John Logan SPEERS, Wendell Fortney, and Rodney J. Mullins, Movants, v. COMMONWEALTH of Kentucky, Respondent.
No. 91-SC-038-DG
Supreme Court of Kentucky.
April 9, 1992.
828 S.W.2d 638
I am not unmindful of the need of a right for grandparent visitation in a fragmented family, but no governmental authority or state may use the law to force grandparent visitation on nonconsenting parents living in an intact family unit. Clearly there are situations where the family is deteriorating that need attention. This is not such a situation. This is clearly governmental interference.
I would affirm the decision of the Court of Appeals.
LAMBERT, J., joins in this dissent.
Jimmy Dale Williams, Richmond, for movants.
Chris Gorman, Atty. Gen., Garrett T. Fowles, Robert Russell, Thomas J. Smith, III, Asst. Madison County Atty., Richmond, for respondent.
SPAIN, Justice.
We granted discretionary review in these consolidated appeals to determine whether paramedics and phlebotomists fall within the class of persons authorized by
On March 25, 1989, Mullins was arrested for speeding and for DUI. He was taken by the arresting officer to the Madison County Ambulance Service to have a blood alcohol test. A certified paramedic with the service drew a blood sample from Mullins.
Speers and Fortney had been involved in separate one-car accidents on March 9, 1989, and April 10, 1989, respectively. After failing a field sobriety test, Speers consented to a blood alcohol test. His blood was drawn by the same paramedic who had drawn blood from Mullins. Speers was then transported to the Pattie A. Clay Hospital where he received medical treatment. Fortney also consented to a blood alcohol test at the Pattie A. Clay Hospital where
The movants sought to suppress the admission of the blood tests but at a pretrial suppression hearing in the Madison District Court their motions were denied. Speers, Fortney, and Mullins then entered conditional guilty pleas to DUI. On appeal, their convictions were first affirmed by the Madison Circuit Court and, thereafter, by the Court of Appeals in a unanimous decision. We agree with the decisions of the lower courts, and affirm.
We first address the issue of whether phlebotomists and paramedics are within the class of persons who may draw blood from a DUI suspect.
Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a test under this section of
KRS 186.565 .1 (Emphasis added.)
All three movants argue that their test results were inadmissible because their blood was impermissibly drawn, since the phlebotomist and the paramedic do not fall within the class of a “physician, registered nurse or qualified medical technician.” They insist that a strict interpretation of the statute would exclude a paramedic or phlebotomist from drawing and testing blood, since they are not licensed. The Commonwealth disagrees and argues that a paramedic and a phlebotomist each fall
Whether a paramedic or phlebotomist is a “qualified medical technician” is a question of statutory interpretation. The legislature did not define in the statute what constitutes a “qualified medical technician,” nor does the Kentucky Board of Medical Licensure recognize or license medical technicians, certified or not. The legislature‘s failure to define the ambiguous phrase “medical technician” gives credence to our interpretation that its intent was to include paramedics and phlebotomists in the class of “medical technicians.” We believe that the phrase “duly licensed” was intended solely to modify the titles “physician” and “registered nurse” since these occupations are licensed by the Board of Medical Licensure. A “technician” is defined in Webster‘s Dictionary as a person who has learned the practical technical details and special techniques of an occupation. Webster‘s Third New International Dictionary (1965). A phlebotomist is trained to draw blood from the human body. Phlebotomists work primarily within hospitals, which are themselves highly regulated by federal and state laws. A hospital is required to adequately train and supervise its staff, including phlebotomists, in order to properly care for patients, to adhere to governmental regulations, and to avoid liability. A paramedic receives intensive training before being certified by the Commonwealth through its Board of Medical Licensure. Both phlebotomists and paramedics are “qualified” to work within their respective medical fields and can easily be classified as “medical technicians.” To delete these classes of individuals from the statutory scheme would lead to an absurdity, and we are not required to give the statute such an interpretation. See City of Owensboro v. Noffsinger, Ky., 280 S.W.2d 517, 519 (1955).
The trained phlebotomist who drew blood from Fortney worked solely for the Pattie A. Clay Hospital. It was stipulated by Fortney and the Commonwealth that the phlebotomist‘s only task at the hospital was to withdraw blood for pathology purposes. The paramedic who drew blood from Speers and Mullins was highly trained and certified by the Commonwealth and, as a part of his occupation, routinely drew blood. We believe that these individuals were “qualified medical technicians” as set forth in
Speers and Fortney2 next argue that the trial court erred in refusing to suppress the results of their blood tests because the blood samples were not taken after they were arrested, as required by
Any person who operates a motor vehicle in this state is deemed to have given his consent to a test of his blood, breath, urine, or saliva for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages or other substances which may impair one‘s driving ability. (Emphasis added.)
Such an argument, first of all, completely ignores the fact that where actual, express consent is had, as in these cases, there is no need whatever to address the fiction of “implied consent.”
Secondly, the legislative purpose of our “implied consent” law is to create a presumption, in the absence of express consent, that blood alcohol testing is lawful in DUI cases and that those who refuse such a test may have their operators’ licenses revoked administratively. Further, as correctly observed by the Court of Appeals, “Nowhere in the motor vehicle statutes, however, is it stated that an actual arrest must take place before the test is administered for the results to be admissible at trial.”
We agree with the Common
The implied consent statute does not infringe upon the constitutional rights of the DUI suspect. For the purposes of this statute, minimum due process requires probable cause to be established before the state can restrain and “search” a DUI suspect‘s body for evanescent evidence such as “blood, breath, urine, or saliva.” Once probable cause has been established, the police then must establish that the consent to search the suspect‘s body has been “freely and voluntarily” given. Schmerber, supra. In Schmerber, the U.S. Supreme Court held that the Fifth and Fourteenth Amendments to the United States Constitution are not implicated by the taking of blood samples from the suspect of a crime.
Under the Fourth and Fourteenth Amendments, a search conducted without probable cause is “per se unreasonable” subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). (Emphasis in the original and citations omitted.) And if the search is found to be illegal, the evidence which is a product of the unconstitutional search will be excluded at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). However, the U.S. Supreme Court has recognized that there are specifically defined exceptions which have been carved out of this general rule. One of the exceptions is consent. Schneckloth, supra 412 U.S. at 243-244, 93 S.Ct. at 2056. The standard for determining whether consent under the Fourteenth Amendment is valid is found in Schneckloth, wherein the Supreme Court stated:
We hold only that when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it [the State] demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all circumstances, and while the subject‘s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Id. at 248-49, 93 S.Ct. at 2058-59.
Thus the question becomes whether the DUI suspect‘s consent has been freely and voluntarily given when reviewed under the Schneckloth standard. Applying that standard to the facts in Speers’ and Fortney‘s cases, we find that there was no evidence of coercion, express or implied. Accordingly, the blood test results were clearly admissible at trial.
The decisions of the Court of Appeals, Madison Circuit Court, and Madison District Court are affirmed.
STEPHENS, C.J., and LAMBERT, REYNOLDS and WINTERSHEIMER, JJ., join in this opinion.
COMBS and LEIBSON, JJ., dissent by separate opinion.
Respectfully, I dissent.
The Majority Opinion misapplies the plain language of
COMBS, Justice, dissenting.
I respectfully dissent. Section 29 of our constitution gives all legislative power to the General Assembly. Section 28 forbids us to exercise any legislative power. The plain wording of
I also disagree with the majority‘s treatment of
In my view, the majority‘s re-writing of the implied consent statute is not only gratuitous, but unconstitutional as well.