The Status of Blood & Breath “Searches” Conducted During a DUI Investigation: Does DUI Law in Kentucky Need Cleaning Up?
Circuit Judge Jamie Jameson, 42nd Judicial Circuit, Div. I
As a Judge, I commonly find, that while researching a specific legal issue, I “open Pandora’s box” and find even more unanswered questions on related matters. Recently, while researching whether a writ of mandamus should be issued in an action concerning the constitutionality of certain sections KRS 189A, I discovered a few related legal issues that appear to create some interesting results regarding “searches” of a person’s breath, blood, and urine as a part of a DUI investigation.
The specific legal issue in the writ action regarded whether KRS 189A.010(11)(e) was unconstitutional given the holdings of the U.S. Supreme Court decision North Dakota v. Birchfield, 136 S.Ct. 2160 (2016). If, as a Judge or attorney, you are not yet familiar with the legal issues being currently litigated in Kentucky’s higher courts related to Birchfield, you will likely see or hear of them soon if your work involves DUI investigations. Essentially, the Birchfield decision has at least two holdings regarding whether breath, blood and other “searches” of a citizen’s body commonly utilized in DUI investigations violate an individual’s Fourth Amendment rights when conducted without a warrant.
One of the holdings of Birchfield is undisputable, while the other is open for some debate. The one clear holding of Birchfield is that breath tests may be required by law enforcement, “search incident to arrest,”1 of any citizen where probable cause exists that the citizen was operating a motor vehicle while impaired. No warrant is required, and consent of any kind is not required; at least not by the Fourth Amendment of the U.S. Constitution. The second holding, depending on interpretation, either does not permit states to “punish” defendants in any way for refusing to submit to a blood test, or prohibits the imposition of a separate criminal conviction for such refusal. The latter issue is the matter currently being litigated in Kentucky.2
Issue Stumbled Across
While studying the issues of Birchfield, it was noticed that a long-held belief regarding DUI investigations may no longer be the law. From 1991 until HB366 was passed by the 2000 General Assembly, KRS 189A.105(1) clearly stated, “No person shall be compelled to submit to any test or tests specified in KRS 189A.103….”3 This statute directly forbade law enforcement from seeking a warrant for breath, blood, or urine tests even where probable cause existed that a person was operating a motor vehicle while impaired, unless the exception stated in KRS 189A.105(2)(b) applied. That exception permitted law enforcement to request warrants when death or physical injury had occurred, essentially, as a result of a DUI. Combs v. Com., 965 S.W.2d 161 (Ky. 1998) clarified the interplay of KRS 189A.105(1) and KRS 189A.105(2)(b).
In Combs, the Kentucky Supreme Court held, in pertinent part:
The plain language of the statute [KRS 189A.105(1)] in question is as follows: No person shall be compelled to submit to any test or tests specified in KRS 189A.103 . . . KRS 189A.105(1). Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant . . . requiring a blood [or other] test . . . of a defendant charged with a violation of KRS 189A.010 . . . when a person is killed or suffers physical injury . . . as a result of the incident in which the defendant has been charged. KRS 189A.105(2)(b). The clear and unambiguous language of KRS 189A.105(2)(b) creates an exception to the general rule found in Subsection (1) of the statute. Combs, supra at 163.
Combs essentially labeled KRS 189A.105(1), as it existed pre-2000, as the “rule” (meaning no warrants), unless the “exception” to that rule as set out in KRS 189A.105(2)(b) applied. However, as was previously stated, Combs dealt with the pre-2000 version of the statute. After an extensive search, this author could not find a single Kentucky appellate opinion dealing with the issues discussed in Combs wherein the post-2000 version of the statute was at issue. All decisions located decided Combs related matters under the pre-2000 version of KRS 189A.105(1).4
KRS 189A.105 went unmodified from 1991 until the passage of HB366 in 2000. HB366 made a significant change to the Combs “rule” of KRS 189A.105(1): the amendment eliminated that language completely. Thus the “rule” of “no warrants” was eliminated in 2000. However, the “exception” stated in KRS 189A.105(2)(b) went unmodified, and, to this day, still exists, although with additions made in 2006 that do not substantially affect the subject of this article.5 Consequently, it appears to this author KRS 189A.105 is left with an exception to a rule that no longer exists. This creates an unusual result. With the “rule” no longer in existence, it would appear that “normal” Fourth Amendment rules would apply to all DUI blood, breath, and urine searches. As Combs explained, neither the Constitution nor any statute grants the right of the executive branch to seek a warrant; rather, the Bill of Rights and KRS 189A.105(1), as it existed prior to 2000, set limits on when the executive branch may seek a warrant. Combs, supra at 163. With the “rule” of KRS 189A.105(1) now missing, the only “limit” on DUI searches is the Fourth Amendment and the matching Kentucky Constitutional provisions. Thus, the rule of law in Kentucky with respect to law enforcement seeking search warrants in DUI investigations appears to be this: law enforcement may freely seek a search warrant for a blood, breath, or urine test in any DUI investigation.
