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Sutton v. Commonwealth10/21/2005
REVERSING AND REMANDING
BEFORE: GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE.
Barney Sutton (Sutton) brings this appeal from an order of the Bullitt Circuit Court, entered October 11, 2004, which granted the Commonwealth's writ of prohibition, directing the Bullitt District Court to conduct a suppression hearing on the admissibility of the Commonwealth's breathalyzer test in Commonwealth v. Barney Sutton (Bullitt District Court Number 03-T-06491). Based upon the facts of this case, the circuit court erred by granting the Commonwealth's petition. Hence, we reverse and remand.
This case arises from Sutton's arrest and charge of driving under the influence on September 18, 2003. As the case proceeded, on April 30, 2004, the parties entered into an agreed order stipulating to the following facts with regard to the blood test requested by Sutton:
1. The selection of Hardin Memorial Hospital to draw the blood of Defendant and perform an alcohol blood analysis was made solely by an agent of the Commonwealth, following the request by the Defendant for a blood test;
2. There is an inadequate chain of custody for admission of the test results of the blood drawn and tested at Hardin Memorial Hospital, due to a failure of the records of Hardin Memorial Hospital to identify said person and to the inability of all potential agents of Hardin Memorial Hospital who could have drawn the sample to recall under oath who drew the blood from the Defendant.
Several days later, based on the above stipulation that an agent of the Commonwealth solely selected the place to administer the blood test requested by Sutton, Sutton asked the district court to dismiss the charges arguing that the Commonwealth violated Kentucky Revised Statutes (KRS) 189A.103(7) which requires that the defendant be given his choice as to who administers tests independent of those administered at the direction of the police.
On June 17, 2004, the district court orally suppressed Sutton's blood test and the Commonwealth's breathalyzer test. Thereafter, on August 19, 2004, the district court followed its oral ruling with a written order. In its order, the court made the following findings relevant to the issue before this Court:
The Court believes that the first stipulation of fact by the parties is dispositive of the issue before the Court. The stipulation states that the selection of Hardin Memorial Hospital as a location for the independent blood test was made solely (emphasis added) by an agent of the Commonwealth. . . .
Among the changes made in the Driving Under the Influence statutory scheme in 2000 by the Kentucky General Assembly, was a provision set forth in KRS 189A.103(7) . . . .
It is apparent from the parties' stipulation that the test at Hardin Memorial Hospital did not meet the criteria for an independent test and that therefore there has been a violation of KRS 189A.103(7).
In arriving at this conclusion, the Court turns to the recent Kentucky case of Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 2003). In that case, the Court in finding a violation of the right to an independent test, stated, "we believe the plain meaning and unambiguous intent expressed by our legislature is that once an individual has submitted to the state's breath, blood or urine test to determine his or her alcohol concentration, that individual has a statutory right to have an independent test by a person of his or her own choosing within a reasonable time of the arrest at the individual's own expense." Long at p. 183.
The Long court reviewed the holdings of several states. . . . The Court has revi
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