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Commonwealth v. Brown

Court of Appeals of Kentucky

May 18, 2018



          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



          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.


         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 ...

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