Opinion
NO. 2011-CA-001501-DG
01-11-2013
REGINA CARROLL APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: John Cornett Georgetown, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Jack Conway Attorney General David B. Abner Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 11-XX-00001
OPINION
AFFIRMING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Regina Carroll appeals the denial of her motion to suppress evidence in a driving under the influence (DUI) case. She brings three arguments on appeal. We affirm.
Ms. Carroll was arrested by Bergin City Police Chief Jim Caldwell on April 14, 2010, and charged with DUI. A motion to suppress the evidence was filed on June 16, 2010. The motion was premised on the argument that Chief Caldwell did not have sufficient grounds to charge Ms. Carroll with DUI. It was also alleged that Chief Caldwell did not properly observe Ms. Carroll for twenty minutes prior to administering a breath test in accordance with Kentucky Revised Statutes (KRS) 189A.103 and that Chief Caldwell did not properly advise Ms. Carroll of her rights pursuant to the implied consent warnings contained in KRS 189A.105.
At the hearing on June 29, 2010, Chief Caldwell was the only witness. He testified as to the facts surrounding Ms. Carroll's arrest and the administration of the breathalyzer test at the police department. Chief Caldwell testified that once at the police department, he observed Ms. Carroll for the required twenty minutes. This observation was done in two rooms, the room containing the Intoxylizer and an adjacent room.
The breathalyzer test is done by a machine called an Intoxylizer.
Chief Caldwell testified that he read Ms. Carroll the implied consent warnings, which are located on a piece of paper on the Intoxylizer, prior to the first breathalyzer test. The initial test showed Ms. Carroll had a Blood Alcohol Content (BAC) of .255. The jail has a regulation which dictates that it will not accept custody of individuals with a BAC higher than .25 for safety reasons. If a detainee has a BAC higher than .25, he or she must be medically cleared before being housed at the jail. Chief Caldwell waited a short period of time and administered another breathalyzer test to see if her BAC was below .25. Chief Caldwell did not read the implied consent warnings prior to administering this test or advise her of her right to an independent test afterward. The second test revealed a BAC of .259. Chief Caldwell then took Ms. Carroll to the hospital in order for her to be medically cleared to be admitted into the jail. The hospital performed a blood test on Ms. Carroll. No implied consent warnings were read before or after this test. The results showed Ms. Carroll's BAC was .32. The hospital gave Chief Caldwell a medical clearance to house Ms. Carroll in the jail. Chief Caldwell testified his reason for not reading the warnings prior to and after the second breath test and the blood test was that these tests were for medical diagnostic purposes only and would not be used as evidence in a criminal trial.
After the suppression hearing, both parties briefed the issues. The motion was overruled and Ms. Carroll entered a conditional guilty plea on January 13, 2011. Ms. Carroll reserved her right to appeal the trial court's ruling on the motion to suppress. This appeal followed.
Ms. Carroll's first claim on appeal is that the trial court erred in allowing the prosecution to utilize hearsay evidence during the suppression hearing. It is well settled that hearsay evidence can be utilized in pretrial suppression hearings. See Lloyd v. Commonwealth, 324 S.W.3d 384, 392 (Ky. 2010); Oakes v. Commonwealth, 320 S.W.3d 50, 56 (Ky. 2010); Kotila v. Commonwealth, 114 S.W.3d 226, 235 (Ky. 2003); Kentucky Rules of Evidence (KRE) 1101(d)(1). We find no error.
Ms. Carroll also argues that Chief Caldwell did not properly observe her for the required twenty minutes prior to administering the breathalyzer test; therefore, the breathalyzer evidence should have been suppressed. KRS 189A.103(3)(a) states that the officer administering the breath test can only do so after having observed the person for twenty minutes. Ms. Carroll claims that Chief Caldwell left her alone in the adjoining room while he prepped the Intoxylizer. This would mean that he did not observe her for the required twenty minutes.
We find no error here. "The trial court is in the best position to judge the credibility of witnesses and this Court is bound by the trial court's findings of fact unless there is a clear error or abuse of discretion." Greene v. Commonwealth, 244 S.W.3d 128, 136 (Ky. App. 2008), citing Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky. 2002). The only witness to testify at the suppression hearing was Chief Caldwell. He testified unequivocally that he had Ms. Carroll under his personal observation for the full twenty-minute period. He stated that he remained with Ms. Carroll in the room adjacent to the room containing the Intoxylizer. He further testified that when he went to the other room to prep the Intoxylizer, he brought Ms. Carroll into the room with him. This testimony was undisputed.
Ms. Carroll's final argument on appeal is that all of the evidence against her should have been suppressed because Chief Caldwell did not read her the implied consent warnings contained in KRS 189A.105 before or after the second breath test or the blood test. She argues this should lead to the suppression of both breath tests and the blood test. We disagree.
Chief Caldwell testified that prior to his administering the first breathalyzer test, he read the statutorily mandated implied consent warnings contained in KRS 189A.105. This testimony was undisputed and Ms. Carroll does not argue otherwise in her brief. As became clearer at oral argument, her claim is that Chief Caldwell should have also advised her of her right to an independent test after the second breath test and the blood test conducted at the hospital. As Chief Caldwell testified, the second breath test and the blood test were done for medical purposes only and were not going to be used as evidence had the case gone to trial. A failure to give the KRS 189A.105 warnings after the second breath test and the blood test does not require the first breath test results to be suppressed, especially in light of the fact that the second and third tests were not done for evidentiary purposes and not going to be used at trial. Chief Caldwell gave Ms. Caldwell the proper implied consent warnings in relation to the first breath test and those results were the only ones to be used as evidence. Suppression of the first breath test results was not warranted.
The district court denied the motion to suppress because only the first breath test was going to be used as evidence of Ms. Carroll's intoxication. It held that the issue of suppressing the second breath test and blood test was moot because the Commonwealth stated it was not going to use these tests as evidence. Had the case proceeded to trial, and the Commonwealth sought to use the second breath test and blood test as evidence of Ms. Carroll's intoxication, the trial court would have the opportunity to address the issue if raised.
Ms. Carroll is seeking the suppression of all three tests. The first test results were clearly admissible as evidence because Chief Caldwell gave the implied consent warnings found in KRS189A.103. The admissibility of the second breath test and blood test was held to be a moot issue by the court below and thus there is nothing for this court to consider. Since the Commonwealth was only going to use the first test as evidence against Ms. Carroll had the case proceeded to trial, we affirm the judgment of the trial court.
THOMPSON, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, CONCURRING: I concur with the majority but write separately only to express my opinion that: (1) the officer's characterization of the admissibility or inadmissibility of the blood test is not determinative of its admissibility as evidence; and (2) it is questionable whether the officer can instruct health personnel to perform a particular medical test.
Certainly, an officer can transport an arrestee to a hospital or health facility for an evaluation as to the condition of the arrestee and for a determination of whether such person is suitable for lodging in a detention center. However, the decision to conduct a particular medical test is a decision for the health professional. BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
John Cornett
Georgetown, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE:
Jack Conway
Attorney General
David B. Abner
Assistant Attorney General
Frankfort, Kentucky