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Farmer v. Commonwealth8/20/1999
TO BE PUBLISHED
OPINION AFFIRMING
The appellant, Gerald Scott Farmer (Farmer), appeals from the judgment of the Madison Circuit Court convicting him of reckless homicide and sentencing him to five years' imprisonment. Having reviewed the record on appeal, we find no error and affirm Farmer's conviction and sentence.
On August 9, 1997, Farmer was involved in an automobile accident while driving north on U.S. 25 in Madison County, Kentucky. His car collided with a southbound vehicle driven by Kenneth A. Payne. Payne was killed almost instantly in the accident, and Farmer sustained a broken hand and other minor injuries; there were no passengers in either car. Before he was taken to the hospital, a breathalyzer test was administered to Farmer by the responding officer, Kentucky State Police Trooper Merle Harrison. At the hospital, Trooper Chris Crockett interviewed Farmer and obtained his consent to collect urine and blood samples for testing.
Subsequently, on November 20, 1997, Farmer was indicted by the Madison County Grand Jury on the charges of Reckless Homicide (KRS 507.050) and Operating a Motor Vehicle While Under the Influence (KRS 189A.010). On February 25, 1998, prior to trial, Farmer filed motions to dismiss the DUI charge against him on the ground of double jeopardy and to suppress the results of the blood and urine tests. On March 2, 1998, prior to the commencement of the trial, the trial court conducted a hearing on the motions and denied both. However, the court held that the DUI charge should be treated as a lesser-included offense of reckless homicide and that the jury be instructed that Farmer could be convicted of only one of the charges - not both. The case proceeded to trial, and the jury found Farmer guilty of reckless homicide. On April 1, 1998, the court entered final judgment, sentencing Farmer to five years' imprisonment. This appeal followed.
Farmer argues on the appeal that the court erred in denying his motion to suppress the results of his blood and urine tests. He contends that his consent was not voluntary and that, therefore, the taking of blood and urine samples from him constituted an illegal search - a search that was not supported by probable cause. We disagree.
The taking of a blood sample from a criminal suspect for testing constitutes a search for real or physical evidence which implicates and activates the Fourth Amendment to the United States Constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). All searches conducted without a warrant are considered unreasonable unless they come within one of the exceptions to the rule requiring a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 565 (1971). Consent constitutes one of the exceptions to the warrant requirement. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant voluntarily consented to the search in question. Cook v. Commonwealth, Ky., 826 S.W.2d 329 (1992). The issue of whether the consent was indeed voluntary must be determined from the specific circumstances of a case. Schneckcloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This issue is a preliminary question to be decided by the trial court, and its findings are conclusive if they are supported by substantial evidence. Talbott v. Commonwealth, Ky., 968 S.W.2d 76 (1998).
Farmer maintains that his consent was not voluntary because Trooper Crockett's actions at the hospital led him to believe that he was under arrest and that he was required to submit to the search or lose
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