362 S.W.3d 341
Ky. Ct. App.2011Background
- Ferguson appeals a Carroll Circuit Court order affirming a district court ruling denying suppression of breathalyzer results under KRS 189A.105(3).
- The issue centers on whether Ferguson’s right to contact an attorney during the ten-to-fifteen minute pre-test window was violated.
- Ferguson was stopped for no tail lights, subjected to sobriety tests, arrested for DUI, and transported to the detention center.
- At the detention center, Ferguson was informed of her right to contact an attorney within the pre-test window, but could not access her cell phone due to jail policies.
- Ferguson requested to call her attorney using her cell phone but was denied access to it, and she provided a breathalyzer result of 0.092.
- The circuit court affirmed the district court’s denial of suppression; the Court of Appeals ultimately reversed and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Ferguson’s right to contact an attorney under KRS 189A.105(3) violated? | Ferguson argues she was deprived of access to her attorney because her cell phone could not be used. | Commonwealth argues no violation occurred since Ferguson had some opportunity and the statute allows assistance through state action. | Yes, Ferguson’s right was violated. |
| If violated, does the violation require suppression of the breathalyzer results? | Violation requires suppression under the statute’s remedial purpose. | Violation does not automatically require suppression under the statutory language. | Yes, suppression is required because state action frustrated the right. |
Key Cases Cited
- Bhattacharya v. Commonwealth, 292 S.W.3d 901 (Ky.App. 2009) (limits on attorney access require reasonable steps to aid contact during pre-test window)
- Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 2003) (statutory construction; effectuate plain meaning of KRS 189A.105(3))
- Delacruz v. Commonwealth, 324 S.W.3d 418 (Ky.App. 2010) (right to contact an attorney must be known to be meaningful to waive)
- Porter v. Harper, 477 S.W.2d 778 (Ky. 1972) (citation requirement for record assertions)
- Smith v. Smith, 235 S.W.3d 1 (Ky.App. 2006) (caution on using non-cited record support)