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Combs v. Commonwealth of Kentucky3/19/1998
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER. All concur.
AFFIRMING
This appeal is from a decision of the Court of Appeals which upheld the use of a blood alcohol test in a DUI case which did not involve death or physical injury. Combs entered a conditional plea of guilty pursuant to RCr 8.09 and was sentenced to two years probation.
The issue is whether police may use a search warrant in order to take a suspected drunk driver's blood after the driver has refused to submit to a blood alcohol test pursuant to the Implied Consent Statute, KRS 189A.103 and 189A.105(2)(b), in a case not involving death or physical injury.
Combs was arrested on August 17, 1994 at 11:36 p.m., for operating a motor vehicle under the influence of alcohol pursuant to KRS 189A.010 (DUI); driving with a suspended license and failure to wear a seat belt. It was the fourth arrest for Combs for DUI since March 1990. The officer testified that he saw Combs twice weave outside the yellow center line of the highway and that he made a turn that was too wide when he entered an adjoining highway. The officer then stopped Combs and testified that he smelled of alcohol and that there were two empty beer bottles and four full beer bottles in the passenger seat of the car. Combs admitted drinking earlier in the evening and he performed several of the so-called field sobriety tests, including the HGN, the one-legged stand and the walk and turn test, all of which indicated some degree of intoxication. Combs was taken to jail where he requested that further testing stop and refused to submit to a blood test to determine his blood alcohol. The officer prepared an affidavit in support of a search warrant which was issued by a district court Judge at 1:35 a.m. Pursuant to the search warrant, a test was administered at 2:05 a.m.
The Court of Appeals stated that the arguments presented by Combs were persuasive and that the natural corollary of KRS 189A.105(1)(b) was that a search warrant may not be issued in a DUI situation where neither death nor physical injury resulted. Thus, the panel said that they would have to agree with the defense "were we to rely on the plain language of the statute." The correct statute is 189A.105(2)(b).
However, the Court of Appeals determined that the police could obtain a search warrant because the panel believed that the statute amounted to an unconstitutional infringement on the powers of the judiciary to the extent that it attempted to limit when a search warrant may be issued. Thus they reasoned, it was a violation of the separation of powers provisions of the constitution. This Conclusion was sua sponte because neither the prosecution nor defense argued this constitutional question on appeal. Both the prosecution and defense did file motions for discretionary review which this Court granted.
The plain language of the statute in question is as follows:
No person shall be compelled to submit to any test or tests specified in KRS 189A.103 . . . KRS 189A.105(1).
Nothing in this subsection shall be construed to prohibit a Judge of a court of competent jurisdiction from issuing a search warrant . . . requiring a blood test . . . of a defendant charged with a violation of KRS 189A.010 . . . when a person is killed or suffers physical injury . . . as a result of the incident in which the defendant has been charged. KRS 189A.105(2)(b).
The clear and unambiguous language of KRS 189A.105(2)(b) creates an exception to the general rule found in Subsection (1) of that statute. The effect of this exception is to direct all executive branch employees, including police, not to seek a search warrant where in
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