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Commonwealth v. Armstrong10/14/2005
AFFIRMING
BEFORE: KNOPF AND TACKETT, JUDGES; AND ROSENBLUM, SENIOR JUDGE .
The Commonwealth appeals from an order of the Jefferson Circuit Court denying its petition to prohibit the Jefferson District Court from enforcing an order suppressing breathalyzer-test results in a DUI case styled Commonwealth of Kentucky v. Sheila Carter Broady.
The Commonwealth argues that the district court erred in finding that the police officer did not reasonably accommodate Broady's request for an independent blood test as required by KRS 189A.103(7). Based upon the facts of this particular case, the district court did not abuse its discretion and the circuit court did not err by denying the Commonwealth's petition. Hence, we affirm.
The underlying facts of this action are not in dispute. On May 31, 2003, at approximately 1:30 a.m., a vehicle driven by the real party in interest, Sheila Carter Broady was stopped by an officer of the Louisville Metro Police Department. After observing Broady and conducting a field sobriety test, the officer arrested Broady for driving under the influence (DUI) and failure to produce proof of automobile insurance. Officer Michael Bogan arrived at the arrest scene and then transported Broady to Metro Corrections where a breathalyzer test was performed. The test produced a blood-alcohol reading of .128.
Thereafter, Broady requested an independent blood test. Broady testified that, when asked where she wanted to go for the test, she indicated either Baptist East Hospital or Suburban Hospital, but she did not give a preference. Officer Bogan testified that Broady asked to be taken to Baptist East. However, the breathalyzer operator's test report reflected that Broady asked to be taken to "Norton's" hospital. Norton Healthcare owns a number of hospitals in Louisville Metro, including Norton Suburban Hospital.
Officer Bogan transported Broady to Baptist East Hospital. When they arrived at the hospital, Officer Bogan left Broady in the car, went inside, and asked a nurse about having an independent blood test performed. The nurse informed Officer Bogan that Baptist East did not perform such tests. He then returned to the car and relayed this information to Broady. But he did not offer to take Broady to another hospital, nor did Broady ask to be taken to another hospital. Rather, Officer Bogan drove Broady back to Metro Corrections.
Prior to trial in Jefferson District Court, Broady moved to suppress the results of the breathalyzer. Officer Bogan and Broady testified at the hearing. At the conclusion of the hearing, the district court, per Hon. Donald Armstrong, granted the motion to suppress. The court found that Officer Bogan had failed reasonably to accommodate Broady's request for an independent blood test. Thereupon, the Commonwealth filed a petition for writ of prohibition with the Jefferson Circuit Court. After reviewing the record and the arguments of counsel, the circuit court denied the petition. The Commonwealth appeals from that ruling.
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. There is no question that the district court was acting within its jurisdiction in granting the motion to suppress. However, the circuit court correctly noted that the Commonwealth cannot bring an
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