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Commonwealth ex rel. Logan County Attorney v. Williams

Court of Appeals of Kentucky

September 20, 2019



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

          BRIEF FOR APPELLEE: Joe W. Hendricks, Jr. Russellville, Kentucky



          NICKELL, JUDGE.

         The Commonwealth appeals a Logan Circuit Court order denying its petition for a writ of prohibition to prevent enforcement of a suppression order. The underlying issue is whether the Logan District Court properly suppressed a blood alcohol concentration ("BAC") result collected from Eladio Ortiz, a Spanish-speaking person suspected of drunk driving who was read Kentucky's implied consent law in English before submitting to a blood draw. The ultimate question is how law enforcement officers inform suspected drunk drivers of the right to refuse blood, breath or urine testing and the consequences of submitting to and refusing such testing as required by KRS[1] 189A.105. The district court found Ortiz did not have sufficient command of the English language to be "informed" of his rights under Kentucky's implied consent law by an officer's reading of the warning to him in English and suppressed the BAC result, a decision with which the circuit court agreed and denied the Commonwealth's petition for a writ of prohibition. Following review of the briefs, record and law, we disagree with both lower courts and reverse and remand for further proceedings.


         In the early morning hours of September 10, 2016, a citizen reported seeing a vehicle operating on the wrong side of Hopkinsville Road in Logan County. Russellville Police Officer Chad Eggleston responded, observed the vehicle drop off the right-hand shoulder of the road, and stopped the car around 2:20 a.m. As Officer Eggleston-wearing a body camera-approached the vehicle, he noticed a strong odor of alcohol on both the driver, Ortiz, and the car.

         According to Officer Eggleston, when Ortiz-the sole occupant- exited the vehicle, he was "very unsteady" on his feet, appeared to be highly intoxicated, and had an open alcoholic beverage container in the car. When the officer asked Ortiz, "Do you understand what I'm saying, " Ortiz responded, "Yes." After Ortiz said he had consumed "a little [cerveza]"[2] at work, Officer Eggleston said, "well, we're gonna do some tests. Can you understand me enough to do the tests, " to which Ortiz responded, "I understand." Ortiz was unable to complete the walk-and-turn test. When directed to do the one-leg stand, he attempted to repeat the walk-and-turn test, prompting this exchange:

Officer: Did you understand what I asked you to do? Yes?
Ortiz: Yes.
Officer: You did understand me?
Ortiz: Yeah, Yeah.
Officer: OK, you did understand me? You didn't do it.

         Thereafter, Ortiz failed the horizontal gaze nystagmus test even though a second officer demonstrated how it was to be performed. Although unable to follow verbal commands to successfully complete the three field sobriety tests, Ortiz stated-in English-he understood the officer's directions. A preliminary breath test showed the presence of alcohol. Believing Ortiz to be highly intoxicated, Officer Eggleston placed him under arrest, handcuffed him, and transported him to Logan Memorial Hospital where he read Kentucky's implied consent warning aloud in English and Ortiz agreed to have his blood drawn by medical personnel. The test revealed a BAC of .233. Ortiz was charged with operating a motor vehicle under the influence of alcohol-first offense-and having no operator's license.[3]

         Six months after the traffic stop, on March 9, 2017, arguing Ortiz did not understand English and did not understand he could refuse testing, counsel moved to suppress Ortiz' BAC result. Alternatively, counsel moved to exclude evidence of the failed field sobriety tests.

         A suppression hearing was convened during which Officer Eggleston testified as previously recounted. Kimberly Guzman, a friend and former co-worker of Ortiz, testified Ortiz routinely nods, smiles and agrees when he hears English, but the arresting officer should have known Ortiz clearly did not understand his instructions. Her testimony was unrefuted.

         After watching body camera video of both the traffic stop (showing Ortiz' occasional responses in English, body language and demeanor) and the subsequent blood draw at the hospital during which Ortiz spoke about his family in English, and hearing argument of counsel, the Logan District Court found Ortiz was unable to sufficiently understand English to have been "informed" of the implied consent law and its associated rights. The district court described the video as rife with:

[the officer] using body language and hand gestures to communicate with [Ortiz]; [the officer] speaking slowly, in broken English and with a smattering of Spanish; [Ortiz] answering questions in Spanish that were unresponsive and incongruous; [Ortiz'] repeated responses of, "yeah", "huh", or "um"; and [Ortiz] mumbling in Spanish.

