Com. v. Minix

• Decision Date: 23 September 1999
• Docket Number: No. 98-SC-0778-DG.,98-SC-0778-DG.
• Citation: 3 S.W.3d 721
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Jerry S. MINIX, Appellee.
• Court: United States State Supreme Court — District of Kentucky

3 S.W.3d 721

COMMONWEALTH of Kentucky, Appellant, v. Jerry S. MINIX, Appellee.

No. 98-SC-0778-DG.

Supreme Court of Kentucky.

September 23, 1999.

Discretionary Review Granted by Supreme February 10, 1999.

A.B. Chandler, III, Attorney General, Frankfort, J. Scott Preston, J. Kevin Holbrook, Preston & Holbrook, Paintsville, for Appellant.

John C. Collins, Collins & Allen, Salyersville, for Appellee.

GRAVES, Justice.

In May 1996, a Paintsville City Police Officer stopped Appellee, Jerry Minix, for running a stop sign. The officer suspected that Minix was under the influence of alcohol and requested that he perform several field sobriety tests. In addition, the officer made two attempts to administer a preliminary breath test (PBT); however the instrument failed both times. Based upon the officer's observation of Minix's performance of the sobriety tests, the obvious odor of alcohol, and Minix's erratic driving behavior, Minix was arrested for driving under the influence (DUI) and taken to the Johnson County Detention Center. After arriving at the center, Minix refused three times to submit to a breath test using the Intoxilizer 5000 machine. Instead, Minix requested that he be taken to the local hospital for a blood test. Since he had declined to take the breath test, the officer refused to transport Minix to the hospital.

Minix was subsequently charged with DUI second offense, disregarding a stop sign, and disorderly conduct. Minix pled guilty to the disregarding a stop sign and disorderly conduct charges, but moved the Johnson District Court to suppress all evidence of his intoxication because of the officer's refusal to honor his request for a blood test. Minix also moved to dismiss the DUI charge on the grounds that there was insufficient evidence of his guilt. The district court granted both motions. The Johnson Circuit Court affirmed the dismissal, stating that under KRS 189A.103(7), Minix "was entitled to a test of his own choosing and the officer could not refuse the driver his right to the test once the driver [had] submitted to the preliminary breath test." The Court of Appeals affirmed the circuit court's judgment regarding Minix's right to his own test, but vacated and remanded that part of the judgment which suppressed all other evidence of Minix's intoxication and dismissed the charge. This Court subsequently granted discretionary review. After hearing oral arguments and reviewing the record, we reverse the decision of the Court of Appeals.

The sole issue presented in the case is when a driver suspected of driving under the influence is entitled to a blood or urine test of his own choosing. Appellant, the Commonwealth, contends that a driver must first submit to all tests requested by the officer before he is entitled to an independent test. Minix, on the other hand, argues that once he consented to the preliminary tests, although they were unsuccessful, he was entitled to his own test.

KRS 189A.103 is based on the public policy that an individual driving on the highways of Kentucky has given implied consent to the performance of breath, blood, and/or urine tests in the event that the individual is suspected of driving a vehicle under the influence. See Beach n. Commonwealth, Ky., 927 S.W.2d 826 (1996). KRS 189A .103 provides, in pertinent part, as follows:

The following provisions shall apply to any person who operates or is in physical control of a motor vehicle or a vehicle that is not a motor vehicle in this Commonwealth:

(1) He is deemed to have given his consent to one (1) or more tests of his blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration or presence of a substance which may impair one's driving ability, if arrested for any offense arising out of a violation of KRS 189A.010(1) or 189.520(1).

(7) 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...