Commonwealth v. Duncan

• Decision Date: 14 May 2015
• Docket Number: 2013–SC–000742–DG
• Citation: 483 S.W.3d 353
• Parties: Commonwealth of Kentucky, Appellant v. Christopher Duncan, Appellee
• Court: United States State Supreme Court — District of Kentucky

483 S.W.3d 353

Commonwealth of Kentucky, Appellant

v.Christopher Duncan, Appellee

2013–SC–000742–DG

Supreme Court of Kentucky.

RENDERED: MAY 14, 2015

Rehearing Denied September 24, 2015

Counsel for Appellant: Jack Conway, Attorney General of Kentucky, Jeffrey Allan Cross, Assistant Attorney General

Counsel for Appellee: Amealia R. Zachary

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

During the afternoon of March 31, 2007, Appellee, Christopher Duncan was stopped by Sergeant Brent McDowell of the Providence Police Department for operating his motor vehicle without the use of a seatbelt and for crossing the center lane of traffic. Appellee smelled strongly of alcohol, had bloodshot eyes, and admitted to drinking three beers prior to driving. Sergeant McDowell conducted a series of field sobriety tests, all of which Appellee failed. Sergeant McDowell also administered a Portable Breathalyzer Test ("PBT") which detected the presence of alcohol on Appellee's breath. As a result, Sergeant McDowell placed Appellee under arrest. In an effort to ascertain Appellee's Blood Alcohol Concentration level ("BAC"), Sergeant McDowell asked Appellee if he would submit to a blood test. Appellee refused to consent and instead requested that Sergeant McDowell utilize a breathalyzer test to ascertain his BAC.¹ Sergeant McDowell declined Appellee's request and transported Appellee to the Webster County Jail.

Appellee was subsequently charged with driving under the influence ("DUI") of alcohol, third offense. On October 23, 2007, Appellee filed a motion with the Webster District Court seeking to dismiss the DUI charge. As grounds for his motion, Appellee claimed that Sergeant McDowell violated Kentucky Revised Statute ("KRS") 189A.103 by requesting his permission to administer a blood test prior to administering a breathalyzer test. In support of his argument that breathalyzer testing is the preferred testing method, Appellee noted that the extraction of his blood is considered a seizure within the meaning of the Fourth Amendment, and, therefore could not have been tested absent his consent or Sergeant McDowell's attainment of a warrant. Furthermore, Appellee claimed that if he was provided a breathalyzer test, as he requested, the results would have exonerated him from the charge.

The Webster District Court denied Appellee's motion to dismiss by order dated February 26, 2008. The district court cited KRS 189A.103(1), known as Kentucky's Implied Consent law, and Beach v. Commonwealth, 927 S.W.2d 826 (Ky.1996) and concluded that Sergeant McDowell had "the option as to which test may be given in a DUI case."² Additionally, the district court declared that Sergeant McDowell was free to request a breathalyzer, urine, or blood test in any order, and in any combination he so desired. Appellee appealed to the Webster Circuit Court, who affirmed the district court's order. Appellee sought further review, which the Court of Appeals denied because it believed the case was not ripe for review since Appellee had not been found guilty of committing any crime.

On July 10, 2010, Appellee pled guilty to the amended charge of DUI, second offense. As a condition of Appellee's plea, he reserved the right to appeal the issue of whether Sergeant McDowell violated Kentucky's Implied Consent law by denying him a breathalyzer test and instead requesting a blood test. Accordingly, Appellee once again began the appeals process. The Court of Appeals subsequently accepted Appellee's motion for discretionary review and on April 19, 2013, issued its order affirming the circuit court's denial of Appellee's motion to dismiss. Duncan v. Commonwealth, 2011–CA–000636 (Ky.App. April 19, 2013). Like the courts below it, the Court of Appeals ruled that nothing in Kentucky's Implied Consent law prevents an officer, who is investigating an alcohol-related DUI, from using a blood test as the initial BAC testing method. In formulating its decision, the Court of Appeals relied on the plain language of KRS 189A.103 and Beach, 927 S.W.2d 826.

