LEXINGTON CASE RAISES ISSUE OF EXCESSIVE COST OF DUI BLOOD TEST IN FAYETTE DUE TO UK HOSPITAL CHARGING 7 TIMES WHAT OTHER KENTUCKY LABS CHARGE. COURT IS ASKED TO SUPPRESS EVIDENCE DUE TO FAYETTE COUNTYS DENIAL OF DUE PROCESS.

LEXINGTON CASE RAISES ISSUE OF EXCESSIVE COST OF DUI BLOOD TEST IN FAYETTE DUE TO UK HOSPITAL CHARGING 7 TIMES WHAT OTHER KENTUCKY LABS CHARGE. COURT IS ASKED TO SUPPRESS EVIDENCE DUE TO FAYETTE COUNTYS DENIAL OF DUE PROCESS.

DUI defendants in Carroll County can go to the local hospital and obtain a DUI blood test for only $61.00. But In Fayette County the police will only take a defendant to the UK hospital and facilities managed by UK and the typical charge is $424.00. If the defendant can’t raise this amount of cash, then he is denied his right to an independent blood test.

UK Hospital is a state operated facility. The Commonwealth has apparently not attempted to take reasonable steps to help the defendant obtain the independent blood test authorized by KRS 189A.105(4).

Fayette by selecting a blood testing lab that charges $424, when other facilities charge on $61, is alleged to be denying the defendant the independent blood test authorized by the Legislature.

The result of the defendants argument is that Fayette County by mandating blood testing be conducted at the Univ. of Ky. Hospital, is effectively overruling rights created by the Legislature.

SEE PLEADINGS FILED IN THIS ACTION:

COMMONWEALTH OF KENTUCKY
FAYETTE COUNTY DISTRICT COURT
SECOND DIVISION
CASE NO.: 13-T-08547

COMMONWEALTH OF KENTUCY PLAINTIFF
(COUNTY OF FAYETTE)

vs.

