Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCarthy v. Commonwealth

Court of Appeals of Kentucky

June 14, 2019



          BRIEF FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky

          BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky



          COMBS, JUDGE.

         Appellant, Jared Ladan McCarthy (Jared), was convicted of driving under the influence, fourth offense; he was sentenced to two-years' imprisonment. On appeal, he argues that the trial court erred in allowing the Commonwealth to introduce evidence of his refusal to take a warrantless blood test and in giving the jury an Allen charge. After our review, we affirm in part, reverse in part, and remand.

         We limit our discussion of the record to the issues before us. On November 1, 2014, Jared was arrested for DUI by Officer Benjamin Fleury of the Owensboro Police Department. Officer Fleury transported him to the hospital for a blood test, which he refused. A Daviess County grand jury indicted Jared for DUI 4th offense in Five Years, Aggravated.

         On August 29, 2016, Jared filed a motion in limine to exclude introduction of his refusal to take a warrantless blood test in reliance upon Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). Birchfield involved three consolidated cases. One of the Petitioners, Mr. Birchfield, refused to allow his blood to be drawn after he was arrested for DUI; his refusal exposed him to criminal penalties under North Dakota law. He entered a conditional guilty plea to a misdemeanor violation of North Dakota's refusal statute and argued that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. The state district court rejected his argument, and the North Dakota Supreme Court affirmed.

         The United States Supreme Court granted certiorari. The Court concluded that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving; however, it reached a different conclusion regarding blood tests:

Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents' alternative argument that such tests are justified based on the driver's legally implied consent to submit to them. It is well established that a search is reasonable when the subject consents, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines, 569 U.S. 1, ___ ___, 133 S.Ct. 1409, 1415–1416, 185 L.Ed.2d 495 (2013); Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___, 133 S.Ct., at 1565–1566 (plurality opinion); Neville, supra, at 560, 103 S.Ct. 916. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.

Id., 136 S.Ct. at 2185. (Emphasis added). The Court continued as follows:

Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication … that a breath test would have failed to satisfy the State's interests in acquiring evidence to enforce its drunk-driving laws . . . . [W]e conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed.

Id. at 2186.

         On August 31, 2016, the trial court conducted a hearing on Jared's motion. The court prohibited the Commonwealth from using Jared's refusal as evidence of intoxication or as an aggravating circumstance, but it did permit the Commonwealth to use the fact of his refusal in order to explain why there was no test result. However, the court prohibited Jared from asking Officer Fleury why he did not obtain a warrant for a blood test.

         The trial court's written order, entered on September 7, 2016, provided as follows:

IT IS HEREBY ORDERED AND ADJUDGED that the Defendant's refusal to take the warrantless blood test shall not be used as an enhancement during the trial. The Commonwealth can introduce the refusal to explain the absence of any scientific evidence but cannot use the refusal to imply any motivation as to why the Defendant refused the test. The Commonwealth cannot use the refusal as implying guilt against the Defendant in its case in chief.

(Emphasis original).

         Trial was held on September 27, 2017.[1] At approximately 4:35 p.m., the jury was dismissed to deliberate. The video record picked back up at approximately 5:58 p.m., showing the jurors returning to the courtroom. The court asked the name of the foreperson, and someone responded that they had not yet elected one. The trial court then addressed the jury as follows:

You have, the first thing I told you in the instructions, first thing you do, is go back and elect a foreperson. Because that's who I'm going to speak with. Also, you have a duty to reach a verdict, if you can, if at all possible. I want you to go back, please follow the instructions of the court, elect a foreperson to orchestrate your discussion. And, come back when you are able to reach a verdict or if you have the same conclusions. Thank you.

At 6:15 p.m., the jury returned to the courtroom to watch the officer's dashcam video again. At 6:39 p.m., the jury again returned to the courtroom and returned a verdict. Jared was convicted of DUI, fourth offense within five years. He was sentenced to two (2) years.

         In his appeal, Jared argues that although the trial court sustained his motion in limine in part, it erred in ruling that the Commonwealth could tell the jury that he refused to submit to a blood test. He reasons that the Fourth Amendment establishes that "suppressed evidence is to be suppressed." He also contends that the trial court erred in precluding him from introducing evidence or from arguing that the police could have obtained a warrant.

         Our review of a ruling on a suppression motion is two fold. "The trial court's factual findings are reviewed for clear error and are deemed conclusive if supported by substantial evidence. And the trial court's application of the law to the facts found is reviewed de ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.