Love v. Com.

• Decision Date: 22 February 2001
• Docket Number: No. 1999-SC-0639-MR.,1999-SC-0639-MR.
• Citation: 55 S.W.3d 816
• Parties: Christopher LOVE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

55 S.W.3d 816

Christopher LOVE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0639-MR.

Supreme Court of Kentucky.

February 22, 2001.

Rehearing Denied October 25, 2001.

COPYRIGHT MATERIAL OMITTED

Emily Holt, Department of Public Advocacy, Frankfort, Counsel for Appellant.

A.B. Chandler, III, Attorney General, Samuel J. Floyd, Jr., Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

COOPER, Justice.

In the early morning hours of December 13, 1997, a three-car accident on Louisville's eastbound Watterson Expressway claimed the lives of two individuals and injured seven other. A jury convicted Appellant, Christopher Love, of two counts of wanton murder, two counts of assault in the first degree, one count of assault in the third degree, four counts of assault in the fourth degree, and one count each of operating a motor vehicle with a suspended operator's license and operating a motor vehicle while under the influence of alcohol. He was sentenced to prison for twenty years and appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

At 2:21 a.m. on December 13, 1997, a Chrysler Laser, driven by William Shaw, merged onto the eastbound lanes of Watterson Expressway from the northbound lanes of Dixie Highway. Shaw, drunk and on methamphetamines and amphetamines, failed to notice a Ford Aerostar minivan, driven by Clark Vinson, and prematurely merged over the raised median. The collision caused the minivan to flip three times and land on its passenger side, perpendicular to the Watterson, with its nose facing the barrier wall. Vinson was ejected through the front windshield and onto the highway. Shaw's vehicle struck the barrier wall, flattened its left side tires, and rolled to a stop further down the expressway.

At the site of the accident, eastbound Watterson is a three-lane highway for through traffic divided by white intermittent lines. A small hill lies to the west of the scene. An emergency lane borders the left lane, with a concrete barrier wall dividing the emergency lane from west-bound traffic. To the right of the through lanes, a raised median separates the entrance ramp from Dixie Highway to the Watterson. The posted speed limit is 55 miles per hour.

Immediately after the accident, occupants of several eastbound vehicles stopped to render assistance. David Morrison parked his tractor-trailer rig between Vinson's minivan and Shaw's Chrysler and started placing red warning triangles on the road. A group of Fort Knox soldiers, including Christopher Ochs, also stopped to render aid. At 2:23 a.m., Shively police arrived on the scene in two cruisers. They parked one cruiser to block the entrance ramp from Dixie Highway and the other to block the left and center lanes of the Watterson. Two of the officers went to aid Vinson who was conscious but so seriously injured that the officers radioed for a helicopter to transport him to a hospital. A third officer, cadet Clark, had been instructed to move his cruiser from the entrance ramp to further west on the Watterson to provide additional warning time for motorists topping the rise above the accident.

At 2:26 a.m., Appellant Love crested the hill in his Ford Thunderbird and approached the accident scene at a high rate of speed. Eyewitnesses estimated Appellant's speed at seventy to ninety miles per hour. Appellant successfully swerved to miss the police cruiser partially blocking the left two lanes, but struck the minivan, flipping it onto Vinson and killing him instantly. The Thunderbird then struck soldier Christopher Ochs, who also died instantly. Six other bystanders, including two police officers, were injured as a result of being struck by the Thunderbird, the minivan, or debris. The Thunderbird then careened off of the tractor-trailer rig and crashed perpendicularly into the barrier wall, injuring both Appellant and his passenger, Kimberly Morris.

There were no skid marks at the scene attributable to the Thunderbird. No one saw any brake lights on the Thunderbird as it swerved around the police cruiser. Four unopened and two opened beer cans were found inside the Thunderbird. Emergency medical service personnel testified that Appellant smelled of alcohol. Appellant admitted to drinking eight beers that night. At the hospital, Appellant refused to cooperate with police or hospital staff. The hospital, following its own procedures, placed Appellant in four-point restraints and drew a blood sample at 4:25 a.m. Results from testing Appellant's blood serum revealed a blood alcohol concentration (BAC) of 0.241%. At 6:15 a.m. additional blood was drawn from Appellant pursuant to a search warrant. KRS 189A.105(2)(b). Results from testing that sample revealed a BAC some four hours after the accident of 0.17%.

