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KENTUCKY’S VIEW OF BIRCHFIELD

Birchfield involves a trilogy of cases dealing with criminalizing a refusal to submit to a blood or breath test in  DUI prosecutions. The Birchfield holding was significantly different as it distinguishes prosecutions of breath and blood refusals. The Birchfield Court held that you could criminalize the refusal to take a breath test in DUI prosecution because it was not coercive. Giving a breath test involves no intrusion into your body. The same could not be said for a refusal to submit to a blood test. The Court held that it is one thing to approve Implied Consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a state to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. Birchfield points out that the civil penalties and evidentiary consequences on motorists who refuse to comply with breath testing are not unconstitutional nor an unlawful requirement.  Simply put, Birchfield holds it is an unlawful intrusion to require blood testing under implied consent laws without a warrant. In the vast majority of cases, breath testing is available, and generally, there is no reason to require blood. Birchfield further holds it is unconstitutional to infer guilt for a refusal of blood testing. You cannot tell a jury the defendant would have submitted to blood testing if he was not guilty.

Birchfield has left open whether it is unconstitutional to suspend someone’s license pretrial, or otherwise, for refusing blood testing. By dicta, the cases hold there is nothing wrong with civil penalties for refusals, be it blood or breath testing.

Kentucky first looked at Birchfield in the case Commonwealth v. Brown, 560 S.W.3d 873 (Ky. App. 2018). Brown had lost control of her auto and hit a tree seriously injuring herself and killing her passenger. Kentucky did not criminalize the failure to submit to blood testing by statute. There is no separate statute that makes it a crime to refuse blood testing. The Kentucky statute dealing with this issue is contained in the implied consent statute that doubles, and makes mandatory, incarceration for refusal of blood or breath testing for a second offense DUI or more.

Brown concluded Birchfield does not apply to the facts of that situation in that no 4th Amendment violation occurred. Brown held the mandatory minimum jail sentences are unquestionably criminal in nature; yet, the sanction is contingent upon conviction of the underlying DUI charge. The Court held that the statute lacked the coercive force of mandating the accused undergo an intrusive test or else accrue an additional criminal charge.  The Court noticed that if there is no conviction of an aggravated DUI (for a refusal of blood or breath testing) the sanction does not even apply.

The Kentucky Supreme Court looked at this issue in McCarthy v. Commonwealth, 628 S.W.3d 18 (Ky. 2021). McCarthy was convicted of 4th offense DUI and was sentenced to 2 years imprisonment. He argued on appeal that the trial court committed reversible error by allowing his refusal to take a warrantless blood test into evidence. McCarthy reviewed Birchfield and noted that the search incident to arrest doctrine does not justify the warrantless taking of blood. The case noted that prior opinions have referred approvingly to Implied Consent that imposes civil or evidentiary penalties. McCarthy held that the enhanced penalties for refusal of blood testing; however, are unconstitutional. Further, the Commonwealth cannot use a refusal of a blood test as evidence at trial of intoxication or as an aggravating circumstance for mandatory jail.

McCarthy left unanswered the question of whether a refusal of blood testing can be used to suspend someone’s license pre-trial or after an acquittal of a DUI charge.

McCarthy instantly got the attention of all county governments as it dealt with prosecuting DUI cases. Local governments thought they would no longer be able to obtain convictions in these kinds of cases. To remedy this Kentucky has introduced a bill in the General Assembly being HB 154. This bill was enacted on April 5, 2022, and is now effective.  The bill basically rewrites KRS Chapter 189A to attempt to conform the statute to be consistent with Birchfield. The bill removes refusal of blood testing as an aggravated DUI. This means in reference to blood testing that there is no more mandatory incarceration for a conviction when refusal of blood testing is involved. KRS 189A.105 continues to state that a refusal of blood testing can be used as evidence of guilt. This is obviously in violation of McCarthy.

The new bill continues to hold that refusal of blood testing will result in the suspension of driving privileges by the Court at the time of arraignment. More importantly, the new statute removed the requirement that a warrant could only be obtained when a person is killed or suffers serious physical injury as a result of the DUI charge. It would appear that the way McCarthy and Birchfield are written, civil penalties for refusing blood testing are not unconstitutional. However, this has not yet been determined.

Stay tuned, more to follow.

About Wilbur Zevely

Wilbur Zevely
Wilbur M. Zevely is a partner in the Florence, KY law firm Busald Funk Zevely, PSC. He has practiced law since 1972. He concentrates his practice in criminal law, domestic relations, and DUI cases. He has defended thousands of clients in criminal trials before Judges and juries. He has practiced throughout Kentucky and Southern Ohio. Mr. Zevely received his B.S. degree in Chemistry from the University of Cincinnati in 1968 with a minor in math. His J.D. is from Salmon P. Chase School of Law in 1972. Prior to entering the practice of law, he worked as a chemist for The Monsanto Co., under contract with the United States Atomic Energy Commission. For many years, Mr. Zevely, has lectured on DUI issues for the Kentucky Association of Criminal Defense Lawyers, (KACDL), the KY Bar Association, the Northern KY Bar Association, and the Kentucky Department of Public Advocacy. He taught for more than 10 years at the week long basic training course at Faubush, KY for the KY Department of Public Advocacy. He writes a regular column on DUI tips for the KACDL news letter. In the early 1970’s Mr. Zevely, incorporated “The 15th Judicial District Public Defender, Inc.,” this was the first State funded Public Defender program in the Northern KY area. Mr. Zevely ran the program for years. The program represented indigent clients in Boone, Gallatin, Grant, Carroll, and Owen Counties. Mr. Zevely along with retired Judge Stanley Billingsley authors the Kentucky Driving Under the Influence Law Book which is a West Law Publication. The book is rewritten annually, and has been published for 19 years. Mr. Zevely has served as director of the KACDL since its formation. Mr. Zevely is a member of the Kentucky Bar Association, the Ohio State Bar Association, KACDL, NACDL, and is admitted to practice in Federal Court for the Southern District of Ohio and the Eastern District of Kentucky. Mr. Zevely received the 2014 Distinguished Lawyer award from the Northern Kentucky Bar Association. He also received the 2015 Lifetime Achievement award from the Northern Kentucky Bar Association.

If you would like to contact the author, please visit: http://www.bfzlaw.com


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