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Commonwealth v. Morgan

Court of Appeals of Kentucky

August 23, 2019



          BRIEFS FOR APPELLANT: Thomas Edge Newport, Kentucky

          BRIEF FOR APPELLEE: Marvin A. Knorr, III Covington, Kentucky




         The Commonwealth of Kentucky appeals from the Campbell Circuit Court's order reversing and remanding the Campbell District Court's order holding that William Morgan's statutory rights under Kentucky Revised Statutes (KRS) 189A.105(4) were violated subsequent to his arrest for driving under the influence of alcohol ("DUI"). The circuit court held that the violation of Morgan's statutory rights mandated suppressing the results of Morgan's breathalyzer test.

         For the following reasons, we affirm the Campbell Circuit Court.


         On March 27, 2017, an officer with the Campbell County Police Department arrested William Morgan and charged him with DUI. Upon arrival at the Campbell County Detention Center, the officer took Morgan into a room to perform a breathalyzer test. Before administering the breathalyzer test, the officer read the implied consent form to Morgan, which included a warning that Morgan could elect to obtain an independent blood test if he so chose. Morgan ultimately consented to the breathalyzer test, and the officer then began the twenty minute observation period required prior to conducting the breath test.

         Just before the officer administered the breath test, Morgan mentioned needing to use the restroom. Approximately eleven minutes after Morgan took the breath test, he again stated that he needed to use the restroom. The officer continued asking Morgan questions and inputting information into his computer, however, and did not take Morgan out to his cruiser until approximately twenty-two minutes after he submitted to the breath test. The officer printed the citation in his cruiser and thereafter turned the body camera off. Based on statements made by the officer on the footage, the circuit court stated its belief that Morgan was thereafter taken to booking and allowed to use the restroom after the body camera video footage ended.

         The arresting officer did not read the independent blood test warning to Morgan a second time after conducting the breath test. Further, on the implied consent form, the officer checked the box that Morgan had declined an independent blood test and wrote on the signature line that Morgan "Did not sign due to needing to rush to the restroom." Morgan ultimately blew a 0.187 on the breath test.

         Prior to Morgan's trial, the district court held a suppression hearing, with Morgan arguing that the arresting officer deliberately disregarded KRS 189A.105(4)'s requirement to read a second required warning concerning his right to an independent blood test. At the suppression hearing, the arresting officer testified that he read the warning to Morgan concerning the independent blood test the first time but failed to read it the second time because Morgan needed to rush to the restroom. While Morgan argued that the failure to read the warning a second time required suppression of the breath test results because the officer violated a statutory mandate, the Commonwealth asserted that Morgan put forth no evidence that the officer deliberately disregarded the statute.

         The district court denied Morgan's motion to suppress. In its order, the district court found that it was uncontested that the officer failed to give the second KRS 189A.105(4) independent blood test warning. The district court also made oral findings on the record that it was relying on the fact that the officer believed that Morgan needed to use the restroom, which, the trial court stated, "was not in bad faith." Thereafter, Morgan entered a conditional guilty plea, preserving the right to appeal the issue of whether the officer deliberately disregarded the KRS 189A.105(4) mandate.

         Morgan subsequently filed a notice of appeal with the circuit court. The circuit court entered an order reversing the trial court's denial of Morgan's motion to suppress, stating that the trial court's findings did not support its conclusion. The circuit court found that the officer's justification for his failure to read the warning a second time did not hold up, because he continued inputting information into his computer and asking Morgan questions for approximately twenty-two minutes after Morgan submitted to the breath test and after Morgan requested to use the restroom. While not rising to the level of "bad faith," the circuit court found that the foregoing time lapse, as well ...

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