RENDERED: APRIL 29, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0380-DG

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

ON REVIEW FROM COURT OF APPEALS

NO. 2017-CA-1927

DAVIESS CIRCUIT COURT NO. 15-CR-00005 

JARED MCCARTHY APPELLEE 

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING

In Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), the United States 

Supreme Court altered the landscape in driving under the influence (DUI) 

investigations by announcing that the Fourth Amendment permits a 

warrantless breath test incident to an arrest for drunk driving, but not a

warrantless blood test. For warrantless blood tests, the search is unreasonable 

under the Fourth Amendment unless valid consent is given or exigent 

circumstances justify the search. This appeal addresses the ramifications of

Jared McCarthy’s exercise of his constitutional right to refuse to take a blood 

test when stopped for DUI and ultimately convicted of that offense pursuant to 

Kentucky Revised Statute (KRS) 189A.010.

We conclude the trial court properly held that under Birchfield

McCarthy’s refusal to submit to a blood test could not be used to enhance his 
2

criminal penalty for DUI and, under controlling Kentucky precedent, could not 

be used as evidence that he was guilty of DUI. The trial court erred, however, 

in allowing the Commonwealth to introduce the refusal evidence to explain to 

the jury the lack of scientific evidence as to McCarthy’s blood alcohol content 

(BAC). Upon review of the record, we cannot conclude that the erroneous 

admission of that evidence was harmless beyond a reasonable doubt and thus 

affirm the Court of Appeals’ decision reversing and remanding this case to the 

Daviess Circuit Court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On November 1, 2014 at 1:00 a.m., an Owensboro police officer stopped 

Jared McCarthy on suspicion of DUI. The officer administered a series of field 

sobriety tests and placed McCarthy under arrest.1 The officer transported 

McCarthy to the hospital where he requested McCarthy submit to a blood test 

and informed McCarthy of the repercussions under KRS 189A.105(2)(a)1 for 

refusing the test. Specifically, the officer warned McCarthy that (1) if he 

refused the test, the fact of the refusal may be used against him in court as 

evidence of violating KRS 189A.010, the DUI statute, and (2) if he refused the 

test and was subsequently convicted of DUI under KRS 189A.010, then he 

would be subject to a mandatory minimum jail sentence twice as long as the 

 

1 McCarthy refused a preliminary breath test during the traffic stop prior to his 

arrest. Pursuant to KRS 189A.100, a person’s refusal to take a preliminary breath 

test cannot be used against him in a court of law or in any administrative proceeding. 

McCarthy moved in limine to exclude any reference to this refusal and an agreed order 

was entered to that effect.
3

mandatory minimum jail sentence imposed if he were to submit to the test.2 

McCarthy refused the blood test.

Pretrial, McCarthy moved in limine to exclude any evidence of his refusal 

to take the warrantless blood test. Citing then-recently-decided Birchfield v. 

North Dakota as impacting KRS 189A.105(2)(a)1, he argued that a blood draw 

is a search of his person requiring a warrant and that he could not be deemed 

to have consented to the blood draw through statutory implied consent when 

facing a criminal penalty, namely additional jail time. McCarthy argued that 

his refusal to consent to a warrantless search,3 could not be used against him 

as an aggravator for penalty purposes or as evidence at trial of the DUI offense.

The Commonwealth responded that Birchfield does not apply to KRS 

189A.105 because, unlike the North Dakota and Minnesota implied-consent 

statutes analyzed in Birchfield, the Kentucky General Assembly did not create a 

 

2 McCarthy was indicted under KRS 189A.010(5)(d) for operating a motor 

vehicle while under the influence, fourth or subsequent offense within the last five 

years, aggravating circumstance. At the time of McCarthy’s indictment, KRS 

189A.010(5)(d) provided that “[f]or a fourth or subsequent offense within a five (5) year 

period, [the violator is] guilty of a Class D felony. If any of the aggravating 

circumstances listed in subsection (11) of this section are present, the mandatory 

minimum term of imprisonment shall be two hundred forty (240) days, which term 

shall not be suspended, probated, conditionally discharged, or subject to any other 

form of release”; KRS 189A.010(11)(e) provided that “[r]efusing to submit to any test or 

tests of one’s blood, breath, or urine requested by an officer having reasonable 

grounds to believe the person was operating or in physical control of a motor vehicle in 

violation of [KRS 189A.010(1)]” was an aggravating factor; and KRS 189A.010(8) stated 

that “[f]or a fourth or subsequent offense under this section, the minimum term of 

imprisonment shall be one hundred twenty (120) days, and this term shall not be 

suspended, probated, or subject to conditional discharge or other form of early release. 

