483 S.W.3d 353
Ky.2015Background
- On March 31, 2007 Christopher Duncan was stopped for seatbelt and lane violations; officer detected alcohol, Duncan failed field sobriety tests and PBT, and was arrested.
- Sergeant McDowell asked Duncan to submit to a blood test; Duncan refused and requested a breathalyzer instead; McDowell declined and transported him to jail.
- Duncan was charged with DUI (third offense); he moved to dismiss arguing KRS 189A.103 required offering a breath test before a blood draw because blood extraction is a Fourth Amendment seizure.
- Trial and circuit courts denied dismissal; Court of Appeals initially affirmed, then withdrew and reversed after Missouri v. McNeely, prompting Supreme Court review by the Kentucky Supreme Court.
- The Kentucky Supreme Court reviewed statutory interpretation de novo and reinstated the lower courts’ rulings denying dismissal, holding officers may request blood tests without first offering a breath test under KRS 189A.103.
Issues
| Issue | Plaintiff's Argument (Duncan) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether KRS 189A.103 requires law enforcement to offer a breath test before requesting a blood test | KRS 189A.103 (and §(5)) contemplates breath testing as the preferred/initial method; blood draws are Fourth Amendment seizures and thus cannot precede breath testing absent consent or a warrant | Statute’s plain language permits use of breath, blood, or urine, in any combination or order; officer has discretion which test to employ | The Court held the statute does not require a breath test first; officers may request blood tests without first offering breath tests. |
| Whether KRS 189A.103(5) limits blood testing to situations where breath testing cannot detect the substance | §(5) shows blood/urine may be required only when impairment is by a substance not detectable by breath, so blood should not precede breath generally | §(5) applies to cases involving non-breath-detectable substances (drugs); it does not restrict blood testing order in alcohol investigations | The Court held §(5) addresses non-breath-detectable substances and does not limit officer discretion in alcohol cases. |
| Whether Missouri v. McNeely (exigency/warrant rule) controls this case and invalidates requesting blood without a warrant | McNeely clarified exigent-circumstances analysis and (according to Duncan) undermines cases permitting blood draws without warrant | McNeely does not change the statutory question; here no blood was actually drawn (Duncan refused), so no Fourth Amendment seizure occurred and McNeely is inapplicable | The Court held McNeely does not apply to negate the statutory interpretation; because no warrantless blood draw occurred (Duncan refused), there was no Fourth Amendment injury and McNeely does not change the statutory holding. |
Key Cases Cited
- Beach v. Commonwealth, 927 S.W.2d 826 (Ky. 1996) (KRS implied-consent does not require offering breath test before asking for blood)
- Schmerber v. California, 384 U.S. 757 (1966) (blood testing is a Fourth Amendment seizure; exigent circumstances can justify warrantless blood draw in specific circumstances)
- Missouri v. McNeely, 133 S. Ct. 1552 (2013) (natural dissipation of alcohol in blood does not create a per se exigency; exigency must be judged case-by-case)