JASON W. GREENE DEFENDANT

DEFENDANT’S RESPONSE TO MOTION TO QUASH SUBPOENA

The Defendant, Jason Greene, through Counsel responds to the University of Kentucky’s motion to quash his subpoena as follows.
INTRODUCTION
The University submitted a seven page motion which can be summed up in a paragraph. The University has objected to the subpoena pursuant to Kentucky Rule of Criminal Procedure 7.02(3) on the grounds the subpoena is purportedly unreasonable and oppressive. While the University is completely silent concerning the number of witnesses and the amount of effort it would take to comply with the Defendant’s subpoena, one can readily ascertain from reading the University’s motion that at least two Representatives will be required to appear at the suppression hearing. The University also argues that the topics and issues relating to its blood testing addressed in the subpoena are irrelevant to Defendant’s argument relating to the extraordinary cost required by the University in comparison to other regional hospitals. The University claims a subpoena is unnecessary because it allegedly offered to provide an affidavit which addressed what it deems as issues relevant to Defendant’s argument. Lastly, instead of detailing the allegedly burdensome and oppressive nature of the subpoena, the University elects to argue the Commonwealth’s case and while doing so relies upon non-controlling authority from Vermont and Georgia.
FACTS
Defendant moved for suppression of the Intoxilyzer results because he was denied an independent blood test based upon the extraordinary cost of the test required by UK Healthcare. After his arrest and after the Defendant was informed by the Officer of his right to a blood test, he was also informed by the arresting Officer that he could pay between $400 and $600 for a blood test which would be taken at University Hospital. The Officer did not provide any less expensive alternatives. The University has since confirmed the cost of the blood test for a DUI arrestee is $424.00. The arresting officer allowed Greene to contact friends and family members to coordinate payment and Greene did so. But in the end, although Greene wanted the independent blood test he could not afford to pay between $400 and $600 for the test.
While the Officer indicated he would be taken to “UK”, through the DUI implied consent card Greene was informed he had a choice to take a blood test at either University Hospital or Good Samaritan. In reality when it comes to hospitals, Greene had only one choice because UK Healthcare controls and operates both hospitals. “UK Hospital” locally known as the University of Kentucky Chandler Medical Center is an agency of the state, as it operated under the direction and control of the state and is funded by the state treasury. See Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997). Over a decade ago, it was established that UK Hospital was entitled to sovereign immunity. See Id. Accordingly, the Commonwealth via the University and UK Healthcare is setting the price of the independent blood test offered in Fayette County.
UK Healthcare through University Hospital and Good Samaritan Hospital charges DUI suspects in Fayette County $424.00 for an independent blood test. In preparation for the instant suppression hearing, Defendant sought to obtain information about the cost of independent blood tests offered to DUI suspects outside of Fayette County. The first two counties the Undersigned engaged that were willing to provide information concerning the cost of the independent blood test were Carroll and Woodford Counties. Carroll County Memorial Hospital charges $61.00 for an independent blood test while Bluegrass Community Hospital located in Versailles charges $78.75. Thus, UK Healthcare charges DUI suspects 693% more for an independent blood test than similarly situated persons who are arrested in Carroll County and 538% more than similarly situated persons who are arrested in Woodford County.
A DUI arrestee has a due process right to an independent blood test which is statutorily conferred upon him under KRS 189.103(7). This right is derived from the right of an accused to attempt to obtain exculpatory evidence, the Commonwealth’s duty to accommodate the arrestee’s ability to obtain exculpatory evidence and the short-lived nature of blood alcohol evidence. On its face, UK Healthcare’s action of charging $424.00 per blood test puts a person arrested in Fayette County at a severe disadvantage to preserve potentially exculpatory evidence and thwarts his ability to exercise his due process right when compared to persons who pay substantially less for the same blood-alcohol evidence when arrested elsewhere. The University’s act also invokes equal protection questions.
The Undersigned served the University of Kentucky through its General Counsel with a subpoena requesting that a representative or representatives of the University appear and provide answers and explanations concerning the medical basis for charging a Fayette County DUI suspect several hundreds of dollars more for the same blood test offered in Woodford and Carroll counties. Now the University moves to quash the subpoena.
ARGUMENT
At the outset, Kentucky law affords the trial court with great discretion in ruling upon such motions to quash and an appellate court will not interpose to control the exercise of such discretion by a court of original jurisdiction, unless there has been an abuse or a most unwise exercise thereof. See Commonwealth v. House, 295 S.W.3d 825, 828-829 (Ky. 2009). Defendant will address the University’s arguments in the order presented.
I. The subpoena is not oppressive and the material requested within is not irrelevant.
The University argues that the subpoena is oppressive because no one person at the University has knowledge concerning all of the issues addressed in the Defendant’s subpoena. Further the University argues that the Defendant’s requests are irrelevant to the arguments presented within his suppression motion.
Kentucky has adopted the federal court approach for determining if a subpoena is oppressive which was set forth in United States v. Nixon, 418 U.S. 683, 698-99, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). See Commonwealth v. House, 295 S.W.3d 825, 828 (Ky. 2009). The moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” Id.
The litany of issues and topics addressed in Greene’s subpoena propounded upon the University ask for information and documentation pertaining to the real (or “wholesale”) cost of blood testing performed by the University. Because there is such a great cost disparity between the cost of the test performed by the University and the same test performed outside of Fayette County, the Defendant has sought information and documentation in an attempt to understand the difference in charges. The Defendant has asked the University to provide information about the equipment and the cost of the equipment to perform a blood test. The Defendant has asked the University to answer whether special credentialing is necessary to draw blood and the cost of any such credentialing to ascertain if said credentialing contain the “hidden” charges which raise the University’s rate for blood tests approximately 700% over the costs in other counties. The Defendant has asked for the University to provide information as to the costs of blood testing for normal everyday patients. Similarly, the Defendant asked the University to supply information concerning the charges for the blood test when applied to the Commonwealth for law enforcement purposes.
The Defendant also subpoenaed the University to provide information about the possible discriminatory impact of its $424.00 charge. He did so by subpoenaing the University to produce the number of blood draws requested by DUI suspects and completed by University Hospital and Good Samaritan Hospital to be compared with the number requested and completed for usage by the Commonwealth during the same time period. All of the foregoing information and documentation requested are evidentiary and relevant to the Defendant’s argument that a due process and equal protection violation has occurred. Thus, the University’s argument fails on House’s first criteria.
House, supra requires that the Defendant that the information and documentation requested are not otherwise reasonably procurable in advance of trial, or in this case a suppression hearing, by exercise of due diligence. All of the information requested is known only to the University. The University only agreed to confirm the cost of its blood testing prior to the original August 8th hearing. No amount of due diligence exercised by the Defendant would lead to the procurement of the information requested without the cooperation of the University, which is lacking. The University’s argument fails the second prong.
Thirdly House requires that the party cannot prepare for trial without the information subpoenaed. If this prong is taken in context of a suppression hearing, clearly the Defendant’s argument will be irreparably damaged if the University refuses to produce the information requested. As Defendant has acknowledged it appears to be his burden to submit evidence in favor of a finding that the Commonwealth (in this case via the University) has denied him his due process rights and denied him equal protection under the law. If the hearing begins with the supposition that the University’s $424.00 charge due a DUI suspect is unreasonable for the implied purpose of obtaining exculpatory evidence when compared to the medical cost of the same test performed in other counties, then, presumably the Defendant is not in need of any of the subpoenaed information. In other words, it would be the Commonwealth’s burden to prove that the $424.00 cost is reasonable for its intended purpose (e.g. to test the suspects blood alcohol level) and it has not been artificially increased to deprive the preservation of exculpatory evidence. But it is more likely that this Court will require the Defendant to prove that the University’s cost is arbitrary, capricious, unreasonable and the implementation of these extraordinary costs resulted in a violation of the protections inherit in the Fourteenth Amendment. If this Court determines the burden falls to the Defendant then it follows that the University loses the third prong of the analysis.
Lastly, House requires the moving party to be exercising good faith and to have not commenced a general “fishing expedition”. A good faith basis should be self-evident based upon the extreme cost differential when comparing the University’s cost and the costs in hospitals outside Fayette County. Defendant avers that he has done his best to ask for all relevant information and documentation concerning the cost to the University to discover if there is a valid medical reason for a Fayette County arrestee paying approximately 700% more for a potentially exculpatory blood test than a Carroll County arrestee. The University’s argument fails the fourth prong of House. It is also worth noting that the number of witnesses a party is required to produce does not enter the analysis prescribed by House.
II. The University’s Affidavit is Unsatisfactory and a Poor Substitute for Live Testimony

