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Commonwealth v. Minix9/23/1999
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.
Subsection (1) is the informed consent statute which states that an individual has deemed to consent to testing in the event that he or she is suspected of operating a vehicle under the influence of any substance which could impair driving ability. Subsection (7) provides that once the individual has consented to the officer's request for "one (1) or more tests," that individual is then entitled to an independent test of his choosing. In reading the two subsections together, it is plain that the individual must first consent to the test or tests requested by the officer. Undoubtedly, the language of subsection (1) requires an individual to comply with the officer's request not only in the field following the initial stop, but certainly his request to administer a post-arrest test utilizing the lntoxilizer 5000 breath machine. Only after an individual has complied, is he or she entitled to an independent test.
Moreover, we are of the opinion that the language of subsection (7) contemplates that the individual has submitted to a valid first test before the right to an independent test arises. The purpose of allowing an accused an independent test is to obtain another result to compare with or controvert the police officer's test. If there is not any determination of alcohol concentration from the administration of a successful post-arrest test, there is no statutory entitlement to an independent test. This is analogous to obtaining a second opinion of a medical diagnosis. There can be no second opinion unless and until a first opinion has been rendered. In other words, the accused has not been "tested" within the meaning of subsection (1) until there has been an actual determination of alcohol concentration or presence of a substance which impairs driving ability. We can find no indication that the Legislature intended to provide a driver with the right to receive independent testing in the absence of an official test which could be used for prosecution purposes.
In this case, Minix did submit to the two unsuccessful attempts to obtain results from the preliminary breath test. However, once he was arrested and transported to the detention center, Minix chose not to comply with the officer's request to a test using the lntoxilizer 5000 machine. At that point, Minix waived his right to his own test. Since the Commonwealth did not obtain any test result that determined alcohol concentration, an independent test was not warranted. As our predecessor Court stated in Newman v. Hacker, Ky., 530 S.W.2d 376, 377 (1975), in construing the then KRS 189.520(8), the statute "contemplates a test in addition to a test administered by the police officers and when the test requested . .is refused the section is not applicable."
We conclude that the district court, circuit court, and Court of Appeals erred in finding that Minix had been tested in accordance with the language of KRS 189A.103. Moreover, it was error for the district and circuit courts to suppress other evidence of Minix's intoxication. Accordingly, we reverse the Court of Appeals on the issue of entitlement of independent testing, however, we affirm the Court of Appeals decision that other evidence of intoxication was admissible. This matter is therefore remanded to the Johnson District Court for trial in accordance with this opinion.
Lambert, C.J., Graves, Johnstone, Keller, Stumbo, and Wintersheimer, J.J. concur. Cooper, J., concurs in result only.
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