         The district court further found the arresting officer "knew" Ortiz could not speak English or "had a very limited grasp of the English language which would prevent [him] from informing [Ortiz] of the implied consent law and rights contained therein." The district court found the arresting officer used the tools provided to him but violated the implied consent statute by not "informing" Ortiz in a way that "might" have avoided the search or resulted in a less abusive search. The district court suppressed the BAC result, writing:

All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature and all words and phrases shall be construed according to the common and approved usage of language. KRS 446.080(1) & (4). If the law does not afford non-English speakers the same right to be informed then the result would render the statute and the Legislature's mandate to inform meaningless and would incentivize law enforcement and judicial practices that do not conform to the notions of fair play and substantial justice.

         While suppressing the BAC result, the district court found Officer Eggleston had probable cause to make both the stop and the arrest because he had personally observed Ortiz drive the vehicle off the right-hand shoulder of the roadway in a careless or reckless manner. The district court allowed the prosecution to go forward based on Officer Eggleston's lay opinion of Ortiz' level of intoxication.

         Alleging irreparable injury, the Commonwealth petitioned the Logan Circuit Court for a writ of prohibition to prevent enforcement of the suppression order. After hearing argument, the circuit court affirmed the district court's ruling, noting KRS 189A.105 does not merely require information be recited in English, but specifically requires the person suspected of drunk driving be "informed" of the consequences of submitting to testing as well as refusing testing. In denying the writ, the circuit court wrote,

[w]here it is clear a person is not comprehending the officer, further inquiry and a new approach may be warranted. Judicial notice is taken that computer programs and cell phone apps are currently available to translate messages into most languages. If the person is deaf, written communications may be necessary to insure that the person is informed. Investigation of those who may be impaired sometimes [sic] a flexible approach.
Any other interpretation would make meaningless the statutes [sic] direction to actually inform the person. This requirement not only pertains to those who do not speak English, but also the deaf, mentally ill or medically impaired. The officer must take reasonable measures to be certain the person is actually informed of the consequences of a decision to refuse the test or take it, and, perhaps most importantly, the right to attempt to contact counsel prior to making that decision.

         Against this backdrop we consider how a person is "informed" by law enforcement of the implied consent law and its consequences, and whether suppression was necessary.


         Granting or denying a writ of prohibition is within the sound discretion of the court weighing the petition. Commonwealth v. Peters, 353 S.W.3d 592 (Ky. 2011) (citing Haight v. Williamson, 833 S.W.2d 821, 823 (Ky. 1992)). We review the Logan Circuit Court's denial of the petition for abuse of discretion. If challenged, we would review its factual findings for clear error. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). Because interpreting KRS 189A.105 "is purely a legal issue, our review [of the court's application of the law] is de novo." Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky. App. 2003).

On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment . . . or to attempt to cure any omissions.

Id. (internal quotation marks and citations omitted). In conducting our review, "[a]ll statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature[.]" KRS 446.080(1). Throughout our analysis we are mindful the purpose of the implied consent law is to "facilitate obtaining evidence of driving while under the influence." Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996). BAC begins dissipating upon full absorption in the body and continues declining until eliminated. Missouri v. McNeely, 569 U.S. 141, 152, 133 S.Ct. 1552, 1560-61, 185 L.Ed.2d 696 (2013) (collecting cases). Prompt collection is necessary for the sample to have value.

         Kentucky's implied consent law is codified in KRS 189A.103.[4] By operating or physically controlling a vehicle in Kentucky, a person consents-upon request of an officer-to the testing of his blood, breath or urine-or any combination of the three-to determine alcohol concentration or impaired driving ability when drunk driving[5] is reasonably suspected. Commonwealth v. Brown, 560 S.W.3d 873, 878 (Ky. App. 2018) (citing KRS 189A.103; Helton v. Commonwealth, 299 S.W.3d 555, 559 (Ky. 2009)). Considering the citizen's report of a vehicle being operated on the wrong side of the road, and Officer Eggleston's personal observation of the vehicle dropping off the right-hand shoulder of the road, Ortiz was reasonably suspected of drunk driving.