In an interesting twist, when Birchfield’s proclamation regarding breath tests is added to the equation, not only may law enforcement seek warrants for blood, breath, and urine6 in Kentucky, but they may also require submission to a breath test with no warrant given probable cause to arrest a suspect for DUI exists, with one unusual exception.7
Another question that arises out of the Birchfield decision is, whether or not the Fourth Amendment requires consent of some type or a warrant for a breath “search,” should Kentucky law still require officers to comply with KRS 189A.105(2)(a)(1) & (2)?8 As to breath searches specifically, such would appear to be unnecessary, if the only purpose of the “implied consent” is to protect the integrity of a “search” thus eliminating the need for a warrant.9 For constitutional purposes, an officer may very well give the implied consent warnings prior to a breath test, but then, if the suspect were to subsequently refuse the breath test, the officer could still compel the test by warrant; or, most likely, simply compel the test “incident to arrest” as permitted by Birchfield. While our Kentucky Supreme Court could determine in the future that section 10 of the Kentucky Constitution does not allow the taking of breath samples in a DUI investigation “incident to arrest,” such a result seems unlikely. The Kentucky Supreme Court has consistently held that section 10 provides no more protection than the Fourth Amendment to the U.S. Constitution.10 Thus, it would seem that, post Birchfield, requiring officers to comply with certain portions of the implied consent warnings for a breath search where probable cause for a DUI arrest exists would lay an unnecessary burden on law enforcement.11
Where We Go From Here
From a “search” perspective, it would seem to this author that the current language contained in KRS 189A.105, at minimum, needs trimming. The “exception” in KRS 189A.105(2)(b) to a “rule” that no longer exists is, in this author’s opinion, unnecessary. Some argument could be made that the language added to that subsection of the statute in 2006 still has a desired effect, but the language added in the 2006 amendment is, at best, unclear in its purpose. The only effect that subsection of the statute could appear to have is the prevention of the use of either categorical or scenario-specific warrant exceptions such as “search incident to arrest” or “imminent destruction of evidence” to justify the warrantless taking of blood, breath, or urine in DUI investigations where a motor vehicle accident has resulted in a fatality.12 A re-write of the statute would appear to be in order. Further, removing the requirements of KRS 189A.105(2)(a)(1) & (2) (certain implied consent notifications) and the accompanying “punishments” with respect to DUI arrests where the officer seeks a breath test would seem logical in light of Birchfield.
Precisely what DUI law should look like in the future, this author will leave to the General Assembly. However, it would seem evident that clarifications to KRS 189A’s requirements with respect to blood, breath, and urine “searches” and the accompanying notifications and “punishments” may be warranted.
1 The Birchfield court conducts a thorough analysis of recent U.S. Supreme Court decisions regarding whether a “search incident to arrest” and other types of warrantless search justifications are “categorical” warrant exceptions vs. specific to the circumstances of the matter at hand. The court concludes that “search incident to arrest” is a categorical warrant exception. Consequently, any proper “search incident to arrest” may be conducted simply because a probable cause arrest occurred. The Birchfield court concluded that breath tests do not sufficiently violate a citizen’s privacy so as to require a warrant or even implied consent. The Court further concluded that, specifically, breath tests may be conducted by law enforcement “search incident to arrest” simply because a probable cause arrest for DUI has occurred.
