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Whitlow v. Commonwealth

Supreme Court of Kentucky

June 13, 2019

SUZANNE MARIE WHITLOW APPELLANT
v.
COMMONWEALTH OF KENTUCKY APPELLEE

          ON APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE NO. 17-CR-00146

          COUNSEL FOR APPELLANT: Jerry Lee Wright JERRY L. WRIGHT, P.S.C.

          COUNSEL FOR APPELLEE: Andy Be shear Attorney General of Kentucky William Robert Long, Jr. Assistant Attorney General Office of Criminal Appeals

         OPINION

         HUGHES, JUSTICE

         Suzanne Marie Whitlow appeals as a matter of right from the Fayette Circuit Court judgment sentencing her to twenty years in prison. Whitlow was driving while intoxicated in Lexington, Kentucky, when she struck and killed two pedestrians standing on a sidewalk. After the incident, Whitlow was transported to the hospital for minor injuries, and a police officer obtained a court order directing the hospital to test her blood for drugs and alcohol. Whitlow moved to suppress the blood test results, arguing that the "court order" was not a search warrant and therefore the testing violated her Fourth Amendment rights. The trial court denied her motion, and Whitlow entered a conditional guilty plea to four charges, including two counts of second-degree manslaughter, specifically preserving her right to appeal the denial of the suppression motion. Finding no error, we affirm the ruling of the trial court.

         FACTS AND PROCEDURAL HISTORY

         In the early morning hours of October 29, 2016, Whitlow operated a black Dodge vehicle which left the roadway and drove onto a city sidewalk, striking and killing a Louisville police officer and a University of Kentucky employee. After the incident, Whitlow was transported to the University of Kentucky Medical Center for treatment of minor injuries she sustained.[1]While at the hospital, a Lexington police officer met with Whitlow and immediately observed a strong odor of alcohol on her breath. The officer informed Whitlow of her rights and asked if she would be willing to speak with him. She gave verbal consent that she understood her rights and was willing to speak with the officer, but she refused to consent to the taking of a blood sample.

         After the officer's conversation with Whitlow, he prepared an affidavit titled "Affidavit in Support of and Petition for Court Order." The affidavit, in its entirety, states:

Comes the affiant, a peace officer of the Lexington Police Department, who personally appeared before the undersigned and being first duly sworn now on oath deposes and affirms the information contained herein is completely truthful based upon facts discovered during an open investigation and based on this information is seeking a court ordered blood draw from the below listed motor vehicle operator involved in a fatal motor vehicle collision pursuant to KRS 89A.105');">189A.105(3)(b).
Pursuant to KRS l89A.105(3)(b) affiant is seeking the following:
• Alcohol in the blood of; Whitlow, Suzanne, SSN (redacted), 01/21/90
• Controlled substance in the blood of; Whitlow, Suzanne, SSN (redacted), 01/21/90
• Controlled substance in the body of;
• Physical evidence in the body of;
• Controlled substance in the urine of;
Affiant has been an officer in the aforementioned agency for a period of 17 years and the information and observations contained herein were received and made in his/her capacity as an officer thereof.
On the 29th day of October, 2017 (sic) at approximately 2:34 am, affiant received information from/observed:
A Collision Reconstruction Unit call out was initiated concerning a collision which occurred on South Upper Street between Bolivar and Scott Street. The collision involved a black 2010 Dodge passenger vehicle versus two pedestrians. Both pedestrians were killed as a result of the collision.
Ms. Suzanne Whitlow was the only person present with the vehicle upon officers' arrival and was transported to the University of Kentucky Emergency Room to be checked out for injuries; she was bleeding from the face. Ms. Whitlow made conflicting statements to initial responding officers indicating she was not driving at the time of the collision but later stated that she ...

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