The University argues that since it can produce an affidavit with information concerning charges for the blood test there is no need to present live witnesses. In its motion and for the first time the University breaks down the components of the testing into three categories: (1) $29 for venipuncture (sticking the needle and drawing the blood); (2) $163 to perform the serum alcohol test; (3) and $232 for a ED Level A visit…” which the University is quick to point out is the lowest level ED visit that a person may be billed. (See Motion at p. 5).
The Roark Affidavit presents more questions than answers. Why does the “blood-serum test” performed by the University cost more than twice the amount of the entire blood alcohol test performed by other regional hospitals? Is there a cheaper but reliable alternative the University may offer? What are the steps taken when performing the test and how are those different than other counties? Is the blood-serum outsourced to another laboratory? Is the blood-serum examined in house? Can the testing be performed cheaper (whether in-house or whether outsourced)? What is the cost to the Commonwealth for the same test? What is the cost to the average patient for a blood test? If a DUI suspect is simply requesting a blood test and exhibits no need for medical attention whatsoever, why is it necessary to subject that individual to a “ED Level A visit”? If the DUI arrestee is not in need of medical attention but simply requests a test to preserve exculpatory evidence, why is it necessary to have their vital signs checked? What other services are provided during an “ED Level A visit” and what equipment and supplies are used which account for the $232.00 cost? Does the University check the vital signs or subject every patient to whatever a “ED Level A visit” requires before taking a routine blood draw? Is every patient, for example a diabetic patient, charged an additional $232 when obtaining a blood sample?
The Affidavit does not address these questions among many others and the affidavit does not speak to the potential discriminatory impact of the high cost assigned to a DUI arrestee. Production of a witness or witnesses is necessary to address these issues.
III. No testimony has been taken from Greene, therefore the University’s Arguments concerning the merit of Defendant’s motion to suppress are uninformed.