On April 17, 2013, a mere two days before the Court of Appeals issued thé above-referenced opinion, the U.S. Supreme Court rendered its opinion in Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). Appellee, believing that McNeely overturned Beach and mandated the reversal of the district and circuit courts' rulings, filed a petition requesting that the Court of Appeals reconsider its opinion. On July 19, 2013, the Court of Appeals granted Appellee's petition and withdrew its April 19, 2013, opinion affirming the denial of Appellee's motion to dismiss. In its place, the Court of Appeals issued a new opinion which reversed the circuit court's holding and remanded the case back to the district court. Without explanation, the Court of Appeals reasoned that McNeely was not only controlling, but applicable to the issue before the court. The Commonwealth sought discretionary review with this Court, which we subsequently granted.

The facts of this case are not in contention and the only inquiry before the Court is one of statutory interpretation. Consequently, this Court will conduct a de novo review. Artrip v. Noe, 311 S.W.3d 229, 231 (Ky.2010).

Appellee was charged with operating a motor vehicle under the influence of alcohol as proscribed in KRS 189A.010(1)(a). The elements of this crime are described as follows:

(1) person shall not operate or be in physical control of a motor vehicle anywhere in this state:

(a) Having 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;

Id. The General Assembly enacted Kentucky's Implied Consent law, found in KRS 189A.103(1), which provides that by virtue of driving on Kentucky's roadways, a motor vehicle operator implicitly consents to the testing of his or her breath, blood, and urine for the purpose of determining the individual's BAC. Of course, Kentucky's Implied Consent law is not absolute. The driver has the freedom to refuse to submit to any form of testing. See KRS 189A.104. However, refusal to submit to testing can result in the immediate suspension of the driver's license and a double minimum jail sentence. See KRS 189A.105(1) and (2)(a)(1). Moreover, such refusal can be used in court as proof of the driver's guilt. See id.

With this statutory framework in mind, we will turn our attention to the particular statute at issue, KRS 189A.103. As with any statutory interpretation, this Court must begin its analysis by looking at the statute's plain wording, which in KRS 189A.103 is 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 or she has given his or her consent to one (1) or more tests of his or her 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 an officer has reasonable grounds to believe that a violation of KRS 189A.010(1) or 189.520(1) has occurred;

From this language, the Court garners that once law enforcement has reasonable cause to believe that a driver is operating a motor vehicle under the influence of drugs or alcohol, that officer may utilize a breath, blood, or urine test, or a combination thereof, in order to uncover the driver's BAC. The statute does not declare that a specific testing order is to be followed, nor does it state that a breath test is the primary or preferred method of ascertaining the driver's BAC. Indeed, we can find no explicit or implicit directive from the General Assembly requiring law enforcement to administer a breathalyzer test first, prior to proceeding with blood testing. Furthermore, this statute in no way bestows power upon the driver to dictate to law enforcement which test to administer First. As a result, we must conclude that Sergeant McDowell was under no statutory obligation to provide Appellee with a breathalyzer test prior to requesting that he submit to a blood test. And, while Appellee was certainly free to express an opinion as to his testing preference, Sergeant McDowell was the individual with statutory authority to determine which of the three tests to utilize.³

Moving beyond the implied consent portion of KRS 189A.103, Appellee maintains that Subsection (5) demonstrates that breath testing is to be the initial testing procedure. The wording of KRS 189A.103(5) is as follows:

When the preliminary breath test, breath test, or other evidence gives the peace officer reasonable grounds to believe there is impairment by a substance which is not subject to testing by a breath test, then blood or urine tests, or both, may be required in addition to a breath test, or in lieu of a breath test;

(Emphasis added). Appellee believes this language proves that law enforcement does not enjoy unfettered discretion when determining which of the three tests to administer first. We disagree. It is abundantly clear to this Court that Subsection (5) only applies to situations wherein the driver is suspected of driving under the influence of substances that are not detectable by a breath test, e.g., drugs such as controlled substances or prescription medications, not alcohol. In those investigations, preliminary testing, such as a PBT, would be insufficient in detecting the presence of drugs. For that reason, the officer would be without "reasonable grounds" to believe that the driver was operating his or her vehicle under the influence of drugs, which in turn would prevent the officer from obtaining additional blood or urine testing. See KRS 189.103(1). Consequently, we believe Subsection (5) merely provides law enforcement with the authority needed to seek blood or urine testing when investigating an individual...