2 The two Kentucky actions concerning the Birchfield issues currently before the Court of Appeals are: Covey v. Com., 2017-CA-00783 & Larue v. Com., 2017-CA-000719. The latter is still in briefing.
3 Meaning that no urine, breath or blood test could be sought via warrant if refused.
4 The only appellate opinion discussion of the issue of the change to KRS 189A.105(1) appears in footnote 4 of the Kent-ucky Supreme Court opinion Com. v. Morriss, 70 S.W.3d 419 (Ky. 2002), a 2002 opinion analyzing a matter that occurred while the pre-2000 version of KRS 189A.105 was still in effect. The footnote states: “KRS 189A.105 has been revised and the language ‘no person shall be compelled…’ has been eliminated.”
5 In 2006, the General Assembly added the following language to the end of KRS 189A.105(2)(b): “However, if the incident involves a motor vehicle accident in which there was a fatality, the investigating peace officer shall seek such a search warrant for blood, breath, or urine testing unless the testing has already been done by consent. If testing done pursuant to a warrant reveals the presence of alcohol or any other substance that impaired the driving ability of a person who is charged with and convicted of an offense arising from the accident, the sentencing court shall require, in addition to any other sentencing provision, that the defendant make restitution to the state for the cost of the testing.”
6 While the subject was not directly addressed in Birchfield, it is this author’s opinion, based on the analysis laid down in Birchfield, that a urine test may likely also be obtained without a warrant, “search incident to arrest.”
7 The only exception to this is contained in the 2006 amendment to KRS 189A.105. That amendment seems to require law enforcement to obtain a search warrant for a blood, breath, or urine test where a motor vehicle accident which involves a fatality is suspected to have been caused by an impaired driver, unless the testing has already been done by consent. This language seems highly impractical and confusing, but it, nevertheless has been a part of KRS 189A.105(2)(b) since 2006.
8 These subsections of the statute reference the non-attorney and non-secondary testing sections of the implied consent warning administered by law enforcement currently.
9 If the legislature believes that breath results should be suppressed strictly because an officer did not follow the requirements of KRS 189A.105(2)(a)(1) or (a)(2), such could be legislatively accomplished. However, given that the assumed original purpose of the implied consent law was to impose “consent” for a search of a person’s breath, blood, or urine, Birchfield, in this author’s opinion, eliminates the intended purpose of implied-consent as to breath tests.
10 See Rainey v. Com., 197 S.W.3d 89 (Ky. 2006), overruled on other grounds to make Kentucky law consistent with Arizona v. Gant, 556 U.S. 332 (2009): “Our analysis in the context of the Fourth Amendment to the United States Constitution must begin with the understanding that “section 10 of the Kentucky Constitution provides no greater protection than does the Federal Fourth Amendment.” LaFollette v. Commonwealth, 915 S.W.2d 747, 748 (Ky. 1996).
11 Leaving the “punishments” for refusing a breath test as set out in KRS 189A.105(2)(a)(1) & (2) given that consent of any kind is no longer required for officers to compel such a test would appear to be punishing the defendant for a refusal simply because the defendant refused. Doing so would seem, to this author, unnecessary. The clear original purpose of the “punishments” set out in KRS 189A.105(2)(a)(1) & (2) was to encourage motorists to not withdraw their “implied consent” to a blood, breath, or urine search where probable cause for DUI existed. With Birchfield making the defendant’s consent irrelevant to the obtainability or admissibility of the breath results, it would seem there simply is no purpose in maintaining the “punishments” described in KRS 189A.105(2)(a)(1) & (2) with respect to breath tests specifically. The content of KRS 189A.105(2)(a)(3) & KRS 189A.105(3) & (4) would arguably still be relevant to breath results if the legislature so chose to leave those provisions in place, as a matter of policy, for persons who submit to a breath test. However, some clarification may be needed with respect to the applicability of those sections and the effect of noncompliance, if any.
12 The last sentence of the language added to KRS 189.105(2)(b) in 2006 regards restitution for testing. That language could remain as part of that subsection, or easily be placed elsewhere as its own provision, which would seem more logical to this author.