Com. v. Long

• Decision Date: 25 July 2003
• Docket Number: No. 2002-CA-001896-DG.,2002-CA-001896-DG.
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Jennifer LONG, Appellee.
• Court: Kentucky Court of Appeals

118 S.W.3d 178

COMMONWEALTH of Kentucky, Appellant, v. Jennifer LONG, Appellee.

No. 2002-CA-001896-DG.

Court of Appeals of Kentucky.

July 25, 2003.

Case Ordered Published by Court of Appeals October 3, 2003.

Jack K. Giles, Lexington, KY, for appellant.

Russell J. Baldani, Baldani, Rowland & Richardson, Lexington, KY, for appellee.

Before EMBERTON, Chief Judge; McANULTY, Judge; and MILLER, Senior Judge.¹

McANULTY, Judge.

The Commonwealth appeals the Circuit Court's order dismissing this driving under the influence case based on a denial of Jennifer Long's (Long) right to an independent blood test under Kentucky Revised Statutes (KRS) 189A.103(7). This matter originated in Fayette District Court, was appealed by Long to Fayette Circuit Court, and is now before us upon our grant of discretionary review. After our review of the statute, we conclude that the district court erred in applying the provisions of KRS 189A.103 to Long. Thus, we affirm the circuit court's dismissal.

On October 19, 2001, at about 1:45 a.m., Detective Richmond of the Lexington Police Department observed the vehicle driven by Long bump into a parked car in a gas station parking lot. Long then continued driving out of the parking lot and down the street. Subsequently, Detective Richmond stopped Long. Soon after the stop, Officer Joe Anderson arrived on the scene and conducted a number of field sobriety tests with Long. After Long demonstrated considerable difficulty in taking the field sobriety tests, Officer Anderson arrested her for first offense driving under the influence (DUI), and transported her to the Fayette County Detention Center, where she produced an intoxilyzer result of .094.

Long made a motion to suppress the intoxilyzer results on the basis that she had not been afforded her statutory right to an independent blood test. The district court held a hearing on the issue at which Officer Anderson, Long and Long's roommate, Jessie Hill, testified.

When asked about any conversation that Officer Anderson had with Long regarding her desire for an independent blood test, Officer Anderson could not recall anything other than Long signed a card stating she did not wish to take a blood test. Officer Anderson further testified that he would not let a DUI arrestee make a phone call to arrange for funds to pay for an independent blood test. Moreover, Central Baptist is the hospital that the police use when they are requesting a blood test, but Officer Anderson allows any DUI arrestee to choose the location for an independent blood test.

Long testified that she was a phlebotomist at Saint Joseph's Hospital in Lexington, Kentucky. Further, she believed that a blood test was more accurate than an intoxilyzer test, and she informed Officer Anderson that she wished to have an independent blood test. According to Long, Officer Anderson informed her that the cost would be $150.00, that she needed to have the funds on her, and that the test would be conducted at Central Baptist Hospital in Lexington, Kentucky.

Long testified that she had enough cash to cover the cost of the test in her purse; however, when Officer Anderson arrested her, he told her to grab her coat. There was no discussion about her purse, and Long left it in her car, which her roommate, Jessie Hill, drove home after Officer Anderson took Long into custody. Long testified that she asked Officer Anderson if she could call Hill to bring the money to the hospital. Officer Anderson denied her request to telephone Hill. In addition, Long testified that Officer Anderson informed her that the results of the blood test would probably be higher than the intoxilyzer, so it would be to her benefit not to take it. Finally, as a result of their conversation, Long testified that she believed Central Baptist was the only hospital where she could have the test done. As an employee of Saint Joseph hospital, Long testified that she could have had the test done there without having to pay in advance.

Hill's testimony confirmed that Long had sufficient funds in her purse to pay for the test, and that Hill took the purse with her when she returned to their apartment in Long's car.

The district court denied Long's motion to suppress. Thereafter, Long entered a conditional guilty plea and appealed to the circuit court. On appeal, the circuit court reversed the district court and dismissed Long's case with prejudice, precipitating this appeal.

The sole issue on appeal is: in declining to allow Long the opportunity to telephonically contact a friend to bring monies to pay for an independent blood test, did the arresting officer deny Long of her right to proceed under KRS 189A.103?

As the proper interpretation of KRS 189A.103 is purely a legal issue, our review is de novo. Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 925 (1997); Keeton v. City of Ashland, Ky.App., 883 S.W.2d 894, 896 (1994). On review, it is our duty to construe the statute "so as to effectuate the plain meaning and unambiguous intent expressed in the law." Bob Hook Chevrolet Isuzu v. Transportation Cabinet, Ky., 983 S.W.2d 488, 492 (1998). Moreover, we understand that the judiciary is "not at liberty to add or subtract from the legislative enactment ..." or to attempt to cure any omissions. Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 546 (2000); Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997).

Long entered a conditional guilty plea to the offense of driving under the influence, the elements of which are defined in KRS 189A.010(1)(a) and (b). Specifically, under the statute, "[a] person shall not operate or be in physical control of a motor vehicle anywhere in this state ... [h]aving an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle ... [w]hile under the influence of alcohol[.]"

Under our statutory scheme however, an individual arrested for driving under the influence who has submitted to the initial test administered by the state is allowed an independent test "to obtain another result to compare with or controvert the police officer's test." Commonwealth v. Minix, Ky., 3 S.W.3d 721, 724 (1999); see KRS 189A.103(7). KRS 189A.103(7) is as follows:

After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time. Provided, however, the nonavailability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.

Not only must a person be afforded the right to an independent blood test, but they must also be informed of this right under KRS 189A.105 as well as some other rights that attach upon the individual's submission to a breath, blood or urine test. In pertinent part, KRS 189A.105 is as follows:

(2) (a) At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and

2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.18 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.18; and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.

....

(3) During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified...