LOUISVILLE, Ky. (WDRB) – In a trial over alleged impaired driving last month in Bourbon County, the jury sent out a question to the judge during deliberations: Was the driver tested to determine her blood alcohol level?
It was a question the judge could not answer.
That’s because a recent Kentucky Supreme Court ruling prohibits prosecutors from mentioning if a driver refuses a blood test, which is necessary if the person has taken drugs that wouldn’t be detected by a breathalyzer.
“If you’re a juror in a DUI trial, you are probably thinking, ‘Well did she take a test? Did she refuse a test’?” Assistant Bourbon County Attorney Terry Towles said in an interview last week, noting that the driver who ultimately was acquitted had in fact refused a blood test.
“What is so ironic is our drug problem in Kentucky is just terrible and the court goes and makes a ruling like this. … It’s beyond handcuffing to DUI prosecutors.”
An April 29 ruling by the Kentucky Supreme Court found in a 5-2 opinion that drivers have a constitutional right to refuse a blood test. Moreover, the justices ruled that police and prosecutors can’t tell jurors about the refusal, although they can be told if someone refuses a breath test.
Already under Kentucky law, investigators cannot get a search warrant for a blood test in a DUI case unless there has been an injury or death.
But with driving on drugs surpassing drunk driving in Kentucky in recent years, there is a push to change the law.
Woodford County Attorney Alan George told state legislators during a Nov. 17 meeting of the Interim Joint Committee on Judiciary that the restrictive language in the law is “inexplicable” and 34 other states allow for blood tests in all DUI cases, including all of Kentucky’s bordering states.
Drugs were a factor in 54 percent of DUI cases last year, according to the state’s Attorney General’s office, citing statistics from the Kentucky Office of Highway Safety.
“So for more than half of the impaired-driving cases in Kentucky, this court decision takes away the only effective tools that prosecutors and law enforcement have for proving a defendant guilty and keeping Kentucky roads safe,” the office said in an appeal to the Supreme Court ruling. The high court denied the appeal.
Kentucky State Rep. Patrick Flannery, R-Olive Hill, told legislators earlier this month that he is planning to file a bill in the next few weeks to address issues with the current law regarding search warrants and the new Supreme Court ruling.
Flannery will, in part, ask that investigators be allowed to get search warrants for blood test in all DUI cases.
George told legislators that Kentucky has the 4th highest refusal rate in the country and the change in law could prompt most defendants to take the blood test and “we’ll be able to determine what, if anything, they have in their system.”
“The jury hears nothing about it, as if it was never sought in the first place,” George said in an interview. “It’s like the book ends without the final chapter and the jury is just left to wonder what happened.”
The Supreme Court ruling this year has prompted defense attorneys to tell clients – who are allowed to call attorneys at the scene - to refuse blood tests, given the denial can no longer be used against them in court, George told legislators.
“Every defense attorney worth their salt is going to say, ‘Do not take the blood test,’” said George, who is treasurer for the Kentucky County Attorneys Association.
One Louisville DUI attorney has run a commercial saying, “Choose to refuse or you will lose.”
The April Kentucky Supreme Court ruling centered around the Nov. 1, 2014, DUI arrest of Jared McCarthy, who was taken to a hospital by an Owensboro police officer after allegedly swerving across the center line and failing a field sobriety test.
McCarthy refused to take a blood test, despite a warning by the officer that the refusal could be used against him in court, according to the ruling. Prosecutors were allowed to use that information in the trial. McCarthy was convicted.
However, citing a 2016 U.S. Supreme Court opinion, the Kentucky high court overruled the conviction, ruling that informing jurors of the refusal violated McCarthy’s Fourth Amendment right against unreasonable searches and seizures.
Justice Lisabeth Hughes wrote in the majority opinion that “a reasonable possibility exists that the inference of guilt associated with the refusal tainted the jury’s” decision.
Police can still tell jurors if a DUI defendant refused a breath test but the officer didn’t ask McCarthy to take a breathalyzer.
The court also ruled that a defendant could not face a stiffer penalty or lose their license for refusing a blood test, if convicted. Previously, refusing a blood test would double the criminal penalty, or jail time, if someone was convicted.
Justice Laurence VanMeter was the only dissenting vote, arguing the other justices erred and there is no constitutional violation in using a refusal as evidence in a DUI case. Justice Robert Conley sided with VanMeter.
Louisville defense attorney Karen Faulkner, first vice president for the Kentucky Association of Criminal Defense Lawyers, said taking someone to the hospital and piercing their skin to draw blood is much more invasive than a simple breath test and could result in physical complications for some people.
“It’s very intrusive,” she said. “We don’t want the state interfering with our bodies. That’s a pretty old concept.”
But at the Nov. 17 meeting in Frankfort, some legislators indicated they support changing the law.
Sen. Whitney Westerfield, R-Hopkinsville, the chair of the Senate Judiciary Committee, said he was “stupefied” as to why police could not already obtain search warrants for blood tests in all DUI cases.
And Rep. Jason Nemes, R-Middletown, said of the high court’s ruling in April: “Our Supreme Court just got it wrong.”
However, Sen. Johnny Turner, R-Harlan, noted some people are charged and arrested, spending several days in jail, before the blood tests come back showing they were not driving impaired. He said there needed to be a quicker way to determine through blood tests whether someone was impaired.
“I had a nephew who an officer said had something in his nose and it came back that he had been eating donuts at Dairy Queen,” Turner said. “The Supreme Court has said you have a Fourth Amendment right to not have that (blood test) piercing.”
Jefferson County Attorney Mike O’Connell said most other states have found a way to do it, and DUI is the only offense under Kentucky law in which police are not allowed to get a search warrant, despite numerous attempts to change the statute.
“This urgently needs to be corrected,” he said. “Kentucky is historically very lax and not motivated to pass the strict DUI legislation that’s needed to save lives.”
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