Commonwealth ex rel. Logan Cnty. Attorney v. Williams, NO. 2018-CA-000304-MR

CourtCourt of Appeals of Kentucky
Writing for the CourtNICKELL, JUDGE
Docket NumberNO. 2018-CA-000304-MR
Decision Date20 September 2019


NO. 2018-CA-000304-MR

Commonwealth of Kentucky Court of Appeals

SEPTEMBER 20, 2019


ACTION NO. 17-CI-00218


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NICKELL, JUDGE: The Commonwealth appeals a Logan Circuit Court order denying its petition for a writ of prohibition to prevent enforcement of a suppression order. The underlying issue is whether the Logan District Court properly suppressed a blood alcohol concentration ("BAC") result collected from Eladio Ortiz, a Spanish-speaking person suspected of drunk driving who was read

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Kentucky's implied consent law in English before submitting to a blood draw. The ultimate question is how law enforcement officers inform suspected drunk drivers of the right to refuse blood, breath or urine testing and the consequences of submitting to and refusing such testing as required by KRS1 189A.105. The district court found Ortiz did not have sufficient command of the English language to be "informed" of his rights under Kentucky's implied consent law by an officer's reading of the warning to him in English and suppressed the BAC result, a decision with which the circuit court agreed and denied the Commonwealth's petition for a writ of prohibition. Following review of the briefs, record and law, we disagree with both lower courts and reverse and remand for further proceedings.


In the early morning hours of September 10, 2016, a citizen reported seeing a vehicle operating on the wrong side of Hopkinsville Road in Logan County. Russellville Police Officer Chad Eggleston responded, observed the vehicle drop off the right-hand shoulder of the road, and stopped the car around 2:20 a.m. As Officer Eggleston—wearing a body camera—approached the vehicle, he noticed a strong odor of alcohol on both the driver, Ortiz, and the car.

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According to Officer Eggleston, when Ortiz—the sole occupant—exited the vehicle, he was "very unsteady" on his feet, appeared to be highly intoxicated, and had an open alcoholic beverage container in the car. When the officer asked Ortiz, "Do you understand what I'm saying," Ortiz responded, "Yes." After Ortiz said he had consumed "a little [cerveza]"2 at work, Officer Eggleston said, "well, we're gonna do some tests. Can you understand me enough to do the tests," to which Ortiz responded, "I understand." Ortiz was unable to complete the walk-and-turn test. When directed to do the one-leg stand, he attempted to repeat the walk-and-turn test, prompting this exchange:

Officer: Did you understand what I asked you to do? Yes?

Ortiz: Yes.

Officer: You did understand me?

Ortiz: Yeah, Yeah.

Officer: OK, you did understand me? You didn't do it.

Thereafter, Ortiz failed the horizontal gaze nystagmus test even though a second officer demonstrated how it was to be performed. Although unable to follow verbal commands to successfully complete the three field sobriety tests, Ortiz stated—in English—he understood the officer's directions. A preliminary breath

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test showed the presence of alcohol. Believing Ortiz to be highly intoxicated, Officer Eggleston placed him under arrest, handcuffed him, and transported him to Logan Memorial Hospital where he read Kentucky's implied consent warning aloud in English and Ortiz agreed to have his blood drawn by medical personnel. The test revealed a BAC of .233. Ortiz was charged with operating a motor vehicle under the influence of alcohol—first offense—and having no operator's license.3

Six months after the traffic stop, on March 9, 2017, arguing Ortiz did not understand English and did not understand he could refuse testing, counsel moved to suppress Ortiz' BAC result. Alternatively, counsel moved to exclude evidence of the failed field sobriety tests.

A suppression hearing was convened during which Officer Eggleston testified as previously recounted. Kimberly Guzman, a friend and former co-worker of Ortiz, testified Ortiz routinely nods, smiles and agrees when he hears English, but the arresting officer should have known Ortiz clearly did not understand his instructions. Her testimony was unrefuted.

