Lee v. Com., No. 2009-SC-000371-DG.
| Decision Date | 17 June 2010 |
| Docket Number | No. 2009-SC-000371-DG. |
| Citation | 313 S.W.3d 555 |
| Parties | Robin Ken LEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
313 S.W.3d 555
Robin Ken LEE, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2009-SC-000371-DG.
Supreme Court of Kentucky.
June 17, 2010.
James Andrew Maples, Elizabethtown, KY, Counsel for Appellant.
Jack Conway, Attorney General, Mark Anthony Shouse, Special Assistant County Attorney, Elizabethtown, KY, Counsel for Appellee.
Opinion of the Court by Justice CUNNINGHAM.
At approximately 6:50 p.m. on the evening of November 28, 2007, in Hardin County, Appellant was arrested for driving under the influence, second offense. He was given a breathalyzer test which resulted in a reading of .209.
Subsequent to the breathalyzer, Appellant requested a blood test. He was immediately taken to Hardin Memorial Hospital. There, the doctor on duty refused to give the blood test, citing in his medical records that there was no medical basis to administer the test. Appellant was then "cleared medically to go to jail. . . ."
Appellant entered a conditional plea to DUI, second offense, in Hardin District Court after his motion to suppress/dismiss the case against him was denied. The basis for Appellant's motion was that he had not been allowed to secure an independent blood alcohol test as required by law. The trial court ruled that the police officer had made reasonable allowances for Appellant to have a blood alcohol test and, therefore, was in compliance with the statute.
The Hardin Circuit Court affirmed the district court's refusal to suppress the evidence. We granted Appellant's motion for discretionary review from the order entered by the Court of Appeals denying review in that court.
The only issue before us is whether actions of the police officer were sufficient to accommodate Appellant's right under KRS 189A.103(7) to have an independent blood test performed by "a person of his own choosing."
The sparse facts involved in this case were apparently uncontested. Therefore, whether the trial court was in error in denying the motion to suppress is a question of law, and the standard of review is de novo. Jackson v. Commonwealth, 187 S.W.3d 300, 305 (Ky.2006); Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).
At the heart of this issue is KRS 189A.103(7) and the Court of Appeals' interpretation of that statute in Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 2003). We cite in full KRS 189A.103(7):
After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person...
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...the trial court's denial of Appellant's motion to dismiss was based upon a conclusion of law,5 we review de novo. See Lee v. Commonwealth, 313 S.W.3d 555, 556 (Ky.2010) (applying de novo review to question of law involving trial court's decision to deny motion to suppress). CR 41.02(3) stat......
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...simply express my reasoning a little differently.1 Litteral, 282 S.W.3d at 333.2 Bhattacharya, 292 S.W.3d at 904.3 See Lee v. Commonwealth, 313 S.W.3d 555, 556 (Ky. 2010) (holding a totality of the circumstances analysis was proper to determine whether an officer made a reasonable effort to......
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...(citations and internal quotation marks omitted).The Kentucky Supreme Court approvingly referred to Long's analysis in Lee v. Commonwealth, 313 S.W.3d 555, 556 (Ky.2010). However, the Supreme Court found no reason to engage in Long's analytical model for two reasons. First, “it does not app......