IMPLIED CONSENT IS STATUTORY

 

there IS NO STATUTE  pertaining to an officer reading the implied consent form in the suspect’s language.
 
The statute says by driving they have consented to the test, and have a duty to withdrawn their consent…otherwise the reading of the rights even in a foreign language appeals to be in favor of the police.
 
 
 
308 SW 3d 720
COMMONWEALTH of Kentucky, Appellant,
v.
Tina RHODES, Appellee.
No. 2009-CA-000336-DG.
Court of Appeals of Kentucky.
April 2, 2010.
        Jack Conway, Attorney General, John Hayne, Assistant Attorney General, Frankfort, KY, for appellant.
        John Cornett, Georgetown, KY, for appellee.
        Before LAMBERT and STUMBO,
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Judges; WHITE,1 Senior Judge.
        OPINION
        LAMBERT, Judge.
        Tina Rhodes was arrested and charged with driving under the influence. On October 27, 2008, the Fayette District Court ruled that Rhodes’ conduct on the night of her arrest amounted to a refusal to submit to an intoxilyzer examination. Subsequently, the Fayette Circuit Court reversed the District Court’s ruling and held that Rhodes’ conduct did not amount to a refusal to submit to the exam. After careful review, we agree with the Fayette Circuit Court and affirm.
        On September 13, 2008, Rhodes’ vehicle was stopped by Officer Felinski. After determining that there was probable cause to believe that Rhodes was driving under the influence (DUI) of alcohol, Officer Felinski placed her under arrest. While Officer Felinski was trying to place Rhodes in the back of the police cruiser, she became combative, saying she did not want to wear the seat belt, etc. At one point, another officer, Officer Bradley, had to intervene in order to assist Officer Felinski in placing Rhodes in the back of the police cruiser. She was then transported to the Fayette County Detention Center.
        Officer Felinski escorted Rhodes into the intoxilyzer room with Officer Bradley following closely behind. Once inside the intoxilyzer room, Rhodes "started getting belligerent again, stating `I’m not going to be in here with him. You don’t have to make me be in here with him.’" Rhodes broke loose from Officer Felinski’s hands and went out into the officer’s work area. Officers Felinski and Bradley then made an attempt to escort Rhodes back into the intoxilyzer room. According to the officers, Rhodes was refusing to walk and was placing all her weight on the officer’s hands. Once inside the intoxilyzer room, the officers tried to place Rhodes in a chair, but she was continuing to be combative. At this point, a third officer had to come in to help restrain Rhodes.
        Officer Felinski testified that it was impossible for him to complete a reading of the implied consent warning to Rhodes despite trying on multiple occasions. He further testified that he "felt" like Rhodes would refuse to submit to the intoxilyzer testing, although he never made such a request.
        On October 27, 2008, the Fayette District Court conducted a refusal hearing and ruled that Rhodes refused to submit to an intoxilyzer exam. Rhodes appealed this ruling to the Fayette Circuit Court, arguing that she was not read the implied consent form in its entirety and therefore was never specifically asked to submit to the intoxilyzer exam. Rhodes argued that there cannot be a refusal to submit to an intoxilyzer exam if there is not a request to submit to such exam.
        On January 23, 2009, the Fayette Circuit Court issued its opinion reversing the decision of the district court and ruling that Rhodes did not refuse to submit to the exam because no request was made by the officers to conduct such an exam. This appeal now follows.
        On appeal, the Commonwealth argues that despite the language of KRS 189A.105(2)(a), the officers acted appropriately given the circumstances and correctly determined that Rhodes refused to take the intoxilyzer exam. Essentially, the Commonwealth asks this Court to make an
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exception for officers being required to read the implied consent warning to arrestees when they are unruly or belligerent. Because the statutory language is abundantly clear that police officers must read the implied consent to arrestees, we affirm the ruling of the Fayette Circuit Court.
        KRS 189A.105(2)(a) states:
At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver’s license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.18 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.18; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.
        (Emphasis added). Further, KRS 189A.105(3) states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
        As set forth in the above provisions, the implied consent warning is an integral part of the DUI statutes. It informs defendants of important rights and duties that are involved in such cases, as well as the consequences of their particular actions. The legislature has recognized the importance of the implied consent warning by the use of the mandatory language "shall." While reading the implied consent warning to the defendant is mandatory, there is no statutory requirement that the defendants understand or acknowledge the reading of the implied consent warning. The statute merely requires that the officer read the implied consent warning.
        The Commonwealth asks this Court to substitute the legislature’s mandatory language with its own permissive language. We decline to do so in light of the clear language utilized in the statute that this warning shall be read to all arrestees
[308 SW 3d 723]
or defendants. "The courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Holbrook v. Kentucky Unemployment Ins. Com’n, 290 S.W.3d 81, 86 (Ky.App.2009) (quoting Kentucky Unemployment Ins. Com’n v. Jones, 809 S.W.2d 715, 716 (Ky. App.1991)).
        A review of the evidence in this case indicates that although Rhodes was belligerent, the officers could have still read the warning to her. Nothing requires that Rhodes listen to the warning, instead only that the officers read it to her. Only once the warning is read can Rhodes then be deemed to have impliedly or explicitly refused. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky.2004) ("In order for there to be a refusal, there must first be a specific request that the person take the test, not just an inquiry whether the person would like to take it.") (Internal citation omitted).
        In defending the decision not to read the implied consent warning to Rhodes, Officer Felinski stated that given Rhodes’ conduct, he feared for his safety and that of the other officers. While we certainly sympathize with the officers and understand that their safety is of utmost importance, Rhodes was in handcuffs with three officers present, and we do not see how reading a warning to a handcuffed defendant would put the officers at any further risk. The officer’s argument that they could not have read the implied consent warning to Rhodes, who was handcuffed, is without merit.
        Based on the foregoing, we affirm the January 23, 2009, order of the Fayette Circuit Court reversing the Fayette District Court’s ruling that Rhodes refused to submit to the intoxilyzer exam. Given that Rhodes was never presented with the implied consent warning, she simply could not have refused to submit to the exam.
        ALL CONCUR.
        
