*1 555 subject jurisdiction matter over Robert on whether restraining its order would juris- and JoAnn’s divorce case and in rem expire or continue in the form of tempo- property. their rary diction over Robert’s injunction. CR pro- 65.01-CR 65.09 death, after the dissolution of their mar- path vides a well defined for the orderly riage, not divest the circuit did court of resolution of such matters without jurisdiction property, over the marital nor need to remedy resort to the of an extraor- necessity equitably did it eliminate the dinary writ. While we do not hold that a dividing the marital property. The district case proceeding along path should clearly court lacks that authority. We never be diverted an application to an conclude, therefore, regardless writ, intermediate court for a we do hold question personam of in jurisdiction over may intermediate court consider estate, the executor of Robert’s the trial the remedies inherent within CR 65.01 et jurisdiction court retained in rem to deter- seq. weighed as factors to be exercising mine the nature and extent of the marital its discretion grant deny the writ. property authority equitably and the We see no abuse of discretion in the Court it, divide apportion to JoAnn her Appeals’ denial of the writ. share. The Order of the Appeals Court of deny- In the final analysis, regardless of ing sought the relief by Appellant is af-
whether Appellant’s petition writ was ex- firmed. This matter is remanded to the jurisdiction” amined as a “no writ or an Oldham Circuit Court for further proceed- writ, jurisdiction” “erroneous but within its ings. Appeals
the Court of had discretion to Braden,
deny the writ. In v. Cox All sitting. All concur. (Ky.2008)
S.W.3d 792 we reaffirmed the
longstanding principle relating to the issu-
ance of extraordinary writs:
[wjhether “always to issue a writ is dis-
cretionary, even when the trial court acting outside jurisdiction.” its
Hoskins, 9; Bender, 150 S.W.3d at (“The
S.W.2d at 800 exercise of this HELTON, Appellant, Melissa authority except judi- has no limits our discretion, cial and each case must stand merits.”); Kentucky, its own Ohio River Con- COMMONWEALTH of (“The Co., tract at 181 Appellee. S.W. writ of prohibition [or mandamus] is not a writ No. 2008-SC-000141-MR. which can be demanded as a matter of course, right Supreme Kentucky. but its Court of granting refusal is a matter which lies within the 27, Aug. 2009. court.”). discretion of this In other Rehearing Denied Jan. 2010. words, a writ is never mandatory, even upon satisfaction of one of the tests laid As Modified Jan. out in Hoskins.
Id. at 797. filed, petition
When the for the writ was
the trial court was about to hold a hearing *2 KY, Dove, Lexington, E.
Edward Coun- for Appellant. sel General, Attorney Jack Conway, Joshua Farley, General, D. Attorney At- Assistant Office, torney General’s Office Criminal KY, Frankfort, Appeals, Ap- Counsel for pellee.
Opinion by Justice of the Court NOBLE. Helton was Melissa convicted multiple counts wanton murder and charges stemming
several other from car driving accident in which she was influence of alcohol. evidence that sample, she challenges is blood which the police took hospital at the while she was nearly unconscious or so after accident. practice She claims that this violates KRS 189A.105(2)(b), requires a which accident, fatality to test blood over “im- argues controls statute, plied consent” KRS 189A.103. She also if the statutes claims that even are conflict, then the consent statute and taking sample from practice indicted for four counts of murder, are suspects general unconscious DUI wanton one count wanton en- dangerment, unconstitutional. and one count first-offense
driving under the influence. She moved to Background suppress I. the evidence of her blood alcohol level, arguing sample was taken August Appellant On Melissa without her consent in and violation of children, drove her Helton Nicholas Hel- 189A.105(2)(b). KRS trial court de- Helton, ton and Madison her friend Lori motion, nied the finding Appellant that children, Lathrop, and Emily two other “was unconscious or in otherwise a condi- Hildebrandt, Preston and Caleb to a local rendering refusal,” tion her incapable of Lathrop creek to swim. and Appellant and thus there was “[statutory consent drank alcohol while the children swam under KRS 189A.103.” evening, played. Appellant That packed Appellant subsequently a entered condi- Lathrop and the into her to children van guilty plea charges, tional to all preserving home. drive appeal for the issue of whether the blood drove van off the road and alcohol evidence should have sup- been some struck trees and shrubs. Nicholas pressed. She was sentenced to twenty- Helton, Emily Preston and Caleb Hilde- years prison. four in impact. were by brandt killed Madi- appeals She now to this Court as a son Helton suffered a broken arm and right. 110(2)(b). § Ky. matter of Const. inju- Lathrop lacerations. Lori sustained required hospitalization; ries that la- Analysis II. from injuries. Appellant ter died suf- an fered ankle fracture and severe head Compliance A. with KRS lacerations. 189A.105(2)(b)
