court order affirming the Fayette District Court's suspension of his operator's license for thirty-six months upon finding he had refused to submit to a requested breath test after being stopped for speeding and was ultimately charged with driving under the influence of alcohol or drugs, third offense (DUI).1 The question presented on appeal is one of timing—when, if at all, in the wake of an acquittal for DUI, must the Commonwealth move for license suspension and when must the court hold the refusal hearing—two items mentioned in KRS 189A.107(2). Stated otherwise, when does the district court lose jurisdiction2 over the case. Having granted Riffe's motion for discretionary review, we affirm.

FACTS

The facts underlying this appeal are undisputed. Riffe was stopped in Fayette County after being clocked at a speed of 93 miles per hour in a 70 mile per hour zone. Upon failing field sobriety tests, he was arrested for speeding and taken to a detention center where he contacted an attorney who advised him to refuse a requested Intoxilyzer test. Based on the attorney's advice, Riffe declined the test.

Riffe was ultimately charged with speeding 23 miles over the limit;3 having no or expired registration plates;4 failure of owner to maintain required insurance, first offense;5 excessive window tinting;6 and DUI, third offense. At arraignment on September 3, 2013, pretrial suspension of his license was ordered in conformity with KRS 189A.200(1)(a).

The matter was tried by a jury on October 16, 2013. Sergeant Roy Wilson, the arresting officer, testified he read the implied consent law warning to Riffe at the detention center, Riffe refused any kind of testing, Riffe signed the Intoxilyzer form confirming he refused to submit to testing, and Riffe was booked into the detention center. Testifying in his own behalf, Riffe admitted refusing to submit to the breath test upon Sgt. Wilson's request. Jurors convicted Riffe of speeding, but acquitted him of DUI. Riffe then pled guilty to having no/expired plates and no insurance. The excessive window tinting charge was merged into the other charges.

When trial was over, and the jurors dismissed, defense counsel asked the Commonwealth to move—or the district court on its own—to vacate or revoke the pretrial license suspension. The district court denied the motion, noting there is a statutory penalty for refusing a breath test. After discussion, the trial court left the suspension in place—stating a person may refuse the test, but there is a consequence for that refusal—and agreed to consider legal research provided by either party. At that point, it appeared the only question unresolved was the length of the suspension. Defense counsel argued imposing a penalty for a refusal was discretionary with the court, not mandatory.

On November 4, 2013—nineteen days after trial had concluded and Riffe had been acquitted of DUI, third offense—the Commonwealth moved for a license suspension hearing under KRS 189A.107(2), noticing the matter to be heard on November 12, 2013. When the matter was called, without defense objection—to jurisdiction or anything else—defense counsel asked for a continuance until December 4, 2013, so Riffe, who was out of state on business, could attend and participate.

When the suspension hearing commenced in December, the Commonwealth stated the license of one charged with DUI, third offense, who is alleged to have refused a breath test, may be suspended for a period of twenty-four to thirty-six months,7 and asked the court to order the maximum period of suspension. Riffe stipulated he had previously received two DUI convictions within a five-year period as evidenced by two certified copies offered by the Commonwealth.8 At no time did Riffe dispute the refusal nor that he had twice been convicted of DUI in the last five years. Instead, defense counsel explained Riffe refused to submit a breath sample on counsel's advice, and, the courts and the Commonwealth inconsistently apply the law in DUI cases. Defense counsel then asked that Riffe's license be suspended for the shortest period of time. The Commonwealth responded that Riffe's reason for refusing the test was irrelevant, and by seeking the maximum penalty, the Commonwealth was being entirely consistent in its approach to such cases. Thereafter, the district court stated this was no longer a DUI case, rather it was now a refusal case, and Riffe's refusal had been clearly and convincingly proved during the October trial. The district court then queried, if not drunk, why would a person refuse a test, noting that about ninety percent of DUI charges in Fayette County result in acquittals when there is no test result for jurors to consider.