For a second or subsequent offense, at least forty-eight (48) hours of the mandatory 

sentence shall be served consecutively.” See 2010 Ky. Acts ch. 149.

3 An exigent circumstance justifying the warrantless search was not discussed.
4

separate violation and criminal penalty for refusing the blood test, i.e., a 

freestanding offense which could be prosecuted regardless of whether the 

defendant was prosecuted for or found guilty of DUI. The Commonwealth 

noted that under KRS 189A.105, Kentucky’s mandatory minimum term of 

imprisonment cannot attach until a conviction for DUI occurs, requiring the 

Commonwealth first prove the DUI, and if the defendant is found guilty, then 

prove his refusal. The Commonwealth also argued that because Birchfield did 

not disturb the civil penalties and evidentiary consequences of a refusal, the 

fact of McCarthy’s refusal of the blood test could be used against him in court 

as evidence of violating KRS 189A.010, just as he was explicitly warned 

pursuant to KRS 189A.105. The Commonwealth further insisted that given 

common knowledge that scientific tests are often used as evidence in DUI 

cases, it should be allowed to explain to the jury why the Commonwealth did 

not have a scientific test as part of its proof against McCarthy.

After considering Birchfield, the trial court ruled in McCarthy’s favor in 

terms of the implication of guilt and the enhanced penalty associated with the 

refusal. The circuit court concluded McCarthy’s trial would proceed as a DUI 

prosecution without the aggravating circumstance. Specifically, the circuit 

court ruled that the Commonwealth (1) could not use McCarthy’s refusal to 

take the warrantless blood test as evidence implying his guilt during its casein-chief but could introduce the refusal to explain the absence of any scientific 

evidence to prove the DUI, and (2) could not use the refusal to enhance 

McCarthy’s penalty if he were found guilty of DUI. As to McCarthy, the circuit 
5

court ruled that McCarthy (1) could argue that the Commonwealth offered no

scientific evidence of his guilt, but (2) could not comment that the absence of

scientific evidence was due to the Commonwealth’s failure to secure a warrant 

for his blood. The trial court did not allow questions about the warrant 

because issuance of a warrant is a question of law. McCarthy’s first trial ended 

in a mistrial with a deadlocked jury. The trial court’s rulings remained in effect 

for McCarthy’s second trial. 

At trial, Officer Fleury testified that he stopped McCarthy after observing 

his vehicle leave a bar parking lot and swerve across the roadway’s centerline. 

McCarthy was driving and had three passengers. Officer Fleury testified that 

the car, as well as McCarthy himself upon his removal from the car, smelled of 

alcoholic beverages; that McCarthy slurred his speech a little bit; that 

McCarthy was a bit lethargic; and that McCarthy’s cumulative performance on 

the field sobriety tests indicated that he was impaired. The jury saw the video 

of Officer Fleury stopping McCarthy and McCarthy performing the field sobriety 

tests. A search of the vehicle yielded three open containers of beer and 

prescription bottles of clonazapam and hydrocodone, prescribed for McCarthy. 

Officer Fleury did not open the containers to count the pills. Officer Fleury 

testified that the prescription labels contained a warning that they should not 

be used in combination with alcohol.
6

Officer Fleury testified that after arresting McCarthy, he transported 

McCarthy to the hospital for a blood draw, but McCarthy refused the draw.4 

On cross-examination, Officer Fleury also testified that he had never requested 

a search warrant for blood in a DUI case and did not even know whether he 

could request a warrant.5 During deliberations, the jury asked to view the 

video again. The jury found McCarthy guilty of operating a motor vehicle while 

under the influence of alcohol and/or other substances, fourth offense within 

the last five years. The trial court followed the jury’s recommendation and 

sentenced McCarthy to two years in prison, noting that under the statute 

McCarthy “must serve 120 days of his sentence.”

