ON DISCRETIONARY REVIEW FROM WEBSTER CIRCUIT COURT HONORABLE C. RENÉ WILLIAMS, JUDGE ACTION NO. 10-XX-00004
BRIEF FOR APPELLANT: Amealia R. Zachary Dixon, Kentucky.
BRIEF FOR APPELLANT: Jack Conway Attorney General Jeffrey A. Cross Assistant Attorney General Frankfort, Kentucky
BEFORE: CLAYTON, STUMBO, AND THOMPSON, JUDGES.
This is an appeal from the Webster Circuit Court's decision affirming Webster District Court's ruling on the issue of whether a blood test is warranted when a breathalyzer would be sufficient. Based upon the following, we reverse the decision of the Webster Circuit Court and remand this action for findings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
The appellee, Christopher Duncan, was arrested on March 31, 2007, for Driving Under the Influence ("DUI"). The arresting officer administered a portable breathalyzer test ("PBT"), which indicated a presence of alcohol. Duncan also failed a field sobriety test. The officer then asked Duncan to submit to a blood test, which Duncan refused. He did agree, however, to submit to a breathalyzer test at the station. The officer refused, and Duncan was arrested.
On October 23, 2007, Duncan filed a motion to dismiss the DUI charge with the Webster District Court. Duncan argued that the officer's request that he submit to a blood test rather than a breathalyzer or urine test was in error. On February 26, 2008, the Webster District Court denied Duncan's motion. Duncan then appealed this ruling to the Webster Circuit Court, which affirmed it.
Duncan moved a panel of this court for discretionary review of the Webster Circuit Court's affirmation of the district court ruling. Our court denied the motion for discretionary review, holding that the appeal was not ripe for review because Duncan had not been found guilty of the DUI charge.
On July 10, 2010, Duncan pled guilty to DUI, Second Offense, reserving the right to appeal the issue of whether the officer's actions requiring him to submit to a blood test were in error. Duncan then filed an appeal with the Webster Circuit Court which held that, pursuant to the ruling in Beach v. Commonwealth, 927 S.W.2d 826 (Ky. 1996), an arresting officer has the option as to which test may be given in a DUI case. It concluded that the Supreme Court of Kentucky had already decided the issue raised by Duncan and that the arresting officer is the one who chooses which test to administer under KRS 189A.103(1).
The Webster Circuit Court councluded that Duncan's other constitutional issues were without merit. Specifically, it found that the United States Supreme Court has held that a blood test does not violate the Federal Due Process Clause, the Fifth Amendment, the Sixth Amendment or the Fourth Amendment. Schmerber vs. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Thus, the Circuit Court affirmed the decision of the Webster District Court. Duncan then brought a second motion for discretionary review which this Court granted.
STANDARD OF REVIEW
Whether the law of Kentucky allows an arresting officer to choose whether a suspect be offered a blood test rather than a breathalyzer test is a matter of law. We review questions of law de novo. Western Kentucky Coca-Cola Bottling ...