After watching body camera video of both the traffic stop (showing Ortiz' occasional responses in English, body language and demeanor) and the

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subsequent blood draw at the hospital during which Ortiz spoke about his family in English, and hearing argument of counsel, the Logan District Court found Ortiz was unable to sufficiently understand English to have been "informed" of the implied consent law and its associated rights. The district court described the video as rife with:

[the officer] using body language and hand gestures to communicate with [Ortiz]; [the officer] speaking slowly, in broken English and with a smattering of Spanish; [Ortiz] answering questions in Spanish that were unresponsive and incongruous; [Ortiz'] repeated responses of, "yeah", "huh", or "um"; and [Ortiz] mumbling in Spanish.

The district court further found the arresting officer "knew" Ortiz could not speak English or "had a very limited grasp of the English language which would prevent [him] from informing [Ortiz] of the implied consent law and rights contained therein." The district court found the arresting officer used the tools provided to him but violated the implied consent statute by not "informing" Ortiz in a way that "might" have avoided the search or resulted in a less abusive search. The district court suppressed the BAC result, writing:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature and all words and phrases shall be construed according to the common and approved usage of language. KRS 446.080(1) & (4). If the law does not afford non-English speakers the same right to be informed then the result would render the statute and the Legislature's mandate to inform meaningless and would

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incentivize law enforcement and judicial practices that do not conform to the notions of fair play and substantial justice.

While suppressing the BAC result, the district court found Officer Eggleston had probable cause to make both the stop and the arrest because he had personally observed Ortiz drive the vehicle off the right-hand shoulder of the roadway in a careless or reckless manner. The district court allowed the prosecution to go forward based on Officer Eggleston's lay opinion of Ortiz' level of intoxication.

Alleging irreparable injury, the Commonwealth petitioned the Logan Circuit Court for a writ of prohibition to prevent enforcement of the suppression order. After hearing argument, the circuit court affirmed the district court's ruling, noting KRS 189A.105 does not merely require information be recited in English, but specifically requires the person suspected of drunk driving be "informed" of the consequences of submitting to testing as well as refusing testing. In denying the writ, the circuit court wrote,

[w]here it is clear a person is not comprehending the officer, further inquiry and a new approach may be warranted. Judicial notice is taken that computer programs and cell phone apps are currently available to translate messages into most languages. If the person is deaf, written communications may be necessary to insure that the person is informed. Investigation of those who may be impaired sometimes [sic] a flexible approach.

Any other interpretation would make meaningless the statutes [sic] direction to actually inform the person. This requirement not only pertains to those who do not

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speak English, but also the deaf, mentally ill or medically impaired. The officer must take reasonable measures to be certain the person is actually informed of the consequences of a decision to refuse the test or take it, and, perhaps most importantly, the right to attempt to contact counsel prior to making that decision.

Against this backdrop we consider how a person is "informed" by law enforcement of the implied consent law and its consequences, and whether suppression was necessary.


Granting or denying a writ of prohibition is within the sound discretion of the court weighing the petition. Commonwealth v. Peters, 353 S.W.3d 592 (Ky. 2011) (citing Haight v. Williamson, 833 S.W.2d 821, 823 (Ky. 1992)). We review the Logan Circuit Court's denial of the petition for abuse of discretion. If challenged, we would review its factual findings for clear error. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). Because interpreting KRS 189A.105 "is purely a legal issue, our review [of the court's application of the law] is de novo." Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003).

On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. 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.

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Id. (internal quotation marks and citations omitted). In conducting our review, "[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]" KRS 446.080(1). Throughout our analysis we are mindful the purpose of the implied consent law is to "facilitate obtaining evidence of driving while under the influence." Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996). BAC begins dissipating upon full absorption in the body and continues declining until eliminated. Missouri v. McNeely, 569 U.S. 141, 152, 133 S.Ct. 1552, 1560-61, 185 L.Ed.2d 696 (2013) (collecting cases). Prompt collection is necessary for the sample to have value.

Kentucky's implied consent law is codified in KRS 189A.103.4 By...

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