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Commonwealth v. Crosby

Court of Appeals of Kentucky

June 29, 2018



          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky John K. Carter Oldham County Attorney LaGrange, KY

          BRIEF FOR APPELLEE: John H. Harralson, III Louisville, Kentucky



          NICKELL, JUDGE.

         The Commonwealth appeals from an original action filed in the Oldham Circuit Court denying its petition for a writ of prohibition and mandamus. The Commonwealth urged the Circuit Court to determine the Oldham District Court had erroneously found the local police department had operated an unconstitutional traffic safety checkpoint and suppressed results of a blood alcohol content (BAC) test occurring in the checkpoint's wake. The Circuit Court concluded the petition was properly filed under Hoskins v. Maricle, 150 S.W.3d 1, 20 (Ky. 2004), but ultimately agreed with the District Court in determining the checkpoint did not comport with the Fourth Amendment. The Circuit Court further agreed suppression of a .135 BAC test result collected from John J. Spellman was proper because Officer Matthew Lay, a trained breathalyzer technician, failed to observe Spellman before administering the test-"at the location of the test for a minimum of twenty (20) minutes"-as required by KRS[1]189A.103(3)(a). Following review of the record, the briefs and the law, we affirm.

         On December 8, 2015, Sgt. James Brown of the Oldham County Police Department approved a traffic safety checkpoint at the Oldham/Jefferson County Line from 8:00 p.m. until 11:00 p.m. on December 11, 2015. According to an email sent by Brown on April 15, 2016, the purpose of the roadblock was to check for licenses, insurance and registration. Advance notice was not provided to the media, and signs were not posted along the roadway advising drivers they were approaching a checkpoint. No written police policy on checkpoints was produced.

         Six to seven officers gathered in a parking lot near Jucy's BBQ Restaurant on Highway 146 near Pewee Valley in Oldham County on the evening of December 11, 2015. All officers were dressed in uniforms and reflective vests. Each officer arrived in a separate police vehicle. Sgt. Brown, the Second Shift Supervisor, briefed the detail on how the checkpoint would be conducted and remained on site during the roadblock. Every vehicle was to be stopped and each driver was to be asked to produce a driver's license, proof of insurance and proof of registration. Upon supplying same, the driver was to be allowed to proceed. If illegal activity was suspected, the driver was to be asked to pull into the parking lot to allow traffic to continue flowing. If traffic became congested, the checkpoint was to be suspended.

         Officer Lay participated in the checkpoint. He had worked other roadblocks with Sgt. Brown, but never at this location. He considered the operation, which began at 8:00 p.m.-when it was dark-to be "highly visible," and heard no complaints from drivers about being surprised. Lights were activated on most police vehicles at the checkpoint to ensure safety of officers and the public.

         Officer Lay was paired with Officer Justin Flynn. As Spellman reached the checkpoint, Officer Flynn smelled alcohol and Spellman was asked to pull into the parking lot. When asked whether he had consumed any drinks, Spellman replied, "two beers." At that point, Spellman was given three field sobriety tests which he did not perform well. Officer Lay arrested Spellman at 10:22 p.m., handcuffed him behind his back, placed him in the backseat of Lay's cruiser, and began transporting Spellman to the Oldham County Jail-where the breathalyzer is located. En route, Officer Lay watched Spellman in the rearview mirror.

         At 10:26 p.m., Officer Lay reached the Pewee Valley railroad tracks, about twelve miles from the jail. At that point, he began a mandatory twenty-minute observation period, directing Spellman not to eat, drink, smoke or place anything in his mouth or up his nasal passages for the next twenty minutes. On reaching the jail, Officer Lay-still sitting in his cruiser with Spellman in the backseat-began typing Spellman's citation. At 10:43 p.m., Officer Lay read Spellman the implied consent form, after which Spellman declined to contact an attorney and agreed to take a breathalyzer test.

         Twenty minutes had expired when Spellman entered the BAC room. When asked whether he had brought anything up from his stomach in the last twenty minutes, Spellman indicated he had not. At 10:59 p.m., the BAC test was administered, after which Spellman was charged with operating a motor vehicle while under the influence of alcohol (DUI) pursuant to KRS 189A.010. Spellman refused both independent testing and an attorney.

         Defense counsel filed two suppression motions. One sought suppression of the checkpoint based on violations of the Fourth Amendment; Commonwealth v. Buchanon, 122 S.W.3d 565, 568 (Ky. 2003); and, Commonwealth v. Cox, 491 S.W.3d 167 (Ky. 2015). A second sought suppression of the BAC test result because the entire twenty-minute observation period had not occurred "at the location of the test" as statutorily mandated. "It has been stated that the purpose of the observation period is so the operator 'can testify positively that during this twenty-minute observation period defendant had nothing to eat or drink, did not regurgitate or smoke.' Tipton v. Commonwealth, Ky. App. 770 S.W.2d 239, 240 (1989) (citing Chemical Test Manual for Kentucky § 8.8 B (3))." Eldridge v. Commonwealth, 68 S.W.3d 388, 391 (Ky. App. 2001). "The clear purpose of the twenty-minute observation period is to ensure that any residual alcohol present in the mouth has dissipated so that the Breathalyzer® machine measures only the alcohol content of breath exhaled from the lungs." Id. at 392.

         A suppression hearing was held on August 2, 2016. Officer Lay, testifying as the Commonwealth's sole witness, confirmed part of the observation period occurred in his cruiser. It was undisputed Officer Lay did not observe Spellman a full twenty minutes at the location in which the test was given. Defense counsel argued Officer Lay could not have driven at night in the dark along a rural road and remained focused on ...

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