The court then inquired about Riffe's driving history, to which defense counsel responded Riffe had an issue with "points." Stating it is rare for the Commonwealth to prosecute a refusal in the wake of an acquittal on a DUI charge, the court spent the next seven minutes reading aloud Riffe's extensive driving record—including prior DUI's and numerous convictions for extreme speeding—concluding Riffe appeared to have more than an issue with points. The trial court then said directly to Riffe, "You scare me being out on the roads." Thereafter he sustained the Commonwealth's motion to suspend Riffe's license for the maximum thirty-six months due to the refusal.

Without objecting to the district court's jurisdiction, or claiming the Commonwealth had moved for license suspension in an untimely manner, Riffe appealed to the Fayette Circuit Court arguing three issues. First, when a defendant refuses a breath test and is subsequently acquitted of DUI, for the trial court to exercise jurisdiction, a motion for license suspension must be made simultaneously9 with return of the not guilty verdict and resolved when the case is concluded (either by final sentencing or acquittal). Second, if KRS 189A.107 does not specify the time in which a motion for license suspension must be filed, it must be filed within ten days. And third, by seeking the maximum suspension period, the Commonwealth was retaliating against Riffe for demanding (and winning) the jury trial.

After oral argument, the circuit court affirmed the district court's thirty-six month suspension finding at the conclusion of trial, the district court denied defense counsel's oral motion to lift the suspension based on trial testimony it had just heard from both Riffe and Sgt. Wilson that a refusal had occurred. Further, the Commonwealth did not have to move for license suspension at the end of trial under KRS 189A.107(2) because the district court had previously suspended Riffe's license at arraignment consistent with KRS 189A.200. Additionally, the ten-day post-judgment jurisdiction period was inapplicable because the district court had already found Riffe had refused the test—the only remaining question being the length of the suspension—a matter requiring outside research since neither attorney had immediate access to law books. Finally, the record did not support a claim of prosecutorial retaliation. It is against this backdrop that we consider the issues raised on appeal and affirm.

ANALYSIS

We begin with a comment about the importance of preserving errors for appellate review. While defects in subject matter jurisdiction may be raised at any time, Steadman, 411 S.W.3d at 719—whether or not preserved—the better practice is to alert the trial court to concerns and allow it to make rulings so a reviewing court has as much information as possible in the event of appeal. That did not happen in this case. Lack of jurisdiction and timeliness were never raised in the district court. Thus, we are deprived of the trial court's and trial counsel's insight on those issues.

Furthermore, Riffe has not alleged district courts lack authority to suspend a license in the wake of an acquittal on a charge of DUI. He argues only that too much time passed between his acquittal on DUI and the license suspension for this district court to exercise jurisdiction, making this at most an alleged defect in particular-case jurisdiction, which is waivable. Id. at 724. By allowing the refusal hearing to go forward nineteen days after entry of the acquittal, and fully participating therein without any reservation or objection, we conclude Riffe waived particular-case jurisdiction. Id. at 725-26. As a result, the issue should not have been considered by the circuit court because "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). Nevertheless, the issue was addressed.

The charges in this case were resolved in a one-day jury trial as evidenced by an order entered that same day. At trial, Sgt. Wilson testified Riffe refused a requested breath test. Riffe echoed that testimony when he took the stand in his own defense. When the proof closed, jurors convicted Riffe of speeding, but acquitted him of DUI. After the jury was dismissed, defense counsel orally asked that the pretrial license suspension be lifted—a motion denied by the district court because of the refusal established earlier that day. Thus, when Riffe left the courthouse on October 16, 2013, he knew his license was suspended and would remain so—he just did not know how long the suspension would last.

Riffe has formulated this appeal as a matter of timing, asking us to determine when a district court loses jurisdiction over a refusal case when the accused is acquitted of the DUI charge associated with the refusal. However, because of the sequence of events in this case, the question of timing posed by Riffe is not properly before us.