         The real focus of this appeal is KRS 189A.105 which reads in relevant part:

(2) (a) At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests his or her license will be suspended by the court at the time of arraignment, and he or she will be unable to obtain an ignition interlock license during the suspension period; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that although his or her license will be suspended, he or she may be eligible immediately for an ignition interlock license allowing him or her to drive during the period of suspension and, if he or she is convicted, he or she will receive a credit toward any other ignition interlock requirement arising from this arrest; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the 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.
(3) During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person's attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
4) 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.

(Emphases added.) The specific question we address is how law enforcement officers inform one suspected of drunk driving of the right to refuse testing and its attendant consequences.

         The Commonwealth acknowledges it may be preferable to inform a non-English-speaker suspected of drunk driving of the implied consent warning in his native language, but maintains it is not statutorily required. The Commonwealth contends it is adequate to read the warning to the driver in English because there is no requirement he understand the warning. Relying on Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992) (citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)), the Commonwealth notes whether a suspected drunk driver voluntarily consents to testing "is to be determined by an objective evaluation of police conduct and not by the defendant's subjective perception of reality." Here, there is neither a suggestion nor a finding Officer Eggleston overreached during his interaction with Ortiz. Moreover, viewing the body camera footage, we heard Ortiz converse with the officer in English and respond appropriately in English indicating he had some understanding of Officer Eggleston's words. Citing Commonwealth v. Bedway, 466 S.W.3d 468 (Ky. 2015), the Commonwealth further argues even if Ortiz' statutory rights were violated, suppression was not automatically required. In contrast, Ortiz posits to satisfy KRS 189A.105(2)(a) and (3), officers must make a reasonable effort to inform a non-English-speaker of the implied consent warning in a manner and language reasonably calculated "to actually inform him of his rights" so he can understand them. We hold reading of the implied consent warning in English satisfies KRS 189A.103 and 189A.105.

         We are not the first panel of this Court to analyze KRS 189A.105(2)(a). In Commonwealth v. Rhodes, 308 S.W.3d 720, 722-23 (Ky. App. 2010), a woman was suspected of drunk driving. She became "combative" while being placed in a police cruiser convincing the officer it was impossible for him to read the implied consent warning to her despite multiple attempts. The panel determined even though Rhodes was not listening to the officer, he was statutorily mandated to "read" the implied consent warning to her. Because the officer never read the warning to her, she never refused testing. Rhodes explains:

the implied consent warning is an integral part of the DUI statutes. It informs defendants of important rights and duties that are involved in such cases, as well as the consequences of their particular actions. The legislature has recognized the importance of the implied consent warning by the use of the mandatory language "shall." While reading the implied consent warning to the defendant is mandatory, there is no statutory requirement that the defendants understand or acknowledge the reading of the implied consent warning. The statute merely requires that the officer read the implied consent warning.
The Commonwealth asks this Court to substitute the legislature's mandatory language with its own permissive language. We decline to do so in light of the clear language utilized in the statute that this warning shall be read to all arrestees or defendants. "[T]he courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Holbrook v. Kentucky Unemployment Ins. Com'n, 290 S.W.3d 81, 86 (Ky. App. 2009) (quoting Kentucky Unemployment Ins. Com'n v. Jones, 809 S.W.2d 715, 716 (Ky. App. 1991)).
A review of the evidence in this case indicates that although Rhodes was belligerent, the officers could have still read the warning to her. Nothing requires that Rhodes listen to the warning, instead only that the officers read it to her. Only once the warning is read can Rhodes then be deemed to have impliedly or explicitly refused. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky. 2004) ("In order for there to be a refusal, there must first be a specific request that the person take the test, not just an inquiry whether the person would like to take it.") (Internal citation omitted).

Rhodes, 308 S.W.3d at 722-23 (emphases added). The underlying question in Rhodes was whether the driver refused testing. The arresting officer testified he neither read the complete implied consent warning to Rhodes, nor requested she submit to testing because "he 'felt' like Rhodes would refuse to submit to the intoxilyzer testing[.]" Id. at 721. Under those circumstances, the panel concluded Rhodes did not refuse testing. On the strength of Rhodes, the Commonwealth argues Officer Eggleston satisfied KRS 189A.105(2)(a) in this case by simply reading the implied consent warning to Ortiz in English because the statute did not require Ortiz to understand it.

