REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-000601-MR
FAYETTE CIRCUIT COURT NOS. 14-XX-00026 AND 14-T-19548.
COUNSEL FOR APPELLANT: Andy Beshear, Attorney General of
Kentucky, Carlos Aundra Ross, Special Assistant Attorney
COUNSEL FOR APPELLEE: John Lindsay Tackett.
2:30 a.m. on August 4, 2014, Lexington Police Officer Michael
Steele responded to the scene of an accident in which
Appellee, ("Riker"), was observed driving his
vehicle into a parked car on Jersey Street in Lexington,
Kentucky. Detecting the odor of alcohol on Riker, Officer
Steele asked Riker to submit to field sobriety testing and a
portable breath test ("PBT"). Riker agreed to do
so. He failed the field sobriety testing and registered a
.281 blood alcohol level on the PBT. After arresting Riker
and transporting him to the Fayette County Detention Center,
Officer Steele read the pertinent portion of the statutory
implied consent warning to Riker and asked him to submit to
an intoxilyzer test after the requisite 20-minute waiting
period. Riker agreed to do so. The result of that test
administered at approximately 3:45 a.m. was a .266 blood
to Kentucky Revised Statute (KRS) 189A. 103(7) and KRS 189A.
105(4), Officer Steele then asked Riker if he desired an
independent blood test at his expense at the University of
Kentucky Medical Center (UKMC). Riker responded in the
affirmative and was then transported by Officer Steele to
UKMC. Upon arrival, the hospital receptionist informed Riker
that the cost would be $450. Riker only had $100 dollars on
him at the time. Since this was not enough to pay for the
test, Riker informed Officer Steele to "take me back to
an evidentiary hearing, the Fayette District Court denied
Riker's motions to suppress his .266 intoxilyzer result
and to dismiss his third offense DUI charge. On appeal, the
Fayette Circuit Court reversed, concluding that Riker had
been denied his statutory right to obtain an independent
blood test. The court also determined that Riker's right
to due process had been violated since the results of the
independent blood test may have provided him with exculpatory
evidence. The circuit court ordered that the results of the
blood alcohol tests obtained by the police be suppressed. The
Court of Appeals unanimously affirmed the circuit court. We
granted discretionary review.
legal issue in this case concerns the interpretation and
application of two statutes permitting DUI suspects to obtain
an independent blood test. For the following reasons, we
reverse the decision of the Court of Appeals.
construction is a matter of law which requires de novo review
by this Court. Hearn v. Commonwealth, 80 S.W.3d 432,
434 (Ky. 2002) (citing Bob Hook Chevrolet Isuzu, Inc. v.
Commonwealth Transp. Cabinet, 983 S.W.2d 488 (Ky.
1998)). Claims under the Fourteenth Amendment's Due
Process Clause are also reviewed de novo. Caesars
Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 54 (Ky.
are two statutes at issue here: KRS 189A. 103(7) and KRS
189A. 105(4). The former permits a DUI suspect to have a
medical professional of his or her own choosing to administer
a "test or tests in addition to any tests administered
at the direction of the peace officer." KRS 189A. 105(4)
is similar but more specific. It provides:
Immediately following the administration of the final test
requested by the officer, the person shall again be informed
of his right to have a test or tests of his blood performed
by a person of his choosing described in KRS 189A. 103 within
a reasonable time of his arrest at the expense of the person
arrested. He shall then be asked "Do you want such a
test?" The officer shall make reasonable efforts to
provide transportation to the tests.
plain language of this section lists three requirements: 1)
that the officer inform the suspect of his or her right to
have the independent test or tests performed; 2) the officer
must specifically ask "[d]o you want such a test?";
and 3) that the officer "make reasonable
efforts to provide transportation to the
tests." Id. (Emphasis added). The only portion
of this statute that is remotely ambiguous is the latter. In
any event, the reasonableness of the officer's efforts to
provide transportation is not at issue in the present case.
No other express provision of the ...