Under KRS 189A.107(2), when a defendant charged with DUI and alleged to have refused an alcohol concentration or substance test is acquitted, the Commonwealth may move for a hearing—without a jury—at which the court will determine whether a refusal occurred. But no hearing—and therefore, no motion by the Commonwealth for a hearing—is necessary if the court has already found a refusal occurred during a hearing under KRS 189A.20010 and 189A.220.11 Upon finding a refusal by clear and convincing evidence,

KRS 189A.107(2). For a DUI, third offense, the maximum penalty is thirty-six months.

In this case, moments after the jury had been dismissed, defense counsel asked that the pretrial suspension be lifted. The trial court addressed the request immediately. During the trial that had just ended, Riffe had admitted refusing to submit to testing. Additionally, Sgt. Wilson had testified: he arrested Riffe and charged him with DUI; he had reasonable grounds to believe Riffe had violated KRS 189A.010(1); he gave Riffe the implied consent warning; he asked Riffe to take the test; and, Riffe refused the test. Based upon that evidence, the trial court found a refusal had occurred and determined Riffe's license would be suspended as a consequence of that refusal. This sequence of events satisfied all the elements necessary for judicial review of a pretrial license suspension for test refusal as set forth in KRS 189A.220. Thus, while Riffe argues the trial court had lost jurisdiction of his case because the Commonwealth did not timely seek review of the pretrial suspension, due to Riffe's own request, that review occurred within minutes of the jury's verdict being announced, obviating the need for the Commonwealth to make a formal motion. Throughout the discussion, neither the court nor counsel was confident of the procedure to follow or the applicable length of a suspension. As a result, several times the court urged both parties to research the procedure for handling a post-acquittal license suspension and advise the court.

Riffe filed no research with the court. On November 4, 2013, the Commonwealth filed a formal motion for a license suspension hearing which occurred on December 4, 2013. At that hearing, the Commonwealth stated the court had previously found a refusal had occurred based on trial testimony. Riffe then stipulated being twice convicted of DUI in a five year period, and never objected to lack of jurisdiction or claimed the Commonwealth had filed an untimely motion. Defense counsel's argument was geared exclusively toward securing the shortest suspension period for his client, not convincing the court it lacked authority to suspend Riffe's license at all.

Riffe equates his refusal of any kind of test with his acquittal of DUI —a comparison of apples to oranges. While refusal of the test was related to Riffe being charged with DUI, it was completely separate from his DUI acquittal; a refusal is an entirely different animal carrying its own penalty. Therefore, cases holding "a trial court loses jurisdiction of a case ten days after entry of a final order or judgment," Steadman, 411 SW.3d at 721 (emphasis in original; internal citations omitted), have no bearing on this case.

The order entered on October 16, 2013, resolved the substantive charges only and did not even mention the refusal. The order reflected the jury's verdict, but jurors had no say in the refusal—that matter was decided solely by the trial court outside the jury's presence as required by KRS 189A.107(2). Therefore, no final judgment on the refusal had been entered from which to begin counting ten days or any other period of time.

Additionally, Riffe erroneously reads KRS 189A.107(2) to say,

(App. Brief p. 9). No matter how many times we read KRS 189A.107(2), we find no mention of timing whatsoever, and certainly no requirement that the Commonwealth must move for a refusal hearing simultaneously with the return of a jury's acquittal. Despite Riffe's argument, we cannot simply insert a timeframe into the statute the General Assembly did not adopt. We must interpret statutes based upon the words used in the statute, not by reading words into it that are not there, or by guessing what might have been said but was not. Bohannon v. City of Louisville, 193 Ky. 276, 235 S.W. 750, 752 (1921). KRS 189A.107(2) specifies neither a time in which the Commonwealth must move for license suspension, nor when the court must hold the refusal hearing.

Riffe having asked for review of the license suspension, the district court had jurisdiction to review it and leave it in place after Riffe was acquitted. Length of the suspension was finally determined, without objection, after both parties had an opportunity to research the issue. Hence, we affirm.

ALL CONCUR.