Court Appeals Allows Blood Test of Unconscious Defendant Suspected of DUI

The Court of Appeals issued a decision on Friday August 7th. which held that a Blood Test ordered by police officer at hospital was admissible even though the officer testified that he filled out the consent form and he believed the defendant was unconscious.

 

The court held that no search warrant was required.  They based their ruling on the claim that all motorists have given their consent to blood tests due to KRS 189A.103  the implied consent statute.

 

The court said: “unconsciousness does not invalidate implied consent. KRS 189A.103(2).”

 

Section (2) of KRS 189A.103 says:

 

 “(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who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided in subsection (1) of this section, and the test may be given;”

 

This raises a question of liability of the medical personnel taking the blood test. 

Is the consent mentioned in KRS 189A.103 sufficient to negate the patient’s right to have informed consent for any medical procedure?

 

It is one thing to say that the results of a Blood Test are admissible into evidence, but it is another issue as to whether KRS 189A.103 overrides KRS 333.160 which limits who may take blood tests.

 

Further a blood test taken for evidentiary purposes is not the same as a blood test necessary for the treatment of the patient.

 

Some hospitals are refusing to perform blood tests for DUI purposes unless a prescription has been issued by a physician authorized to make medical decisions.

 

BLOOD TESTS MUST BE AUTHORIZED BY A PHYSICIAN:

 

Kentucky DUI law has been expanded by court rulings that allow EMT personnel in some instances to take a blood sample from a defendant charged with DUI. In common practice police also take defendants to hospitals and the nursing staff frequently takes a blood sample for use by the police without a doctor’s prescription (i.e. authorization).

 

We believe that any blood sample taken without a prescription (i.e. physicians authorization) is illegal. See KRS 333.160 which spells out “who may collect human specimens”. 

 

At the bottom of this report is a copy of the text of  “KRS 333.160 Who may collect human specimens.” 

 

This is justification for the argument that nurses and non-licensed physicians must be authorized by a physician before they can draw a blood sample. If a hospital allows such a procedure without the physician’s authorization they have violated this statute. 

 

A hospital in Paducah has refused to allow its nursing staff  take blood samples at the request of police officers in the absence of a physician’s authorization. We note that KRS 333.990 makes it a misdemeanor for anyone to take a blood sample without a physician’s authorization.

 

Any hospital or clinic that allows its personnel to take blood samples without a physician’s authorization is treading on thin ice and are subjecting themselves to liability for any injuries caused by the procedure (i.e. infection, damage to a nerve etc.).

 

 The penalty section of KRS Chapter 333 says:

 

KRS 333.990 Penalties.

The performance of any of the acts specified in KRS 333.240 or for violation of any other

provision of this chapter or of any rules and regulations of the board adopted hereunder

shall constitute a misdemeanor punishable, upon conviction, by a fine of not less than

$300 nor more than $500 or by imprisonment for not more than one (1) year, or by both

fine and imprisonment.”

 

 While court rulings have said that nurses and EMT personnel and phlebotomists may withdraw blood samples, the applicable statutes still require that they must be authorized to do so by a licensed physician. No court ruling has said that a blood test can be taken without a physicians authorization. 

 

It is one thing for the court to say that a blood test may be introduced into evidence, but it appears to be illegal if the blood specimen was taken without a physicians “authorization”.

 

We caution that admissibility of evidence and legality of how the evidence are obtained are legal issues which have not been clearly ruled on in Kentucky.

We are not aware of any appellate decision in which the court has clearly addressed the issue: Can a blood test obtained in violation of the law be admitted into evidence?

Stan Billingsley – LawReader

 

***

Definitions of surgery

Surgery is a medical technology consisting of a physical intervention on tissues. As a general rule, a procedure is considered surgical when it involves cutting of a patient’s tissues or closure of a previously sustained wound.

 

 

 

 

For full text of case click case number 2008-CA-001465

 

LAMONT ROBERTS

 

APPEAL FROM JEFFERSON CIRCUIT COURT

v. HONORABLE MARTIN F. MCDONALD, JUDGE

ACTION NO. 06-CR-004034

 

COMMONWEALTH OF KENTUCKY

 

Appellant argues that the police officers violated both his statutory and constitutional rights when they failed to acquire either his consent or a search warrant prior to the blood test

 

(Strong evidence suggests the defendant was unconscious at time officer “asked” for consent at hosptial.)

