APPEAL
FROM BRECKINRIDGE CIRCUIT COURT HONORABLE ROBERT A. MILLER,
JUDGE ACTION NO. 15-CR-00034
BRIEF
FOR APPELLANT: Andy G. Beshear, Attorney General of Kentucky
David Michael Williams Leitchfield, Kentucky Crystal Thompson
Leitchfield, Kentucky Earlene Whitaker Wilson Leitchfield,
Kentucky
ORAL
ARGUMENT FOR APPELLANT: Earlene Whitaker Wilson Leitchfield,
Kentucky
BRIEF
AND ORAL ARGUMENT FOR APPELLEE: Alec G. Stone Brandenburg,
Kentucky
BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES.
OPINION
LAMBERT, D., JUDGE
The
Commonwealth brings this appeal from an interlocutory order
of the Breckinridge Circuit Court which granted the motion of
the Appellee, Julia A. Brown, to suppress the results of
blood alcohol testing. Having reviewed the record, we
conclude that the trial court improperly concluded that Brown
did not give express consent. Consequently, we reverse the
trial court's suppression order and remand the matter for
trial.
I.
FACTUAL AND PROCEDURAL HISTORY
On
December 26, 2014, at approximately 9:07 P.M. Central
Standard Time, as Brown drove near Hardinsburg, she lost
control and hit a tree. The crash killed her passenger,
Sheena McCarty, and severely injured Brown. Paramedic Raleigh
Shelton responded to the accident, and upon his arrival
observed Brown talking on her cellular phone. Shelton
testified that after determining McCarty had died, he
assessed Brown's injuries, though he was not directly
involved in her care. At some point, Shelton allegedly heard
Brown admit that she had been drinking. After rescue workers
extricated her from the vehicle, she was airlifted to
University of Louisville Medical Center for more intensive
treatment.
Hardinsburg
City Police Officer Justin Magness worked the accident scene
and was present when Shelton pronounced McCarty dead. Trooper
Jason Drane of the Kentucky State Police ("KSP")
was also present, and it was his call to the local KSP Post
which resulted in Trooper John Adams traveling from Nelson
County to meet Brown at University of Louisville Medical
Center to obtain a blood sample from her.
Adams
testified at the suppression hearing that he had arrived
before the helicopter and waited in the trauma room for
twenty to thirty minutes for Brown to arrive. Adams further
waited while doctors stabilized her. He noted the smell of
alcohol on Brown's breath as well as on her person. She
also had an obvious head injury, which Adams described as
"a deep gash on her forehead that parted her hair,
" and a broken leg. Adams twice testified that he
"allowed the medical staff to do their thing, " and
waited for a doctor's permission before speaking to
Adams. Brown was still strapped to a backboard when Adams
engaged her. He offered testimony that during this
conversation, Brown recalled that there had been a collision,
but neither recalled the specifics of the collision nor
understood why Adams was there.
Adams
proceeded to read the standard KSP implied consent warning to
her, which he also read into the record at the suppression
hearing. The warning, which is adapted from the language of
Kentucky Revised Statute ("KRS") 189A.105, includes
warnings that refusal to submit to testing would result in a
doubled jail sentence if convicted, her driver's license
being suspended, and being ineligible for an ignition
interlock license. Adams testified that he stopped after each
paragraph of the warning to ask Brown whether she understood
the warning, and she responded in the affirmative each time.
He then asked for permission to obtain a blood sample, and
"she told me that was fine." No written evidence
was entered into the record indicating her agreement, and
Brown did not testify at the suppression hearing.
Adams
testified that at approximately 11:46 P.M. Eastern Standard
Time, he opened the test kit and directed medical personnel
to draw the sample in his presence, of which he took custody.
Adams remitted the sample to the KSP Crime Laboratory at the
end of his shift. The lab determined Brown's blood
alcohol content was .125, well over the legal limit of .08.
Hospital
personnel drew a second sample of Brown's blood at 12:23
A.M. Eastern Standard Time, for the purpose of medical
treatment. Adams, having already left after obtaining the
first blood sample, was not present for that test, which
indicated a blood alcohol content of .164. Testimony in the
suppression hearing indicated that the KSP laboratory and the
hospital use two different "scales" for determining
blood alcohol content, with the hospital's scale
...