Commonwealth v. Combs
| Decision Date | 30 October 2020 |
| Docket Number | NO. 2018-CA-0840-MR,2018-CA-0840-MR |
| Parties | COMMONWEALTH OF KENTUCKY APPELLANT v. HOLLY COMBS APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM PERRY CIRCUIT COURT
The Commonwealth of Kentucky appeals from the Perry Circuit Court's interlocutory order granting Holly Combs's motion to suppress her blood test following her arrest for DUI. The Commonwealth argues that the circuit court erred because Combs validly offered her consent after being read the implied consent warnings.
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 askedCombs 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 p.m. Combs did not submit her brief until May 1, 2018; the Commonwealth never submitted a brief but did submit 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 formwhich 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 v. North Dakota, 136 S. Ct. 2160, 2186, 195 L. Ed. 2d 560 (2016), "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 Commonwealth appealed from this interlocutory order granting Combs's motion to suppress pursuant to KRS 22A.020(4). Parker v. Commonwealth, 440 S.W.3d 381, 383 (Ky. 2014).
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 brief3 and argues that the brief which was submitted failed to follow CR 76.12(4) by failing to: contain an introduction, specifically reference the record, and state how the issue was preserved for review.
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 chose not to impose a sanction. However, we caution that non-compliance in another case could result in sanctions or even dismissal of the appeal. See Koester v. Koester, 569 S.W.3d 412 (Ky.App. 2019).
Combs also argues that we should decline to review the alleged error because the Commonwealth failed to preserve its argument that the results of the blood draw should not be suppressed because the Commonwealth never submitted a brief below and we may only review for palpable error.
Combs's preservation argument is not well taken. Although the Commonwealth failed to explain how it preserved its argument, a failure to comply with CR 76.12(4)(c)(v) does not render a properly preserved issue unpreserved. While the Commonwealth did not make an oral argument during the suppression hearing or file a brief explaining its opposition to the motion to suppress, it did submit proposed findings of fact and conclusions of law opposing suppression which adequately preserved its argument for review. Accordingly, it is appropriate to review the circuit court's grant of the motion to suppress on the merits.
An appellate court's standard of review of the trial court's decision on a motion to suppress requires that we first determine whether the trial court's findings of fact are supported by substantial evidence. If they are, thenthey are conclusive. Based on those findings of fact, we must then conduct a de novo review of...
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