Next the University assumes the Commonwealth’s role and attempts to argue that Defendant’s motion to suppress is meritless. The University contends that since Greene argued that he is indigent that all issues may be resolved without the production of any witnesses. The University’s argument is uninformed for the following reasons.
While at the time of his arrest Greene was not employed and could be considered indigent, the Defendant submits that the testimony will reflect that the police officer allowed him to contact his girlfriend to procure funds to pay for an independent blood test. Neither Greene nor his girlfriend have testified, but it is believed that their testimony will reflect that she could have arrived at the University to help Greene pay a reasonable amount for an independent blood test (e.g. $61.00, $78.75 and perhaps more). Contrary to the University’s assertion (see Motion at page 5), Greene will argue that if the charge for a blood test was lower and reasonable (e.g. $61.00 or $78.75) he could have paid it with the assistance of his girlfriend. Accordingly the University’s argument which relies upon authority from Vermont, State of Vermont v. Benior, 174 Vt. 632, 819 A.2d 699 (2002), is unpersuasive.
In the Vermont case the Court determined that an indigent DUI suspect is not constitutionally entitled to have the state pay for an independent test. Id. at 702. Greene is not arguing that he was denied his due process rights because the Commonwealth did not pay for the blood test. He is arguing that on the face of the information available to the Defendant it appears the University is systematically denying DUI arrestees the ability to obtain exculpatory evidence by unnecessarily inflating the cost of a routine blood-alcohol test without a legitimate reason. Or in the alternative, the University’s has raised its cost to impede, frustrate and dissuade a suspect from obtaining the test. The facts of Benior are inapposite because Greene could have paid for a blood test at a reasonable cost.
The irony should not be lost on the Court that the University cites a Vermont case from 2002 wherein the cost of a blood alcohol test was Fifty Dollars ($50.00). Interestingly, the cost of living in Vermont far exceeds the cost of living in Kentucky. Nonetheless, the University appears to contend in its motion that paying $424.00 for a blood-alcohol test is reasonable.

IV. Comparing costs in other jurisdiction to the cost charged by the University is relevant to the Defendant’s Due Process and Equal Protection arguments.

The University submits that the fact it “charge(s) more than small rural hospitals in the state is irrelevant.” (See Motion at p. 7). And, it argues in a little bitty footnote “comparing the charges of a large academic medical center located in Lexington, Kentucky to the charges of two rural hospitals is truly an example of comparing apples and oranges.” (Motion footnote #1 p. 7). Baloney! Not one word of the University’s motion is dedicated to explaining the substantial difference in cost required by a “large academic medical center” vis a vis the costs of “small rural hospital(s).” Yet, the University would have this Court rely upon its conclusion that a learned and prestigious large academic medical center cannot figure out how to perform a blood alcohol test for less than $400.00. The entirety of the Defendant’s motion and subpoena is dedicated to discovering the reasoning for why the University has subjected this Defendant (and potentially many others) to this extraordinary cost and if the University is categorically denying DUI arrestees their statutory right to an independent blood test by unnecessarily and unreasonably inflating its costs without justification. The University’s witnesses need to show up at 9:00 a.m. August 22, 2013 in the Fayette District Courthouse, 150 North Limestone, Lexington Kentucky, Courtroom Number 2 and put their mouths where the University’s money is.
WHEREFORE, for the foregoing reasons the Defendant moves the Court to DENY the University’s motion to quash.

Respectfully submitted,

John L. Tackett Attorney at Law PLLC
The Lexington Building
201 West Short Street, Suite 310
Lexington, Kentucky 40507
Telephone: 859-576-9272
Facsimile: 859-253-9824

BY: _______________________________
JOHN L. TACKETT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent on this the ____ day of August 2013 to the following:

Hon. Clifton Iler
Associate General Counsel
University of Kentucky
301 Main Building
Lexington, Kentucky 40506

Hon. J.J. Alleman
Assistant Fayette County Attorney
110 West Vine Street Ste. 400
Lexington, KY 40507
Attn: Prosecutions/Second Division

Clerk, Fayette District Court
Fayette District Courthouse
150 N. Limestone
Lexington, KY 40507

