Commonwealth v. Combs

Decision Date19 November 2021
Docket Number2018-CA-0840-MR
PartiesCOMMONWEALTH OF KENTUCKY APPELLANT v. HOLLY COMBS APPELLEE
CourtKentucky Court of Appeals

NOT TO BE PUBLISHED

ON REMAND FROM KENTUCKY SUPREME COURT (FILE NO. 2020-SC-0560-D)

BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky Former) John Hansen Special Assistant Attorney General Hazard, Kentucky

BRIEF FOR APPELLEE: Steven Nathan Goens Frankfort, Kentucky

BEFORE: COMBS, JONES, AND K. THOMPSON, JUDGES.

OPINION

THOMPSON, K., JUDGE

This case is again before this Court upon remand from the Kentucky Supreme Court for further consideration in light of its decision in Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky. 2021).

The Commonwealth appealed the Perry Circuit Court's interlocutory order granting Holly Combs's motion to suppress her blood test following her arrest for DUI on the basis that the circuit court erred in granting her motion because Combs validly offered her consent after being read the implied consent warnings. Initially, in our previous opinion, Commonwealth v. Combs, No. 2018-CA-0840-MR 2020 WL 6370497 (Ky.App. Oct. 30, 2020) (unpublished), we reversed and remanded on the basis that Combs's consent was valid pursuant to Commonwealth v. Brown, 560 S.W.3d 873 (Ky.App. 2018), which had distinguished Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). We now vacate and remand.

On August 6, 2017, Combs hit two pedestrians with her car while they were walking through a crosswalk in front of a Walmart entrance in Hazard, Kentucky. After her arrest, police read Combs the implied consent warnings, which included the information that if she refused consent and was convicted of DUI, her mandatory minimum sentence would be doubled. Combs consented to the blood draw and the results of her blood test were incriminating.[1] On October 9, 2017, Combs was indicted for one count of first-offense driving under the influence, three counts of first-degree wanton endangerment, one count of no registration plates, one count of no insurance, one count of first-degree possession of a controlled substance, two counts of second-degree assault, one count of prescription drugs not in the proper container, and one count of being a second-degree persistent felony offender. Combs filed a motion to suppress the results of her blood test, arguing "the taking of the blood test through coercion of the implied consent warning without a search warrant is unconstitutional" and "the implied consent law is unconstitutional[.]"

At the suppression hearing held on April 23, 2018, Officer John Holbrook testified for the Commonwealth and Combs testified for the defense. Officer Holbrook testified that when he was investigating what happened, Combs volunteered to him that she takes Suboxone and Keppra for seizures. Officer Holbrook administered field sobriety tests and recognized many signs of intoxication, the specifics of which he testified to, before arresting Combs for DUI. Officer Holbrook testified that in a search of Combs's purse incident to arrest, he found a prescription bottle for Buprenorphine which contained five and a half pills of Buprenorphine and two Xanax bars.

Officer Holbrook testified there was no odor of alcohol on Combs or her vehicle and based on all of the circumstances, he believed Combs was impaired by drugs or medication and determined that a blood test would be needed to determine what substances were causing her impairment. Therefore, he took Combs to Hazard Appalachian Regional Hospital (ARH) for a blood draw. According to Officer Holbrook, while at ARH Combs told him that she had gotten out of such charges before because she has seizures.

Officer Holbrook testified he read Combs the implied consent warnings. After she tried and failed to reach an attorney, Combs consented to a blood draw and signed paperwork at ARH. Officer Holbrook testified that the blood draw was performed but he did not know the results of the blood test.

Officer Holbrook testified that after the blood draw he took Combs to the Kentucky River Regional Jail (KRRJ). Before taking her inside, he asked Combs if she had any illegal substances on her and warned her that taking such substances inside would be a felony; Combs denied having any illegal substances. Officer Holbrook testified that while they were in the entrance of KRRJ, he noticed a substance sticking out of Combs's sock which he seized; the substance was later determined to be methamphetamine. According to Officer Holbrook, Combs told him that she was taking the drug to her boyfriend at KRRJ.

