Commonwealth v. McCarthy

• Decision Date: 29 April 2021
• Docket Number: 2019-SC-0380-DG
• Citation: 628 S.W.3d 18
• Court: United States State Supreme Court — District of Kentucky
• Parties: COMMONWEALTH of Kentucky, Appellant v. Jared MCCARTHY, Appellee

628 S.W.3d 18

COMMONWEALTH of Kentucky, Appellant

v.Jared MCCARTHY, Appellee

2019-SC-0380-DG

Supreme Court of Kentucky.

APRIL 29, 2021 Court Order Denying Petition for Rehearing August 26, 2021

COUNSEL FOR APPELLANT: Daniel J. Cameron, Attorney General of Kentucky, Mark Daniel Barry, Assistant Attorney General.

COUNSEL FOR APPELLEE: Kathleen Kallaher Schmidt, Erin Hoffman Yang, Assistant Public Advocates.

OPINION OF THE COURT BY JUSTICE HUGHES

In Birchfield v. North Dakota , ––– U.S. ––––, 136 S. Ct. 2160, 195 L.Ed.2d 560 (2016), the United States Supreme Court altered the landscape in driving under the influence (DUI) investigations by announcing that the Fourth Amendment permits a warrantless breath test incident to an arrest for drunk driving, but not a warrantless blood test. For warrantless blood tests, the search is unreasonable under the Fourth Amendment unless valid consent is given or exigent circumstances justify the search. This appeal addresses the ramifications of Jared McCarthy's exercise of his constitutional right to refuse to take a blood test when stopped for DUI and ultimately convicted of that offense pursuant to Kentucky Revised Statute (KRS) 189A.010.

We conclude the trial court properly held that under Birchfield McCarthy's refusal to submit to a blood test could not be used to enhance his criminal penalty for DUI and, under controlling Kentucky precedent, could not be used as evidence that he was guilty of DUI. The trial court erred, however, in allowing the Commonwealth to introduce the refusal evidence to explain to the jury the lack of scientific evidence as to McCarthy's blood alcohol content (BAC). Upon review of the record, we cannot conclude that the erroneous admission of that evidence was harmless beyond a reasonable doubt and thus affirm the Court of Appeals’ decision reversing and remanding this case to the Daviess Circuit Court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On November 1, 2014 at 1:00 a.m., an Owensboro police officer stopped Jared McCarthy on suspicion of DUI. The officer administered a series of field sobriety tests and placed McCarthy under arrest.¹ The officer transported McCarthy to the hospital where he requested McCarthy submit to a blood test and informed McCarthy of the repercussions under KRS 189A.105(2)(a) 1 for refusing the test. Specifically, the officer warned McCarthy that (1) if he refused the test, the fact of the refusal may be used against him in court as evidence of violating KRS 189A.010, the DUI statute, and (2) if he refused the test and was subsequently convicted of DUI under KRS 189A.010, then he would be subject to a mandatory minimum jail sentence twice as long as the mandatory minimum jail sentence imposed if he were to submit to the test.² McCarthy refused the blood test.

Pretrial, McCarthy moved in limine to exclude any evidence of his refusal to take the warrantless blood test. Citing then-recently-decided Birchfield v. North Dakota as impacting KRS 189A.105(2)(a) 1, he argued that a blood draw is a search of his person requiring a warrant and that he could not be deemed to have consented to the blood draw through statutory implied consent when facing a criminal penalty, namely additional jail time. McCarthy argued that his refusal to consent to a warrantless search,³ could not be used against him as an aggravator for penalty purposes or as evidence at trial of the DUI offense.

The Commonwealth responded that Birchfield does not apply to KRS 189A.105 because, unlike the North Dakota and Minnesota implied-consent statutes analyzed in Birchfield , the Kentucky General Assembly did not create a separate violation and criminal penalty for refusing the blood test, i.e., a freestanding offense which could be prosecuted regardless of whether the defendant was prosecuted for or found guilty of DUI. The Commonwealth noted that under KRS 189A.105, Kentucky's mandatory minimum term of imprisonment cannot attach until a conviction for DUI occurs, requiring the Commonwealth first prove the DUI, and if the defendant is found guilty, then prove his refusal. The Commonwealth also argued that because Birchfield did not disturb the civil penalties and evidentiary consequences of a refusal, the fact of McCarthy's refusal of the blood test could be used against him in court as evidence of violating KRS 189A.010, just as he was explicitly warned pursuant to KRS 189A.105. The Commonwealth further insisted that given common knowledge that scientific tests are often used as evidence in DUI cases, it should be allowed to explain to the jury why the Commonwealth did not have a scientific test as part of its proof against McCarthy.