I. ADMISSION OF THE POLICE BLOOD AND URINE TEST.

Pursuant to the search warrant, the police drew a sample of blood and collected a urine specimen to determine if Appellant was intoxicated at the time of the accident. The trial judge overruled Appellant's pretrial motion to suppress the results of tests on these samples and allowed the Commonwealth to introduce that evidence at trial. Appellant claims error because too much time elapsed between the accident and the collection of the blood sample. Additionally, he argues that the admission of the results of the urine test was error as driving under the influence in Kentucky is measured through breath or blood, not urine. He further alleges that the trial court impermissibly allowed the Commonwealth to use the various tests to extrapolate Appellant's blood alcohol level at the time of the accident.

At the time of Appellant's prosecution. KRS 189A.010(1) stated in pertinent part:

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

(a) While the alcohol concentration in his blood or breath is 0.10 or more based on the definition of alcohol concentration in KRS 189A.005;

(b) While under the influence of alcohol.

Appellant asserts that the four hours between the accident (when he was last operating a motor vehicle) and the collection of his blood sample represents too great a lapse of time to prove he was intoxicated while operating a motor vehicle. In Commonwealth v. Wirth, Ky., 936 S.W.2d 78 (1996), we specifically declined to adopt a bright line rule with respect to "when the lapse of time between driving and testing for alcohol intoxication becomes so great as to prevent a rational trier of fact from determining guilt based thereon." Id at 84. Our views in that regard have not changed. Furthermore, nothing in the record indicates a reason to distrust these results. Hospital staff closely monitored Appellant from the moment he entered the emergency room. He had no opportunity to ingest additional alcoholic beverages so as to skew the test results. In fact, the delay benefitted Appellant by providing more time for his body to oxidize the alcohol in his system. The test results were properly admitted.

Nor was it error to admit the results of the urinalysis. KRS 189A.005(1) defines "alcohol concentration," the key term in finding a driver in violation of KRS 189A.010(1)(a), in terms of milliliters of blood or liters of breath. Appellant argues that since the definition does not include urine, it was error to admit the urine sample test results. However, the failure of KRS 189A.005(1) to mention urine does not affect the admissibility of urine sample evidence to prove guilt under KRS 189A.010(1)(b). We need not decide whether a jury could convict Appellant of violating the "per se" section of the statute, KRS 189A.010(1)(a), based on the results of a test of his urine sample; for this evidence was relevant in determining whether he was guilty of violating the "under the influence" section of the statute, KRS 189A.010(1)(b). The jury was instructed on both statutory bases of guilt. We also note that urine tests are contemplated by KRS 189A.103(1), (3), and (5).

Appellant's contention that the Commonwealth impermissibly used the various tests to extrapolate his BAC at the time of the accident is also without merit. In Wirth, supra, this Court stated "[e]xtrapolation evidence is not required for the Commonwealth to make a prima facie case of a [violation of KRS 189A.010(1)(a)]." Id. at 84 (emphasis added). However, nothing in this wording precludes the Commonwealth, or the defendant, from using extrapolation evidence to assist the trier of fact in its determinations.

II. THE BLOOD SERUM.

Before the Louisville police obtained the search warrant to procure the blood and urine samples, the hospital drew blood from Appellant pursuant to hospital procedures. This occurred at 4:25 a.m. An employee then centrifuged the sample precipitating the solid portion of the blood from the liquid portion (the serum). A lab technician then tested the blood serum for the presence of alcohol or drugs. The results, recorded at 5:40 a.m., revealed a BAC of 0.24%. Appellant raises four claims of error concerning the testing of his blood serum.

A. Chain of Custody.

Appellant alleges error because the Commonwealth failed to prove a complete chain of custody with respect to the centrifuge process. At trial, the phlebotomist who drew the blood and the lab technician who performed the actual testing testified as to the chain of custody. The only absent member of the chain of custody was the technician who centrifuged the sample. However, the technician who performed the testing further testified that in the centrifuge process the tube containing the sample is placed unopened in the centrifuge and spun down. Once complete, the tube is given to the testing technician, who is the first to open the sealed sample.

In Rabovsky v. Commonwealth, Ky., 97:1 S.W.2d 6 (1998), we thoroughly analyzed chain of custody law in Kentucky. As to blood, the chain of custody ensures that the sample tested was...