ON REVIEW FROM COURT OF APPEALS CASE NO. 2011-CA-000636-MR WEBSTER CIRCUIT COURT NO. 10-XX-00004
COUNSEL FOR APPELLANT: Jack Conway Attorney General of Kentucky, Jeffrey Allan Cross Assistant Attorney General
COUNSEL FOR APPELLEE: Amealia R. Zachary
During the afternoon of March 31, 2007, Appellee, Christopher Duncan was stopped by Sergeant Brent McDowell of the Providence Police Department for operating his motor vehicle without the use of a seatbelt and for crossing the center lane of traffic. Appellee smelled strongly of alcohol, had bloodshot eyes, and admitted to drinking three beers prior to driving. Sergeant McDowell conducted a series of field sobriety tests, all of which Appellee failed. Sergeant McDowell also administered a Portable Breathalyzer Test ("PBT") which detected the presence of alcohol on Appellee's breath. As a result, Sergeant McDowell placed Appellee under arrest. In an effort to ascertain Appellee's Blood Alcohol Concentration level ("BAC"), Sergeant McDowell asked Appellee if he would submit to a blood test. Appellee refused to consent and instead requested that Sergeant McDowell utilize a breathalyzer test to ascertain his BAC. Sergeant McDowell declined Appellee's request and transported Appellee to the Webster County Jail.
Appellee was subsequently charged with driving under the influence ("DUI") of alcohol, third offense. On October 23, 2007, Appellee filed a motion with the Webster District Court seeking to dismiss the DUI charge. As grounds for his motion, Appellee claimed that Sergeant McDowell violated Kentucky Revised Statute ("KRS") 189A. 103 by requesting his permission to administer a blood test prior to administering a breathalyzer test. In support of his argument that breathalyzer testing is the preferred testing method, Appellee noted that the extraction of his blood is considered a seizure within the meaning of the Fourth Amendment, and, therefore could not have been tested absent his consent or Sergeant McDowell's attainment of a warrant. Furthermore, Appellee claimed that if he was provided a breathalyzer test, as he requested, the results would have exonerated him from the charge.
The Webster District Court denied Appellee's motion to dismiss by order dated February 26, 2008. The district court cited KRS 189A. 103(1), known as Kentucky's Implied Consent law, and Beach v. Commonwealth, 927 S.W.2d 826 (Ky. 1996) and concluded that Sergeant McDowell had "the option as to which test may be given in a DUI case." Additionally, the district court declared that Sergeant McDowell was free to request a breathalyzer, urine, or blood test in any order, and in any combination he so desired. Appellee appealed to the Webster Circuit Court, who affirmed the district court's order. Appellee sought further review, which the Court of Appeals denied because it believed the case was not ripe for review since Appellee had not been found guilty of committing any crime.
On July 10, 2010, Appellee pled guilty to the amended charge of DUI, second offense. As a condition of Appellee's plea, he reserved the right to appeal the issue of whether Sergeant McDowell violated Kentucky's Implied Consent law by denying him a breathalyzer test and instead requesting a blood test. Accordingly, Appellee once again began the appeals process. The Court of Appeals subsequently accepted Appellee's motion for discretionary review and on April 19, 2013, issued its order affirming the circuit court's denial of Appellee's motion to dismiss. Duncan v. Commonwealth, 2011-CA-000636 (Ky. App. April 19, 2013). Like the courts below it, the Court of Appeals ruled that nothing in Kentucky's Implied Consent law prevents an officer, who is investigating an alcohol-related DUI, from using a blood test as the initial BAC testing method. In formulating its decision, the Court of Appeals relied on the plain language of KRS 189A.103 and Beach, 927 S.W.2d 826.
On April 17, 2013, a mere two days before the Court of Appeals issued the above-referenced opinion, the U.S. Supreme Court rendered its opinion in Missouri v. McNeely, 133 S.Ct. 1552 (2013). Appellee, believing that McNeely overturned Beach and mandated the, reversal of the district and circuit courts' rulings, filed a petition requesting that the Court of Appeals reconsider its opinion. On July 19, 2013, the Court of Appeals granted Appellee's petition and withdrew its April 19, 2013, opinion affirming the denial of Appellee's motion to dismiss. In its place, the Court of Appeals issued a new opinion which reversed the circuit court's holding and remanded the case back to the district court. Without explanation, the Court of Appeals reasoned that McNeely was not only controlling, but applicable to the issue before the court. The Commonwealth sought discretionary review with this Court, which we subsequently granted.
The facts of this case are not in contention and the only inquiry before the Court is one of statutory interpretation. Consequently, this Court will conduct a de novo review. Artrip v. Noe, 311 S.W.3d 229, 231 (Ky. 2010).
Appellee was charged with operating a motor vehicle under the influence of alcohol as proscribed in KRS 189A.010(l)(a). The elements of this crime are described as follows:
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle;
Id. The General Assembly enacted Kentucky's Implied Consent law, found in KRS 189A. 103(1), which provides that by virtue of driving on Kentucky's roadways, a motor vehicle operator implicitly consents to the testing of his or her breath, blood, and urine for the purpose of determining the individual's BAC. Of course, Kentucky's Implied Consent law is not absolute. The driver has the freedom to refuse to submit to any form of testing. See KRS 189A. 104. However, refusal to submit to testing can result in the immediate suspension of the driver's license and a double ...