Officer Holbrook testified he reviewed surveillance video from Walmart and saw Combs's car drive through the Walmart crosswalk, which was occupied by five people. Combs made no attempt to stop and hit two people while the others jumped back. He testified the injured pedestrians were sisters, an eleven-year-old and an eighteen-year-old.

Officer Holbrook acknowledged that in the police report, which he prepared approximately two days after the accident, he did not mention Combs's statements that she had beaten such charges before or that she was taking the methamphetamine to her boyfriend at the jail. He also acknowledged that the implied consent warning he read to Combs included the language that "[i]f you are convicted of KRS [Kentucky Revised Statutes] 189A.010, your refusal will subject you to a mandatory minimum sentence which is twice as long as the mandatory minimum jail sentence that would be imposed if you submit to all requested tests." The implied consent warning was entered into evidence.

Combs testified very briefly. She testified that the officer read her the implied consent warning, which included a warning that if she failed to take the blood test she would be penalized, and her mandatory minimum sentence would be doubled. Combs testified she consented to give blood based on the warning about increased penalties. Combs testified she did not remember stating that she had gotten out of a DUI before based on her seizures and denied having previous seizures while driving. She stated she believed she had a seizure when she hit the pedestrians.

Neither party made any argument at the suppression hearing. Instead, both parties agreed to submit briefs. The circuit court ordered the parties to simultaneously submit briefs by April 27, 2018, at 4:00 p.m. Combs did not submit her brief until May 1, 2018; the Commonwealth never submitted a brief, instead timely submitting proposed findings of fact and conclusions of law.[2]

On May 4, 2018, an order was entered granting the motion to suppress. As to Combs's testimony regarding her consent to give blood, the circuit court only found that "Combs testified that she was read the implied consent form which included being advised that failure to give blood would result in penalties being enhanced and additional penalties." The circuit court's conclusions of law included summaries of what could constitute an exigent circumstance and determined that pursuant to Birchfield, 136 S.Ct. at 2186, "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." The circuit court concluded:

[T]he Court cannot find that exigent circumstances existed because the accident occurred at approximately 1:00 and the Officer was at the emergency room with the Defendant at 1:35 p.m. There was no attempt to get a search warrant and no testimony presented as to why one could not have been obtained.

The circuit court made no finding as to whether Combs's consent was a result of being warned about the doubling of mandatory minimum sentences if she refused consent.

The Commonwealth appeals from this interlocutory order granting Combs's motion to suppress pursuant to KRS 22A.020(4). See Parker v. Commonwealth, 440 S.W.3d 381, 383 (Ky. 2014) (explaining the Commonwealth has a statutory right to appeal such orders).

Initially we address Combs's arguments regarding whether we should even address the Commonwealth's argument on the merits. Combs criticizes the Commonwealth for submitting a late brief, arguing it should have been dismissed pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(b), [3] and argues that the brief which was submitted failed to follow CR 76.12(4). Combs is correct that the Commonwealth's brief fails to comply with CR 76.12(4)(c)(i) by failing to contain a separate introduction, [4] (iv) by failing to cite with specificity where items are contained in the record, [5] and (v) by failing to contain ample references to the record and not showing whether the issue was properly preserved.[6]

Although "[c]ompliance with CR 76.12 is mandatory[, ]" "noncompliance . . . is not automatically fatal[.]" Smothers v. Baptist Hospital East, 468 S.W.3d 878, 881-82 (Ky.App. 2015). We have discretion in deciding what the consequence of such failures shall be. CR 76.12(8)(a) provides that "[a] brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12." (emphasis added). We may also dismiss the appeal pursuant to CR 73.02(2)(a) or apply other sanctions such as only reviewing for manifest injustice. French v. French, 581 S.W.3d 45, 49 (Ky.App. 2019).

However in this case where there is no dispute that Combs consented to the blood draw after receiving the implied consent warnings, the issue before us is strictly to be determined as a matter of law and specific citations to the record are of less importance. Therefore, we choose not to impose a sanction. However, we caution that noncompliance in another case could result in sanctions or even dismissal of the appeal. See Koester v. Koester, 569 S.W.3d 412 ...

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