         Interestingly, the word "read"-or some version of it-appears fourteen times in the Rhodes opinion, but never appears in KRS 189A.105. This fact distinguishes Kentucky's implied consent law from that adopted by Georgia. The Commonwealth cites State v. Stewart, 286 Ga.App. 542, 543, 649 S.E.2d 525, 526 (2007), in support of its position but we ascribe Stewart little weight because Ga. Code Ann. § 40-5-67.1(b) specifically directs: "At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from [three choices.]" (Emphasis added.) Thus, it is no surprise Georgia courts have held Georgia's implied consent law is satisfied by mere reading of the implied consent warning. However, Georgia's approach supports the belief "reading" the warning aloud is adequate to convey the implied consent law to a suspected drunk driver.

         Unlike the Rhodes panel, Ortiz does not equate the word "read" with the word "informed."

"The seminal duty of a court in construing a statute is to effectuate the intent of the legislature." Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citing Commonwealth v. Harrelson, 14 S.W.3d 541 (Ky. 2000)). "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005) (citing Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979)). Thus, we are "to ascertain the intention of the legislature from words used in enacting statutes rather than surmising what may have been intended but was not expressed." Stopher v. Conliffe, 170 S.W.3d 307, 309 (Ky. 2005), overruled on other grounds by Hodge v. Coleman, 244 S.W.3d 102 (Ky. 2008).

Hall v. Hosp. Resources, Inc., 276 S.W.3d 775, 784 (Ky. 2008). While Kentucky's General Assembly could have easily directed officers to "read" the implied consent warning to suspected drunk drivers, it did not. It chose the word "informed" which does not appear to be a particularly technical word with special legal meaning, but the word does appear in other statutes and judicial opinions. KRS 189A.005 provides definitions for KRS Chapter 189A but the word "informed" is not included. Hence, we set upon a quest to find its common, ordinary meaning as KRS 446.080(4) directs us to do.

         In a medical context, the Supreme Court of Kentucky has described "informed consent" as:

a medical treatment provider [satisfies] the duty to obtain the patient's consent only if . . . the physician's action in disclosing the risks [is] "in accordance with the accepted standard of medical . . . practice among members of the profession with similar training and experience" as stated in Subsection (1), it is further required that the information imparted by the physician be stated so as to provide "a reasonable individual" with "a general understanding of the procedure . . . [any] acceptable alternative[s] . . . [the] substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures."

Sargent v. Shaffer, 467 S.W.3d 198, 207-08 (Ky. 2015). The focus of "informed consent" is the facts given to the patient, not the patient's grasp or understanding of the facts.

         Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694 (1966), specifies:

if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it-the threshold requirement for an intelligent decision as to its exercise.

(Emphasis added.) Police officers traditionally read Miranda rights to individuals.

         A frequent source for defining terms is the dictionary., defines the word "informed" as "having information, " "based on possession of information, " and "educated, knowledgeable[.]" Informed,, (last visited May 2, 2019). Again, the focus is on providing relevant facts, not the recipient's ability to process the facts provided. Considering these common, ordinary uses of the word "informed, " we cannot say it was unreasonable for the Rhodes panel to equate the word "informed" with the word "read."

         A nagging concern throughout this case is the district court's belief Officer Eggleston "knew that [Ortiz] could not speak English or, at best, had a very limited grasp of the English language[.]" We cannot identify the basis of this finding. Ortiz never objected during the stop. He gave no indication he did not understand what was happening or what he was being asked to do. Other than occasionally shrugging his shoulders-which could easily have been interpreted as "I have no choice, " "I don't know what to do, " or "What should I do?"-Ortiz never stated, "no entiendo inglés" or "no comprendo inglés."[6] Officer Eggleston had stopped Ortiz on suspicion of drunk driving. How was he to distinguish conduct resulting from Ortiz' state of heavy intoxication from his potential inability to speak and understand English, especially when Ortiz often shook his head up and down-indicating "yes"-and responded both verbally and appropriately in English? We will not require an officer to assume what is not communicated to him.

         Ortiz and the lower courts focus on what the officer did not do-he did not read the implied consent warning to Ortiz in Spanish. They completely ignore what he did-he read the implied consent warning to Ortiz in English which we recognize in this Commonwealth is a traditional method of conveying information. Considering Ortiz' level of intoxication, it cannot be said Ortiz would have grasped the extent of his rights-and would have refused testing or called an attorney-had he received the warning in Spanish. In Oregon v. Elstad, 470 U.S. 298, 316, 105 S.Ct. 1285, 1297, 84 L.Ed.2d 222 (1985), the United States Supreme Court wrote, "[t]his Court has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their ...

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