McCarthy appealed to the Court of Appeals, arguing that the trial court 

erred (1) by allowing the Commonwealth to introduce evidence that McCarthy 

refused to submit to blood testing and then (2) by preventing him from 

countering that evidence by asking the police officer why he had not obtained a 

warrant for the blood test.6 In response, the Commonwealth expounded on its 

arguments before the trial court that Birchfield’s holding is inapplicable to 

 

4 Although the trial court ruled that the Commonwealth could use McCarthy’s 

refusal for the limited purpose of explaining the lack of scientific proof, an admonition 

was not requested.

5 The Commonwealth did not object to this testimony. The Commonwealth 

objected when defense counsel asked Officer Fleury if he knew he could have obtained 

a warrant, whether he would have in fact done so.

6 McCarthy also alleged the trial court erred by sua sponte giving the 

deliberating jury an Allen (term derived from Allen v. United States, 164 U.S. 492 

(1896)) charge. The Court of Appeals rejected that claim of error, and McCarthy does 

not pursue it before this Court.
7

Kentucky’s DUI statutes and that the Commonwealth is statutorily permitted 

to introduce evidence of McCarthy’s refusal.

The Court of Appeals, addressing whether Birchfield is applicable to KRS 

189A.105’s sentence enhancement upon a DUI conviction, concluded an 

otherwise apparently relevant conclusion in then-recently-decided 

Commonwealth v. Brown, 560 S.W.3d 873 (Ky. App. 2018), was dicta; the 

Brown court stated that although the doubling of a mandatory minimum jail 

sentence is a criminal sanction, unlike the statutes examined in Birchfield, it 

lacks the coercive force presented by an additional criminal charge for refusing. 

Rejecting this reasoning, the Court of Appeals in this case concluded that 

Birchfield applied to KRS 189A.105; that McCarthy’s refusal could not be used 

as evidence of guilt in the DUI prosecution; and considering Deno v. 

Commonwealth, 177 S.W.3d 753, 762 (Ky. 2005), and Coulthard v. 

Commonwealth, 230 S.W.3d 572, 582 (Ky. 2007), the Commonwealth 

improperly commented on McCarthy’s refusal, especially in light of the trial 

court’s ruling that McCarthy could not comment on the officer’s failure to seek 

a search warrant. We granted discretionary review and, after careful 

consideration, affirm the Court of Appeals.

ANALYSIS

McCarthy initially raised the issues before us by filing a motion in limine

to exclude evidence of his refusal and the trial court ultimately entered an 

“Order Limiting Introduction of Refusal to Take Warrantless Blood Test.” 

Neither McCarthy nor the court treated the matter as a suppression motion. 
8

On appeal, however, McCarthy argued that evidence of his refusal should be 

“suppressed” and the Court of Appeals then analyzed the issues through the 

lens of a suppression motion. Although this is not a typical scenario where a 

government search has yielded evidence such as drugs, weapons or, most 

pertinently, a BAC result which the defendant asks the court to suppress, the 

officer’s request did result in McCarthy’s refusal and that refusal was evidence 

that the Commonwealth intended to use against him. Given that fact and that 

the taking of a blood sample in these circumstances is a search implicating 

Fourth Amendment rights, Schmerber v. California, 384 U.S. 757, 767-68 

(1966), we conclude a defendant’s refusal to allow such a search and his 

subsequent efforts to preclude the government from using that refusal as 

evidence against him may properly be addressed as a suppression motion. 

Generally, when reviewing the trial court’s decision on a suppression 

motion it is a two-part process and “we first review the trial court’s findings of 

fact under the clearly erroneous standard.” Davis v. Commonwealth, 484 

S.W.3d 288, 290 (Ky. 2016). Here, the material fact upon which McCarthy’s 

motion was based, McCarthy’s refusal of the blood test, is not disputed. 

