FROM OLDHAM CIRCUIT COURT HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO 16-CI-00502
FOR APPELLANT: Andy Beshear Attorney General of Kentucky John
K. Carter Oldham County Attorney LaGrange, KY
FOR APPELLEE: John H. Harralson, III Louisville, Kentucky
BEFORE: J. LAMBERT, NICKELL, AND TAYLOR, JUDGES.
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 KRS189A.103(3)(a). Following
review of the record, the briefs and the law, we affirm.
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.
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.
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.
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.
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
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
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.
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