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Farmer v. Commonwealth7/15/2005
s, 233 Ga.App. 390, 504 S.E.2d 242 (1998), wherein the DUI suspect gave her consent to police at the scene of the accident, pursuant to that state's implied consent notice, to tests of her blood and urine for alcohol or drugs. Later, when the suspect was taken to a local hospital for the tests, she signed a form required by the hospital consenting to having a blood sample taken for alcohol testing. As in the present case, the hospital form did not mention testing for controlled substances. Pursuant to tests performed by the state's crime lab, the suspect's blood and urine tested positive for marijuana. Like the instant case, the suspect argued that the results of the drug tests on her blood and urine should be suppressed because the consent form she signed at the hospital only gave consent for blood-alcohol testing. The Court ruled that the lower court erred in granting the suppression motion, reasoning:
Whatever the form prepared by the hospital may have said or led Lewis to believe, it had no bearing on the State's right to test Lewis' blood and urine for alcohol or drugs pursuant to the consent she gave after receiving the required implied consent notice.... Nothing on the form prepared by the hospital, including the statement signed by the officer, could be construed as action taken by the State in violation of the statutory requirements of implied consent.
Id. at 244 (citations omitted).
A trial court's findings of fact pursuant to a suppression motion will not be overturned unless they are clearly erroneous i.e. not supported by substantial evidence. RCr 9.78; Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001); Diehl v. Commonwealth, 673 S.W.2d 711 (Ky. 1984). Although Farmer was not under arrest at the time of consent and thus Kentucky's implied consent provisions had no bearing in the present case, Farmer did give police his express general consent to tests of his blood and urine. In our view, the subsequent consent form submitted by the hospital did not operate to withdraw his earlier consent to police or limit his consent to just blood-alcohol testing. Accordingly, the trial court's finding that Farmer consented to the drug testing of his blood and urine was not clearly erroneous.
Farmer's remaining argument is that the trial court erred in not addressing Farmer's motion to exclude the urine test results based upon their unfairly prejudicial effect. Farmer argued at the suppression hearing that the results of his urine test, which revealed the presence of marijuana, were not sufficiently probative so as to outweigh the prejudicial impact of such evidence. Hence, under KRE 403, those test results should have been excluded. The trial court failed to address this argument in its opinion and order on the suppression motion. However, Farmer did not bring this failure to the attention of the trial court as required by CR 52.04. See RCr 13.04. Accordingly, the issue was waived.
For the reasons stated above, the judgment of the Pulaski Circuit Court is affirmed.
ALL CONCUR.
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