——–
Notes:
        1 Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS)
 
 
 
KRS 189A.103 Consent to tests for alcohol concentration or substance which may impair driving ability — Test procedures — Who may administer – Personal testing.
The following provisions shall apply to any person who operates or is in physical control of a motor vehicle or a vehicle that is not a motor vehicle in this Commonwealth:
(1) He or she has given his or her consent to one (1) or more tests of his or her blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration or presence of a substance which may impair one’s driving ability, if an officer has reasonable grounds to believe that a violation of KRS 189A.010(1) or 189.520(1) has occurred;
(2) Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided in subsection (1) of this section, and the test may be given;
(3) The breath, blood, and urine tests administered pursuant to this section shall be administered at the direction of a peace officer having reasonable grounds to believe the person has committed a violation of KRS 189A.010(1) or 189.520(1).
(a) Tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet, and shall have been performed, as to breath tests, only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes.
(b) All breath tests shall be administered by a peace officer holding a certificate as an operator of a breath analysis instrument, issued by the secretary of the Justice and Public Safety Cabinet or his or her designee;
(4) A breath test shall consist of a test which is performed in accordance with the manufacturer’s instructions for the use of the instrument. The secretary of the Justice and Public Safety Cabinet shall keep available for public inspection copies of these manufacturer’s instructions for all models of breath testing devices in use by the Commonwealth of Kentucky;
(5) When the preliminary breath test, breath test, or other evidence gives the peace officer reasonable grounds to believe there is impairment by a substance which is not subject to testing by a breath test, then blood or urine tests, or both, may be required in addition to a breath test, or in lieu of a breath test;
(6) Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section; and
(7) After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his or her own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time. Provided, however, the non availability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 214, effective June 26, 2007. — Amended 2000 Ky. Acts ch. 467, sec. 8, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 6, effective July 1, 1991.
 
Helton v. Commonwealth, No. 2008-SC-000141-MR (Ky. 8/27/2009) (Ky., 2009)
     Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol. The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident. She claims that this practice violates KRS 189A.105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A.103. She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects in general are unconstitutional.
    More importantly, the fact that Appellant was unconscious at the time did not nullify her statutory implied consent. KRS 189A.103 focuses on whether the suspect affirmatively withdraws consent by refusing to submit to testing. The statute specifically addresses the continuing consent of one who is unconscious, effectively nullifying the right to refuse the test in cases of incapacity to refuse. This is a public policy judgment call that is solely within the province of the legislature, provided no constitutional rights are violated.
        This statutory aspect of Appellant’s argument, therefore, is fairly simple to resolve. Appellant consented to testing by operating a vehicle in Kentucky. She did not thereafter refuse to submit to testing and therefore did not withdraw her consent. Because Appellant "consented," the officer did not violate KRS 189A.105(2)(b) in failing to get a warrant to withdraw and test her blood, but this statutory implied consent provision cannot trump a constitutional prohibition on unreasonable searches because of the Supremacy Clause.
 
When the officer does have reasonable grounds, the test may be done on a person, even if she is unconscious, without violating the Fourth Amendment. If, as in Schmerber, the state can require a conscious person, who has actually refused, to submit to the blood test due to exigent circumstances and the existence of probable cause, then it makes no difference what a person’s state of consciousness is. But this step is not reached at all unless the officer had probable cause to search in the first place.
        Consequently, this Court’s review of the blood test search in this case turns on whether the officer had probable cause to believe that Appellant had violated the DUI statutes when he requested the blood test. Unfortunately, that is not in the record, meaning that the trial court did not engage in the whole analysis necessary to decide Appellant’s suppression motion.
Conclusion
        The judgment is hereby vacated and this case is remanded for a new suppression hearing to determine whether the evidence establishes that the police had reasonable grounds to believe alcohol was involved in the accident.
 
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