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Commonwealth v. Morriss3/21/2002
AS AMENDED: MARCH 21, 2002
TO BE PUBLISHED
REVERSING
Appellee, Brett Morriss, was indicted on charges of murder, driving under the influence of intoxicants, first degree assault, fourth degree assault, first degree criminal mischief, and disregarding a traffic control device. Appellee moved to have the results of any laboratory tests conducted on his blood and urine suppressed. The Jefferson Circuit Court ordered suppression of the evidence. The Court of Appeals affirmed and this Court granted discretionary review.
The issue presented is whether the death or physical injury provision of KRS 189A.l05(2)(b) applies when blood and urine samples are gathered pursuant to a search warrant, despite the refusal of consent to the taking of samples, and when the subject has not been charged with an offense at the time the search warrant is obtained.
BACKGROUND
Appellee was the driver of a vehicle which ran through a red light at an intersection. The vehicle hit a car driven by Demetrice Marshall, who was slightly injured. Marshall's passenger was killed. Appellee's passenger suffered serious injuries due to the collision. Appellee was taken to Norton's Hospital in Louisville where a doctor at the hospital placed him on a 72-hour hold.
A search warrant was issued to collect blood and urine samples from Appellee. Samples were collected and an analysis conducted, revealing .15 grams per milliliter and .12 grams per milliliter as the alcohol content of Appellee's urine and blood, respectively. Appellee was arrested and later indicted for the offenses identified above.
1. SUPPRESSION OF THE EVIDENCE
Appellee moved the Jefferson Circuit Court to suppress the results of any lab work performed on the samples. The Circuit Court granted the motion after conducting a suppression hearing. The Court of Appeals affirmed and the Commonwealth moved for discretionary review in this Court. We granted review and vacated the opinion of the Court of Appeals for reconsideration in light of Commonwealth v. Lopez. Upon remand, the Court of Appeals again affirmed the Circuit Court's order, finding Lopez inapplicable. Again, we granted discretionary review.
The principal issue in this case is whether the evidence should have been suppressed as a violation of KRS 189A.105. This statute states in relevant part:
(1) A person's refusal to submit to tests under KRS 189A.103 shall result in revocation of his driving privilege as provided in this chapter.
(2) (b) Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A.010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500.080, as a result of the incident in which the defendant has been charged. (Emphasis added).
The tests administered to Appellee are set forth in KRS 189A. 103.
Appellee argues that KRS 189A.105 requires that a person first be charged with an offense before a search warrant may be used to compel him to submit to the collection of samples. He reasons that since he was not charged at the time the search warrant was issued, the results of the tests must be suppressed. The Commonwealth contends that KRS 189A.105 does not apply to this situation because Appellee was not charged with an offense. It argues that traditional search and seizure rules apply and that the search warrant was valid.
The parties ha
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