 

In light of the statutorily implied consent, the  Commonwealth herein did not have to prove

that Appellant voluntarily consented to the blood test. Clearly, there is no evidence of a “positive refusal” by Appellant to the test

 

KRS 189A.103 governs implied consent in DUI cases…The language “‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.” Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2).

 

 

 

AFFIRMING

** ** ** ** **

BEFORE: DIXON AND KELLER, JUDGES; KNOPF, SENIOR JUDGE.

 

DIXON, JUDGE: Appellant, Lamont Roberts, was convicted in the Jefferson Circuit Court of second-degree manslaughter and driving under the influence

(DUI), 2nd offense. He was sentenced to seven and one-half years’ imprisonment and fined $500. He now appeals to this Court as a matter of right On December 18, 2006, Appellant was indicted by a Jefferson County

Grand Jury for murder, illegal possession of a controlled substance (cocaine), and DUI 2nd offense.

 

At the close of trial, Appellant was found guilty of second-degree manslaughter and DUI, 2nd offense. The jury recommended, and the trial court ultimately sentenced Appellant to a total of seven and one-half years’ imprisonment and fined him $500. This appeal ensued.

 

Appellant argues that the trial court erred by denying his motion to suppress the toxicology report showing the blood-alcohol results. Appellant argues that the police officers violated both his statutory and constitutional rights when they failed to acquire either his consent or a search warrant prior to the blood test. We disagree.

 

Officer Shoenlaub first testified that Appellant may have been unconscious at the time he attempted to have him sign the consent form.

 

Officer Shoenlaub then stated that he read the consent form to Appellant in the presence of the hospital chaplain, and that he believed Appellant consented by

nodding his head. Since Appellant was unable to sign his name at that time, Officer Shoenlaub checked off the appropriate boxes on the form

 

Officer Shoenlaub again conceded that Appellant may have slipped out of consciousness as he was attempting to gain his consent for the test

 

Certainly, Officer Shoenlaub presented conflicting testimony as to Appellant’s consent. However, we are of the opinion that such is essentially irrelevant because there is no evidence that Appellant expressly refused to submit to the test

 

KRS 189A.103 governs implied consent in DUI cases…The language “‘has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.” Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2).

 

In light of the statutorily implied consent, the Commonwealth herein did not have to prove

that Appellant voluntarily consented to the blood test. Clearly, there is no evidence of a “positive refusal” by Appellant to the test. See Cook v. Commonwealth, 129

S.W.3d 351, 360 (Ky. 2004).

 

Because Officer Shoenlaub did not follow the dictates of KRS 189A.105, Appellant argues that the blood test should have been deemed inadmissible. Again, we disagree.

 

the Kentucky Supreme Court held in Beach v. Commonwealth, 927 S.W.2d 826, 828 (Ky. 1996),

Exclusion of evidence for violating the provisions of the informed consent statute is not required. It has been held

in Kentucky and elsewhere that in the absence of an explicit statutory directive, evidence should not be

excluded for the violation of provisions of a statute where no constitutional right is involved. See Little v.

Commonwealth, Ky., 438 S.W.2d 527 (1968). The Commonwealth cites a number of authorities from other

state and federal courts. We find the language of the Wisconsin Supreme Court to be persuasive.

 

Accordingly, we conclude that neither Appellant’s statutory or constitutional rights were violated. As a driver on the roads of Kentucky, Appellant is bound by the implied consent laws. As such, he is deemed to have consented to the blood test and the trial court properly admitted the toxicology report.

 

The judgment and sentence of the Jefferson Circuit Court are affirmed.

 

ALL CONCUR.

 

BRIEF FOR APPELLANT:

Gene Lewter

Department of Public Advocacy

Frankfort, Kentucky

 

BRIEF FOR APPELLEE:

Jack Conway

Attorney General of Kentucky

Christian K. R. Miller

Assistant Attorney General

Frankfort, Kentucky

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