Commonwealth v. Filben, No. 2004-CA-002207-DG (Ky. App. 7/21/2006)
| Decision Date | 21 July 2006 |
| Docket Number | No. 2004-CA-002207-DG.,2004-CA-002207-DG. |
| Parties | COMMONWEALTH of Kentucky, Appellant v. Stephen Bradley FILBEN, Appellee |
| Court | Kentucky Court of Appeals |
David A. Sexton, Special Assistant Attorney General, Louisville, Kentucky, Brief for Appellant.
No brief for Appellee, Brief for Appellee.
Before: MINTON and SCHRODER, Judges; MILLER,1 Special Judge.
This matter is before us upon an Order of this court dated July 28, 2005, granting discretionary review.2 We affirm in part and reverse and remand in part.
During the early morning hours of February 19, 2005, Officer Douglas Curtis of the St. Matthews Police Department in Jefferson County, Kentucky, observed a 2004 Jetta automobile traveling in a southerly direction on Breckinridge Lane. Concluding that the vehicle was traveling at an excessive rate of speed and that it had inoperative tail lamps, Officer Curtis effected a stop. The vehicle was operated by the Appellee, Steven Bradley Filben. Filben was asked to exit the car. He appeared unsteady on his feet. He was administered, and failed, a number of field sobriety tests. According to a Criminal Complaint later filed, the vehicle and Filben smelled of alcohol.
Filben was placed under arrest and taken to Metro Corrections, where he was administered a Breathalyzer® test. Filben was charged with driving under the influence of alcohol3 (DUI) and operating a motor vehicle with no working tail lamps.4 In accordance with KRS 189A.103(7) Filben requested an independent alcohol concentration test5, and that he be taken to University Hospital for same. Officer Curtis transported Filben to that institution, where he was advised that the hospital had a policy of not performing such tests.6 Consequently, Filben was unable to obtain an independent test at University Hospital. For whatever reason, he was not tested elsewhere. Because he had not received an independent test in compliance with his request, Filben moved to suppress the results of the Commonwealth's Breathalyzer® test administered following his arrest.
According to Filben's suppression hearing testimony, at some point during the venture to University Hospital Officer Curtis informed him that he was only entitled to "one" opportunity to obtain a private test.7 After University Hospital refused the testing, Officer Curtis informed Filben that Suburban Hospital performed private blood/alcohol testing. Filben, however, did not request to be taken there, as he believed such a request would be of no avail because of the purported "one-stop rule."
The District Court concluded that the efforts of Officer Curtis did not meet the "reasonable efforts" standard as set forth in Commonwealth v. Long, 118 S.W.3d 178 (Ky. 2003). Specifically, the court stated as follows: "The facts reveal [the] police officer failed to provide Defendant with the independent test to which he was entitled under the totality of circumstances." As a result, the court ordered that the results of the Commonwealth's Breathalyzer® test rendered at Metro Corrections be suppressed. In addition, over the Commonwealth's objection, the District Court summarily dismissed the charges against Filben. Upon appeal, the Jefferson Circuit Court affirmed. We subsequently granted discretionary review.
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. Commonwealth v. Neal, 84 S.W.3d 920, 923 (Ky.App. 2002). If they are, then they are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78. Based on those findings, we must then conduct a de novo review of the trial court's application of law to those facts to determine whether its decision is correct as a matter of law. Id.; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998); Commonwealth v. Opell, 3 S.W.3d 747, 751 (Ky.App. 1999).
First, the Commonwealth contends that the District Court erred in concluding that Officer Curtis failed to comply with the "reasonable efforts" requirement as articulated in Commonwealth v. Long, supra. Long involved a situation in which an arrestee sought a private test and was denied the opportunity to make a phone call to obtain the funds necessary for the testing. In some detail the court addressed an arrestee's rights under KRS 189A.103(7):
Under our statutory scheme however, an individual arrested for driving under the influence who has submitted to the initial test administered by the state is allowed an independent test "to obtain another result to compare with or controvert the police officer's test." Commonwealth v. Minix, Ky., 3 S.W.3d 721, 724 (1999); KRS 189A.103(7).
. . . .
The officer shall make reasonable efforts to provide transportation to the tests.
. . . .
In construing the statutory scheme of KRS Chapter 189A, we believe the plain meaning and unambiguous intent expressed by our legislature is that once an individual has submitted to the state's breath, blood or urine test to determine his or her alcohol concentration, that individual has a statutory right to have an independent test by a person of his or her own choosing within a reasonable time of the arrest at the individual's own expense. Moreover, our legislature makes provisions to insure that individuals who have been arrested for driving under the influence know that they have this right by mandating that the police inform them of their right at least two different times. In order to give effect to this right, the statute requires some minimal police allowance and assistance.
. . . .
Because an individual is in police custody during the period when he or she is entitled to an independent blood test, the statute requires some level of facilitation by the police to afford the individual this right. In other words, by the nature of the proceedings, the individual does not have the liberty of arranging for the test himself, so the statute makes at least one provision for police assistance, which is police transportation to the independent testing facility.
. . . .
Other jurisdictions having similar statutory schemes and having considered the level of facilitation required by the police have also taken a totality of the circumstances approach. See State v. Buffington, 189 Ga.App. 800, 377 S.E.2d 548 (1989); State v. Messner, N.D., 481 N.W.2d 236, 240 (1992) (); Bilbrey v. State, Al.App., 531 So.2d 27, 30 (1987); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1128 (1983). See generally John P. Ludington, Annotation, Drunk driving: Motorist's right to private sobriety test, 45 A.L.R.4th 11 (1986.) In Buffington, the Georgia court of appeals concluded that the police did not give an individual arrested for driving under the influence the opportunity to have an independent blood test when that individual came up a few dollars short of the required amount, and the police officer did not permit him to contact a relative to bring him the remainder. See id. at 549. In reaching this conclusion, the appellate court considered the applicable Georgia statute that allowed one accused of driving under the influence the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing. See id. at 550. Moreover, the court held that there was a "corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right." Id.
. . . .
Similar to our statute, the Georgia statute stated that "the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer." Id. (citing O.C.G.A. § 40-6-392(a)(3)). Accordingly, the Georgia appellate court held that it was incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused's requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing. Id.
. . . .
In such situations, we hold that a police officer has a duty to act reasonably under the circumstances, considering such factors as those outlined above in the Buffington opinion. Moreover, the Commonwealth would be free to establish during a subsequent trial the effect of the passage of time on a person's blood alcohol level to explain any differences between the state-administered test and the individual's later independent blood test. However, as long as the test can be administered within a reasonable time of the individual's arrest, that individual is entitled to police cooperation to obtain the test.
Long, 118 S.W.3d 178, 181 (Ky. App. 2003)(Emphasis added).
In the case at hand, we agree with the District Court's conclusion that the police did not...
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