The crash all transported victims were Appellant’s first contention is that the University Kentucky Hospital. taking testing of her blood violated 189A.105(2)(b), hospital. was admitted KRS part which states in later, County Sometime two Jessamine that “if incident a involves motor vehi Deputies Appellant, Sheriffs visited who cle in which was a fatality, accident there Despite was unconscious. no the having investigating peace officer shall seek warrant, blood, deputies breath, search ... took a blood a search warrant for or which, tested, sample, testing when Appel- testing already showed urine unless the has a by lant had content argues alcohol of .16%. been done consent.” She 189A.105(2)(b) entirety: 1. KRS reads in its vehicle in motor which there fatality, investigating peace Nothing was a offi- in con- this subsection shall be prohibit judge strued of a court of cer seek such a warrant shall search for competent jurisdiction breath, issuing blood, from testing or urine unless the requir- court search or other order already testing has been done consent. test, ing a blood or or a urine combination pursuant If done to a warrant re- thereof, charged of a defendant vio- with a presence any veals the of alcohol other 189A.010, statutory lation KRS or other impaired driving ability substance incident, arising violation from when a person charged with of a who is and con- physical injury, is killed or as suffers arising from victed of offense the acci- 500.080, defined KRS as a result of dent, sentencing require, shall court incident which the defendant has been sentencing provision, addition other However, charged. if the incident involves to a motor vehicle consents operates who conflicts with KRS statute blood, for meaning of his breath or urine 189A.103(3)(a), KRS test presumably determining concentra purpose alcohol 189A.103(1),2 states: tion”). provisions apply shall following physi- is in any person operates who test, or she refuses the he If a driver motor or a vehi- of a vehicle cal control test. effectively consent for the withdraws is not a motor vehicle cle a “refusal KRS states that Commonwealth: shall to tests under 189A.103 submit driving privilege of his result revocation
(1)
or her
given
his
*4
He or she
chapter,”
KRS
provided in this
(1)
as
of his or
to one
or more tests
consent
189A.105(2)(a)
that
lays
requirements
out
breath,
urine,
blood,
or combi-
things
suspect of certain
an officer warn a
thereof,
deter-
for the
of
purpose
nation
per
the
to test a
when
officer undertakes
presence
or
mining
concentration
alcohol
Thus,
blood, breath,
it is
or urine.
son’s
may impair
of a
which
one’s
substance
under
anticipated
that
are
clear
refusals
reason-
driving ability, if an officer has
See
Hernan
also
statutory
the
scheme.
grounds to believe that a violation
able
dez-Gonzalez,
(noting
189.520(1)
The as noted is The question more difficult is The question consent. is not proceeding whether with the warrantless (or whether consented was in a blood suspect unconscious consent), to to position be able but whether statutory implied provi under the consent Clearly she withdrew her consent. she did sions without cause and her hav test; fact, refuse not to submit the ing an opportunity to refuse violates the she was unable to do so was protection against unreasonable searches nearly unconscious or so. by and Fourth provided seizures the Fourteenth Amendments to the United importantly, More the Appel- fact that Appellant argues States Constitution.3 lant at was unconscious the time did not (or did not because she consent rather nullify statutory implied consent. opportunity because she did not have the KRS 189A.103 on the focuses whether sus- refuse); were exigent there no circum affirmatively pect by withdraws consent stances; obtained, and no was refusing testing. to submit to The statute taking of her specifically continuing addresses the con- blood violated Constitut unconscious, is effectively sent one who ion.4 Appellant’s protection
3. brief makes no reference to searches and than from seizures analogous afforded United States Constitu provisions Kentucky Consti ...”). tion. solely depends tution. She on claims of fed However, eral constitutional violations. simply reply' 4. The Commonwealth does not Kentucky expand while could Amend Fourth Instead, argument. only to this it focuses protections, ment it cannot decrease them. statutory resolving the issue construction Commonwealth, 912, v. Beemer 665 S.W.2d alleged conflict between KRS 189A.103 1984) (Ky. ("Kentucky 913 cannot accord less 189A.105(2)(b). and KRS
560 at refused to to a blood test while Supreme States Court has
The United
accident. Nev
hospital following
a car
implied consent in
on this issue of
touched
ertheless,
had a
take
example, in
officer
doctor
cases. For
Roc
a number of
165,
sample,
which later showed the
72
S.Ct.