_________________________________
John L. Tackett

Defendant moved the Court to suppress the breath test due to the exorbitant cost of the statutorily prescribed independent blood test under the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the United States Constitution. See Fourteenth Amendment Constitution of the United States. When the motion was previewed before the Court on August 8, 2013 the Court directed the Undersigned to provide case law or authority supporting Defendant’s argument to suppress the breath results due to the blood test due to the extraordinary cost. While an independent blood test is a statutorily prescribed right which must be offered to all DUI suspects who submit to the Officer’s test (see KRS 189A.105) there is scant case law concerning the independent blood test. This appears to be a case of first impression.
The Fourteenth Amendment to the Constitution of the United States provides: “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” In this case the persons who are cited with DUI and offered an independent blood test in Fayette County are being discriminated against by having to pay nearly 700% more than similarly situated persons arrested in Carroll County Kentucky and almost 550% more for those arrested in Woodford County Kentucky. Defendant has subpoenaed witnesses from UK to request information pertaining to what objective is being served by fixing such an extremely high price for a routine blood draw. Because of the great disparity between the price of the test in Fayette County and the prices in neighboring Woodford County and in Carroll County (located between Louisville and Cincinnati) the Defendant has subpoenaed employees from the University of Kentucky to provide information whether there is a medical need for such a high cost.
The Fourteenth Amendment’s promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 271-272, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979); F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920). The United States Supreme Court “attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, (the Court) will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” See, e. g., Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993).
A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 86 L. Ed. 1655, 62 S. Ct. 1110 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. Ed. 220, 6 S. Ct. 1064 (1886)). When an entity controlled by the government acts to make it nearly 700% more difficult for a person to exercise a right conveyed to them under a statute, then equal protection under the law has been denied. There does not appear to be any legitimate purpose for UK Healthcare to upcharge a DUI suspect $424.00 for a

Romer v. Evans, 517 U.S. 620, 633-634, 116 S. Ct. 1620, 134 L. Ed. 2d 855, 1996 U.S. LEXIS 3245, 64 U.S.L.W. 4353, 70 Fair Empl. Prac. Cas. (BNA) 1180, 68 Empl. Prac. Dec. (CCH) P44,013, 96 Cal. Daily Op. Service 3509, 96 Daily Journal DAR 5730, 9 Fla. L. Weekly Fed. S 607 (U.S. 1996)

While the cost of the test examined by itself may appear neutral, it has a substantially discriminatory impact upon poor and indigent persons. It seems to have a discriminatory purpose of denying all but the very wealthiest of Kentuckians the right of an independent blood test which has been conferred upon them by statute. When a law or governmental action is challenged under the Equal Protection Clause, it is subjected to either strict scrutiny, intermediate scrutiny or a rational basis test. The burden of the justification of the action rests entirely with the state (when describing intermediate scrutiny). United States v. Virginia 116 S.Ct.2274, 2275 (1996).
Even if it fits under rationale basis the challenger can win against the state: Romer v. Evans, 116 S.Ct. 1620 (1996), City of Cleburne v. Cleburne Living Center Inc. , 473 U.S. 432 (1985), Zobel v. Williams 457 U.S. 55 (1982)United States v. Moreno 413 U.S. 528 (1973).
For rational basis there has to be a legitimate purpose for the University to charge 600% more than other hospitals.
“Social and economic legislation … that does not employ suspect classifications or impinge upon fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a government purpose. Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality.” Hodel v. Indiana 452 U.S. 314, 331-332 (1981).
Met Life Insurance Company v. Ward: (Court declared Unconstitutional a state law that attempted to encourage growth of an in-state insurance industry by taxing in-state companies at much lower rates than out of state companies doing the same business. 470 US 869 (1985).
Discrimination against the poor- Griffin v. Illinois violated equal protection to deny free trial transcripts to indigent criminals defendants who were appealing their convictions. 351 U.S. 12 (1956). “in criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. At p 17.
In Harper v. Virginia Board of Elections, the Supreme Court declared unconstitutional a poll tax for state and local elections and said that “lines drawn on the basis of wealth and poverty, like those of race are traditionally disfavored.” 383 U.S. 663 (1966).
(shepardize this 5-4 decision –discrimination against poor does not warrant heightened scrunity- 411 US 17-29)
Lack of personal resources has occasioned the loss of a statutorily prescribed right.
Proving a discriminatory purpose – look at page 586 Yick Wo

