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Commonwealth v. Riker

Court of Appeals of Kentucky

September 8, 2017

COMMONWEALTH OF KENTUCKY APPELLANT
v.
JAMES E. RIKER, JR. APPELLEE

          RENDERED: AUGUST 18, 2017

         DISCRETIONARY REVIEW GRANTED FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA GOODWINE, JUDGE ACTION NO. 14-XX-00026

          BRIEF FOR APPELLANT: Carlos A. Ross Lexington, Kentucky

          BRIEF FOR APPELLEE: John L. Tackett Lexington, Kentucky

          BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES.

          OPINION

          COMBS, JUDGE:

         This case involves an evidentiary issue arising from an arrest of the appellee for driving under the influence (DUI). As there appears to be an issue of first impression, we granted Discretionary Review of the Fayette Circuit Court's Opinion and Order, which reversed the District Court's denial of a Motion to Suppress intoxilyzer results and remanded. The Circuit Court concluded that the excessively high cost of an independent blood test at University of Kentucky Medical Center effectively precluded the Appellee, James E. Riker, Jr. (Riker), from obtaining the statutorily mandated test that potentially might result in producing in exculpatory evidence. The circuit court held that the excessive cost of the blood test constituted a denial of due process. After our review, we affirm.

         On August 4, 2014, Riker was arrested for DUI after he hit a parked car in Lexington, Kentucky. The Circuit Court's Opinion and Order provides a concise summary of the underlying facts:

When Officer Steele came on the scene, he detected an odor of alcohol on Riker. The Officer asked Riker to submit to a portable breath test (PBT), which Riker did and the PBT reflected the presence of alcohol. Riker was arrested for Driving Under the Influence [DUI] and taken to the Fayette County Detention Center [FCDC].
[There], Officer Steele indicated that he read the implied consent warning to Riker and asked him to take the intoxilyzer test at the conclusion of the twenty minute observation period. Riker was cooperative and complied the Officer's request and took the breath test. The intoxilyzer result measured over the per se limit of intoxication. The Officer read the remaining portion of the implied consent card and asked Riker if he wished to obtain a blood test at the University of Kentucky Medical Center (UKMC). Riker orally indicated that he wanted a blood test and signed the portion of the implied consent card requesting that his blood alcohol be tested. UKMC and Good Samaritan Hospital, a branch of UKMC, are the only options for a DUI suspect to obtain blood evidence. Both entities charge $450.00 pre-paid fee for the blood test.

         Officer Steele asked Riker how much money he had with him. Riker responded that he had over $100.00 but that he did not possess a credit card. Officer Steele did not believe that would be enough money, but he was not sure of the exact cost of the test. He drove Riker to the hospital and took him to the receptionist desk to discuss payment. The circuit court summarized as follows:

The Officer testified that the cost of obtaining blood evidence was conveyed by the receptionist to Riker. Next Riker told Officer Steele, "No, take me back to jail." The Officer indicated that he felt the cost was the reason that Riker declined to obtain blood evidence from UKMC.
Officer Steele testified that during his employment, he had witnessed persons who were in need of medical treatment and that Riker did not appear to be in need of emergency medical treatment. Steele further testified that Riker did not receive medical treatment when he was taken back to FCDC. Officer Steele also acknowledged that the blood result could have been lower than the intoxilyzer-breath test results.
[Riker] … filed … affidavits of several UKMC employees … instead of [their] physically appearing in court. According to the affidavits, UKMC, a state agency, will not provide a citizen suspected of DUI with an independent blood-evidence test unless he or she prepays $450.00. UKMC bills its own University police officers $15.00 for the same blood evidence test which the Officer does not have to pay at the time the test is conducted. [Riker] makes the point that UKMC charges persons suspected of DUI 300% more than it does its own officer for potentially exculpatory evidence. Additionally, it should be noted that affidavits from medical providers in neighboring counties filed into the record below show that DUI suspects in Carroll County are charged $61.00 and in Woodford County they are charged $78.75.
UKMC's explanation of the $450 charge is that the DUI suspects must be assessed by a triage nurse to ensure that a medical emergency is not present. The representative stated that itemized fees were 1) $30.00 for the venipuncture; 2) $175.00 to perform the serum alcohol test; and 3) $245.00 for an ED Level A visit to be assessed by a triage nurse.

         (Citations to record omitted; bold-face emphases added).

         On September 10, 2014, Riker filed a Motion to Suppress Intoxilyzer Results and Motion for Dismissal. The matter was heard on October 2, 2014. Although the District Court was "not happy" about what U of K was charging and was bothered that police officers were charged a lot less than individual citizens, it concluded that the officer did everything required under the law and overruled Riker's Motions. Riker subsequently entered a conditional guilty plea and filed Notice of Appeal to the Circuit Court.

         On March 29, 2016, the Fayette Circuit Court entered an Opinion and Order reversing and remanding, ...


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