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Commonwealth v. Morriss3/21/2002
ve debated the effect of Combs v. Commonwealth. In Combs, the defendant had been arrested for DUI and taken to jail where he refused to have blood drawn for alcohol content tests. A search warrant was issued and a sample was taken. On review, this Court explained that KRS 189A.105( 1) states that no person shall be compelled to submit to any tests but that KRS 189A.l05(2)(b) is an exception to this rule. The Court reasoned that since no death or physical injury occurred, the exception did not apply in the Combs case and that the evidence should have been suppressed.
In Commonwealth v. Lopez, the defendant was charged with DUI and consented to a blood test. There was no death or physical injury nor was there a search warrant. This Court clarified the broad holding in Combs, i.e., "it is the holding of this Court that the admission of the results of a blood test in a DUI case not involving death or physical injury is improper" and held that "Combs is limited to those situations where a search warrant was necessary to obtain blood evidence in order to prosecute a DUI case not involving injury or death." We explained that "the above quoted language [from Combs] does not control a situation where a defendant expressly consents to a blood alcohol test in compliance with KRS 189A.103."
In Combs and Lopez there was no death or physical injury. Where there is death or physical injury and the subject has been charged with a qualifying offense, if there is a refusal the statute applies and a search warrant may be obtained. However, where there is death or physical injury but no charge has yet been brought, 189A.l05(2)(b) does not apply and traditional search and seizure principles control.
That the Fourth Amendment applies is shown in Cook v. Commonwealth.
In Cook, the defendant was driving a vehicle which hit another car. One person was killed and several others seriously injured. The defendant was taken to the hospital where his blood was drawn for a blood alcohol content test. At the suppression hearing, he claimed that he did not give his consent to have his blood taken but this Court held that he had consented. The Court noted that the implied consent statute in effect at that time, KRS 186565(l), did not apply because the defendant was "not under arrest or in police custody."g We held Fourth Amendment principles to be controlling.
In the present case, Appellee refused to take a blood test and there was a death and physical injury. He was not yet charged when the test was sought. Such a fact situation is not controlled by the statute. This case must be decided on conventional search and seizure principles. It does not differ conceptually from other cases in which search and seizure is sought to obtain and preserve evidence. The case must be remanded to the Circuit Court for a determination of whether the search warrant was otherwise proper.
For the reasons set forth herein, the opinion of the Court of Appeals is reversed and this cause remanded to the trial court for further consistent proceedings.
Lambert, C.J., and Cooper, Graves, Johnstone, Keller, Stumbo, and Wintersheimer, JJ., concur.
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