After considering Birchfield , the trial court ruled in McCarthy's favor in terms of the implication of guilt and the enhanced penalty associated with the refusal. The circuit court concluded McCarthy's trial would proceed as a DUI prosecution without the aggravating circumstance. Specifically, the circuit court ruled that the Commonwealth (1) could not use McCarthy's refusal to take the warrantless blood test as evidence implying his guilt during its case-in-chief but could introduce the refusal to explain the absence of any scientific evidence to prove the DUI, and (2) could not use the refusal to enhance McCarthy's penalty if he were found guilty of DUI. As to McCarthy, the circuit court ruled that McCarthy (1) could argue that the Commonwealth offered no scientific evidence of his guilt, but (2) could not comment that the absence of scientific evidence was due to the Commonwealth's failure to secure a warrant for his blood. The trial court did not allow questions about the warrant because issuance of a warrant is a question of law. McCarthy's first trial ended in a mistrial with a deadlocked jury. The trial court's rulings remained in effect for McCarthy's second trial.

At trial, Officer Fleury testified that he stopped McCarthy after observing his vehicle leave a bar parking lot and swerve across the roadway's centerline. McCarthy was driving and had three passengers. Officer Fleury testified that the car, as well as McCarthy himself upon his removal from the car, smelled of alcoholic beverages; that McCarthy slurred his speech a little bit; that McCarthy was a bit lethargic; and that McCarthy's cumulative performance on the field sobriety tests indicated that he was impaired. The jury saw the video of Officer Fleury stopping McCarthy and McCarthy performing the field sobriety tests. A search of the vehicle yielded three open containers of beer and prescription bottles of clonazapam and hydrocodone, prescribed for McCarthy. Officer Fleury did not open the containers to count the pills. Officer Fleury testified that the prescription labels contained a warning that they should not be used in combination with alcohol.

Officer Fleury testified that after arresting McCarthy, he transported McCarthy to the hospital for a blood draw, but McCarthy refused the draw.⁴ On cross-examination, Officer Fleury also testified that he had never requested a search warrant for blood in a DUI case and did not even know whether he could request a warrant.⁵ During deliberations, the jury asked to view the video again. The jury found McCarthy guilty of operating a motor vehicle while under the influence of alcohol and/or other substances, fourth offense within the last five years. The trial court followed the jury's recommendation and sentenced McCarthy to two years in prison, noting that under the statute McCarthy "must serve 120 days of his sentence."

McCarthy appealed to the Court of Appeals, arguing that the trial court erred (1) by allowing the Commonwealth to introduce evidence that McCarthy refused to submit to blood testing and then (2) by preventing him from countering that evidence by asking the police officer why he had not obtained a warrant for the blood test.⁶ In response, the Commonwealth expounded on its arguments before the trial court that Birchfield ’s holding is inapplicable to Kentucky's DUI statutes and that the Commonwealth is statutorily permitted to introduce evidence of McCarthy's refusal.

The Court of Appeals, addressing whether Birchfield is applicable to KRS 189A.105 ’s sentence enhancement upon a DUI conviction, concluded an otherwise apparently relevant conclusion in then-recently-decided Commonwealth v. Brown , 560 S.W.3d 873 (Ky. App. 2018), was dicta; the Brown court stated that although the doubling of a mandatory minimum jail sentence is a criminal sanction, unlike the statutes examined in Birchfield , it lacks the coercive force presented by an additional criminal charge for refusing. Rejecting this reasoning, the Court of Appeals in this case concluded that Birchfield applied to KRS 189A.105 ; that McCarthy's refusal could not be used as evidence of guilt in the DUI prosecution; and considering Deno v. Commonwealth , 177 S.W.3d 753, 762 (Ky. 2005), and Coulthard v. Commonwealth , 230 S.W.3d 572, 582 (Ky. 2007), the Commonwealth improperly commented on McCarthy's refusal, especially in light of the trial court's ruling that McCarthy could not comment on the officer's failure to seek a search warrant. We granted discretionary review and, after careful consideration, affirm the Court of Appeals.

ANALYSIS

McCarthy initially raised the issues before us by filing a motion in limine to exclude evidence of his refusal and the trial court ultimately entered an "Order Limiting Introduction of Refusal to Take Warrantless Blood Test." Neither McCarthy nor the court treated the matter as a suppression motion. On appeal, however, McCarthy argued that evidence of his refusal should be "suppressed" and the Court of Appeals then analyzed the issues through the lens of a suppression motion. Although this is not a typical scenario where a government search has yielded evidence such as drugs, weapons or, most pertinently, a BAC result which the defendant asks the court to suppress, the officer's request did result in...