Kentucky’s appellate courts have consistently held that an individual arrested for driving under the influence who has submitted to the initial test administered by the state “is allowed an independent test to obtain another result to compare with or controvert the police officer’s test”. Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003), Commonwealth v. Minix, Ky., 3 S.W.3d 721, 724 (1999); see KRS 189A.103(7) (emphasis added). The relevant statute which guarantees this right KRS 189A.103(7) states as follows: 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 own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer….” (emphasis added) “Not only must a person be afforded the right to an independent blood test, but they must also be informed of this right under KRS 189A.105 as well as some other rights that attach upon the individual’s submission to a breath, blood or urine test.” Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003). Defendant was denied this right and as a result the breath results must be suppressed.
Moreover, Defendant moves for suppression of the breath results on the basis that he was denied access under the “totality of circumstances” doctrine as adopted by Kentucky’s appellate courts in Commonwealth v. Long, Ky. Ct. App., 118 S.W.3d 178, 181, (2003). The Implied Consent Card used by the arresting officer only provided the Defendant with two “choices” of where he was to be transferred to obtain an independent blood test, UK and Samaritan Hospital. In reality there is no choice because both entities are operated and run by UK Healthcare. Oversight for UK HealthCare’s activities is provided by the University of Kentucky Board of Trustees, with particular responsibility placed on members of the board’s University Health Care Committee. “UK Hospital” locally known as the University of Kentucky Chandler Medical Center is an agency of the state, as it operated under the direction and control of the state and is funded by the state treasury. See Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997). Over a decade ago, it was established that UK Hospital was entitled to sovereign immunity. See Id. Presumably Samaritan Hospital, also run by UK Healthcare should be considered a state entity and would likewise be entitled to the same protections.
The Commonwealth, through the arresting officer and its medical facilities, require a Defendant to pay Four-Hundred and Twenty Four Dollars ($424.00) at the time the independent blood test is to be performed. Approximately ten years ago the cost of an independent blood test in Lexington, Fayette County, was $150.00. In the past decade the cost of pursuing this statutory right has inexplicably risen 283%. Due to the staggering and unreasonable costs the Commonwealth requires of Defendants to pay for an independent blood test, the Commonwealth is effectively denying this statutory right to all but the wealthiest DUI suspects.
The facts of this arrest also raise the equal protection issue of Greene’s indigence. Greene is marginally employed and the $424.00 sum was not readily available to him. Paying this expense would have caused Greene a financial hardship. If the Commonwealth is going to allow an individual an option it cannot be denied solely due to one’s ability to pay. It can be easily observed that a well healed DUI suspect with the means to pay for an independent blood test at the time it is requested is conferred far more rights than an indigent person. Requiring payment for the blood test upfront denies equal protection to the Defendant and others similarly situated. The high cost demanded by the Commonwealth, runs afoul of principles articulated in by the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963). The country’s highest court ruled “…that any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id. It seems that both our state and federal courts abhor denying equal justice to those who cannot afford the legal protection enjoyed by others with reasonable means. Certainly, the Legislature did not intend to confer the statutory right of an independent blood test on only the wealthiest Kentuckians. For the above stated reasons the Defendant moves the Court to suppress the intoxilyzer results.

Noticed for: at the convenience of the Court.

Dated: June 26, 2013

Respectfully submitted,

John L. Tackett Attorney at Law PLLC
The Lexington Building
201 West Short Street, Suite 310
Lexington, Kentucky 40507
Telephone: 859-576-9272
Facsimile: 859-253-9824

BY: _______________________________
JOHN L. TACKETT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent via hand-delivery, on this the ____ day of June 2013 to the following:

Hon. Larry Roberts
Fayette County Attorney
110 West Vine Street Ste. 400
Lexington, KY 40507
Attn: Prosecutions/Second Division

Clerk, Fayette District Court
Fayette District Courthouse
150 N. Limestone
Lexington, KY 40507

_________________________________
John L. Tackett

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