California,
v.
U.S.
hin
drinking
had
alcohol. The
defendant
been
(1952),
205,
the Court
L.Ed. 183
held
process,
rejected claims under due
Court
forced,
pumping
warrantless
self-incrimination,
right against
stomach,
after officers
even
suspect’s
right
counsel.
pills,
some
quickly swallow
seen him
more than
and invasive as to “do
so violent
addressed
Fourth
Court also
squeamishness
fastidious
offend some
claim,
exclusionary
Amendment
rule
combating
about
private sentimentalism
to the
having been
states
applicable
held
172,
energetically.”
too
Id.
crime
Ohio,
81 S.Ct.
Mapp
367 U.S.
concluded that
Court
S.Ct.
(1961).
561
However,
intrusions,
permits
more substantial
magistrate.
detached
likelihood that the defen-
intrusions under other conditions.
great
there is
body would reduce the level of alco-
dant’s
772,
added).
Id. at
(emphasis
The case
State,
of the
DUI statute.
Id. at
277 Ga.
violation
state’s
Cooper
on point is
fact,
(2003),
upheld
607 n. 3. In
the court later
in which the Geor-
S.E.2d 605
statute, distinguishing
portion
unconstitutional
Supreme Court held
gia
Cooper
process:
in the
consent statute
allowed for
implied
an
who had been in-
any person
Cooper
implied
makes it clear that [the
resulting in serious
volved in an accident
is unconstitutional
statute]
fatalities. The court based its
injuries or
interpreted
the extent that it could be
fact that this allowed what
on the
decision
to chemi-
require
individual to submit
probable
to a search without
amounted
testing solely
cal
because that individual
cause,
applied any
it
time a serious
since
in a traffic accident result-
involved
occurred, regardless of whether
ing
injuries
in serious
or fatalities. On
any evidence of DUI.
there was
hand,
the other
where an individual has
in a traffic accident result-
been involved
however,
readily distinguish-
Cooper,
ing
injuries
in serious
or fatalities and
in question
the statute
differs
able because
law enforcement officer
investigating
Kentucky’s. Our im-
substantially from
probable
has
to believe that
cause
only applies in situa-
plied consent statute
influ-
driving
individual was
under the
“an
tions where
officer has reasonable
con-
drugs,
ence of alcohol or other
that a violation of KRS
grounds
believe
play
Cooper
stitutional infirmities
189.520(1)
189A.010(1)
occurred,”
longer present,
ensuing
are no
and the
added),
(emphasis
KRS
search is both warranted and constitu-
say, when the officer has “reasonable
is to
tional. Due to the existence of
grounds”
suspect
to believe the
was driv-
cause,
being subjected
individual
Kentucky’s
the influence.
stat-
ing under
is,
fact,
“suspect”
a search
as con-
like that in
provision
ute does not include
by the
templated
statute.
allowing testing
for
sufficient-
Georgia
Nothing
accident.
in the Ken-
ly
State,
serious
Hough v.
279 Ga.
620 S.E.2d
tucky implied
(2005).
consent statute allows it to
380, 383-84
merely
invoked
be
189A.103(1) requires
“reasonable
in a serious accident.
