FROM DAVIESS CIRCUIT COURT HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 15-CR-00005
FOR APPELLANT: Brandon Neil Jewell Frankfort, Kentucky
FOR APPELLEE: Andy Beshear Attorney General of Kentucky Mark
D. Barry Assistant Attorney General Frankfort, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND K. THOMPSON, JUDGES.
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.
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.
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.
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.
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.
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.
was held on September 27, 2017. 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
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.
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.
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 ...