In Ken-
involved
grounds” to believe that a violation of the
suspicion
must be some
tucky, there
pass
statute has occurred. To
consti
DUI
driving
under the influence before
muster,
grounds”
tutional
“reasonable
*8
consent can be invoked.
probable
cause.
equate
must
least
clearly far
inapplicable
Kentucky
That
is under- The
consent statute is
Cooper is
part
Georgia
to that
of the
by
Georgia
scored
the fact that the
court more similar
than that ad
part
Hough
to address that
of
statute addressed
expressly declined
Cooper.5
Georgia
court’s
implied
consent statute that allowed dressed
driving ability,
part:
may impair
if an offi-
provides in
one’s
5. KRS 189A.103
grounds
that a
cer has reasonable
to believe
any
following provisions
apply
shall
189A.010(1) [operating a
violation of KRS
operates
physical
who
or is in
con-
while under the influence of
motor vehicle
vehicle
a vehicle that is
trol of a motor
impairs
substance which
alcohol or other
not a
vehicle in this Commonwealth:
motor
189.520(1)
driving ability
(1)
prohibited] or
given
or her
He or she has
his
blood,
(1)
[operating a vehicle not a motor vehicle
of
or her
to one
or more tests
his
urine,
thereof,
breath,
while under the influence of alcohol or oth-
and
or combination
driving ability
impairs
purpose
determining alcohol con-
er substance which
for the
prohibited]
presence
occurred^]
centration or
substance
The trial court did not
requiring probable
any proof
cause
take
concerns about
in this case if the facts
police
be satisfied
about what the
knew at the time of
could
at the time the blood
to the officer
that gave
known
them reasonable
support
probable
test,
was done would
grounds
test
require
such a
and made
Appellant had violat-
cause belief that the
no finding about whether there were rea-
state DUI law.
ed
grounds for
sonable
such a blood test.
though
apparent stipula-
Even
there is an
fact,
suppression hearing,
But in
at the
counsel,
tion to
by
the facts
defense
who
Instead,
testimony was taken.
no
did not dispute
only
them but
wanted to
summarized what occurred
Commonwealth
construction,
argue statutory
to make this
responding
hospital
at the
the course
law,
question
the trial court must
orally
Appellant’s suppression
motion.
apply all elements of the
Only by
statute.
the trial
The Commonwealth informed
taking proof
necessary
on all the
elements
hospital
court that at the
the officers told
could the trial court establish whether the
consent,
and she
Helton about
police officer had
grounds
reasonable
refuse,
though
even
she did not ex-
didn’t
require a blood test. The trial court must
either. The
actly consent
Commonwealth
know
just
more than
that
the defendant
.passed
that
“sort of
out”
also noted
she
189A.103(2).
was unconscious under KRS
eyes
her
when she was asked to
and closed
(she
give
being pre-
consent to a test
was
While the minor intrusion of a blood
surgery
for
on her skull and facial
pared
test, at
least under
like
circumstances
fractures).
argued
The Commonwealth
these, is not unreasonable and the lack
aof
statute,
by
plain reading
justified by
exigent-circum-
by
having
had consented
virtue of
stances concern that the alcohol evidence
operated a vehicle within the Common-
destroyed
the blood will be
in a short
wealth,
and
the test was done “kind of period
body’s
time
human
natu-
test the hospital
on
heels
the blood
alcohol,
ability
ral
to metabolize
our stat-
doing anyways,”
it
did not involve
(and
Constitution)
ute
require more.
Finally,
additional
intrusion.
the Specifically,
Kentucky
requires
statute
its argument by
Commonwealth concluded
grounds”
per-
“reasonable
to believe that a
saying it did not believe
was a KRS
driving
son was
under the influence before
189A.105(2)(b) situation where a warrant
a blood test can be done. When “reason-
required
would be
she did not
grounds”
able
read
mean
refuse and she was not under arrest.
cause, the statute satisfies Schmerbei*s re-
...
quirement
the “intrusion[ ]
[is]
argument by
Based
the Com-
justified in the circumstances” and that
monwealth, the trial
that Hel-
court ruled
“the
justified
requiring [Ap-
were
ton had
withdrawn
consent or re-
blood,
pellant]
to submit to the blood test....”
fused
of her
ruled as a
of law that
*9
matter
consented.
ministered to this section shall be officer reasonable to believe peace impairment by a administered at the direction of a substance which is test, having grounds subject testing by officer reasonable to believe a breath then both, tests, may has committed a violation of blood or urine be re- 189.520(1). quired .... added.) (Emphasis case, however, Unfortunately, that not in the simply in this test. The record record, meaning that the trial court did not the officer had not reveal whether does engage analysis necessary in the whole to believe that alcohol was cause probable Appellant’s suppression decide motion. wreck.6 If the blood test involved in the there were fatal- merely because was done Conclusion ities, afoul of the same con- then it runs hereby The judgment is vacated and this Georgia Supreme Court consid- cerns the case is for a new suppression remanded probable cause to Cooper: a lack of ered hearing to whether the evidence determine the search. Schmerber rec- conduct While establishes that the reasonable police had that such a search does not auto- ognizes grounds to believe alcohol was involved Amendment, the Fourth matically violate the accident. exigent circum- given the existence stances, that emphasized that case MINTON, C.J.; ABRAMSON, the case are determinative and facts of CUNNINGHAM, SCHRODER and justify must be such as to that those facts VENTERS, JJ., concur. Kentucky’s the search. statute satisfies by requiring “reason- these requirements SCOTT, J., by separate opinion. dissents grounds,” which this Court reads as able SCOTT, Justice, dissents: cause. requiring probable I Although grounds, concur on all other the officer does have reasonable When I respectfully my dissent from esteemed may person, the test be done on a grounds, colleagues’ opinion that a hear- retroactive unconscious, even if she is without violat- ing is required trooper to show that If, as in ing the Fourth Amendment. grounds justify testing had reasonable Schmerber, require can a con- state Ms. Helton’s blood alcohol level. I dissent actually refused, to person, scious who has Appellant concedes in her brief exigent submit to blood test due certainly Commonwealth “[t]he proba- and the existence of circumstances belief alcohol had been involved cause, then it makes no difference what ble 26th, August Appel- accident on 2006.” But person’s state of consciousness is. Thus, Brief, at pg. Appellant’s lant’s 9. all step is not reached at unless appeal attack at trial and on was on consti- probable officer had cause to search statutory grounds, tutional and not factual place. first leeway ones. Trial courts need Consequently, this review of the Court’s perform they those trial tasks that blood test search this case turns on appropriate counsel consider probable whether the officer had cause to pertinent of each on Hearings facts case. believe that had violated unduly matters conceded counsel inter- he the blood fere requested DUI statutes when with valuable discretion. was, Appel- relies on the statement in what their belief it not matter dissent thus does lant's brief that Commonwealth cer- "[t]he that the record now discloses that tainly Moreover, had belief that alcohol had been in- drinking day. had been August volved in the accident 2006” to "admission” like this in a brief is more the probable conclude that there was cause. language by product appellate use of loose However, a “belief” alone is insufficient to counsel rather a true admission. That than cause, satisfy rigors probable especially support probable there was no evidence to support where no evidence that could such judicial finding cause and no finding suppression hear- put forth at the control, cause should not an inadvertent “ad- *10 above, ing. As noted the trial court took no mission.” proof knew the on what the officers time or took record shows The children, friend, oth- an adult and two
her al- swimming.
er children She consumed
cohol, driving, ve- resumed and drove her off the Her son young
hicle road. and his were and the adult friend
friends killed injuries. Appellant later from her
died accompanied hospital by who her informed of the effect 189A.105(2)(a). refusal KRS
her officers perceived to be incapable refusal
stupor and took implied test under the 189A.103(2). reasonable
grounds driving required by of drunk Ap- appear would satisfied well
pellant’s concession as as the circum- accompanied that the police Appel-
stances
lant from the driver’s seat of a horrific hospital where she was uncommunicative;
effectively not men- suppression hearing
tion at the
Commonwealth informed the trial court at the time the blood test was taken officers Helton informed about refuse,
consent and that she did not but
just passed “sort of out” and closed
eyes.
I, therefore, respectfully dissent. EMBERTON, Appellant,
Tim
GMRI, INC., Mills General Restau- f/k/a (d/b/a
rants, Inc. Red Lobster Restau- 349), al, Appellees.
rant # et 2007-SC-000443-DG,
Nos.
2008-SC-000109-DG.
Supreme of Kentucky. Court
Oct. 2009.
Rehearing Jan. Denied