McCarthy’s motion required the trial court, as a matter of law, to consider how 

Birchfield applied to McCarthy’s refusal within KRS Chapter 189A, Kentucky’s 

Driving Under the Influence statutory framework, particularly KRS 

189A.105(2). Therefore, we review de novo the circuit court’s conclusions of 

law. Id. A trial court’s allegedly erroneous Fourth Amendment evidentiary 

rulings are reviewed under the “harmless beyond a reasonable doubt” 
9

standard. Chapman v. California, 386 U.S. 18 (1967); Ward v. Commonwealth, 

587 S.W.3d 312, 331 (Ky. 2019).

The trial court’s rulings were: (1) the Commonwealth could not use 

McCarthy’s refusal to submit to a warrantless blood test to enhance his penalty 

if he was convicted of DUI; (2) the Commonwealth could not use McCarthy’s 

refusal as evidence to imply his guilt; (3) the Commonwealth could introduce 

the refusal to explain why the Commonwealth lacked scientific evidence to 

prove the DUI; (4) McCarthy could comment on the fact the Commonwealth 

presented no scientific evidence of his guilt; and (5) McCarthy could not 

comment that the absence of any scientific evidence of his guilt was due to the 

Commonwealth’s failure to secure a warrant for his blood. The trial court’s 

unexpressed conclusions of law encompassed in those rulings were: (1) 

because McCarthy has the constitutional right to refuse to submit to an illegal 

warrantless blood test, his lawful refusal to consent could not (a) serve as the 

basis of a criminal penalty or (b) be used as evidence of his guilt as prescribed 

by KRS 189A.105; (2) evidence of McCarthy’s refusal was otherwise relevant 

because the Commonwealth, faced with proving McCarthy was driving under 

the influence, was entitled to let the jury know it did not have BAC evidence 

because McCarthy refused the blood test; and (3) even if the jury heard that the 

Commonwealth lacked objective scientific evidence of McCarthy’s guilt because 

of his refusal to submit to a blood test, evidence as to whether the officer could 

have secured a warrant for the blood test was not admissible. 
10

We begin with a review of pertinent KRS Chapter 189A statutes and the 

Birchfield decision.

I. Kentucky’s Implied-Consent Law

As the United States Supreme Court describes, the states’ approach to 

combating drunk driving has evolved over time. Birchfield, 136 S. Ct. at 2166-

70. Early DUI laws did not contain a BAC measure to define intoxication and 

case prosecution was largely dependent on a witness’s observations that the 

defendant’s behavior showed signs of intoxication. Id. at 2167. With scientific 

advancement in the understanding of BAC levels and their relationship to 

impaired driving, even in the absence of behavioral indications of impairment, 

states have defined the minimum BAC level at which a person is illegal to drive. 

Id. DUI laws have also evolved to criminalize use of other substances which 

may impair driving. See, e.g., KRS 189A.010(1). In Kentucky, 

[a] person shall not operate or be in physical control of a motor 

vehicle anywhere in this state: 

(a) Having an alcohol concentration of 0.08 or more as measured 

by a scientifically reliable test or tests of a sample of the 

person’s breath or blood taken within two (2) hours of cessation 

of operation or physical control of a motor vehicle;

(b) While under the influence of alcohol;

(c) While under the influence of any other substance or 

combination of substances which impairs one’s driving ability;

(d) While the presence of a controlled substance listed in 

subsection (12) of this section [which includes hydrocodone] is 

detected in the blood, as measured by a scientifically reliable 

test, or tests, taken within two (2) hours of cessation of 

operation or physical control of a motor vehicle;
11

(e) While under the combined influence of alcohol and any other 

substance which impairs one’s driving ability; or

(f) Having an alcohol concentration of 0.02 or more as measured 

by a scientifically reliable test or tests of a sample of the 

person’s breath or blood taken within two (2) hours of cessation 

of operation or physical control of a motor vehicle, if the person 

is under the age of twenty-one (21).

KRS 189A.010(1). These prohibitions were in effect at the time of McCarthy’s 

arrest.7 See 2016 Ky. Acts ch. 85. For prosecutions under KRS 189A.010(1)(b) 

 

7 At the time of McCarthy’s arrest KRS 189A.010(5), prescribing a five-year look 

back, set out that one violating KRS 189A.010(1)(a), (b), (c), (d), or (e) shall:

(a) For the first offense within a five (5) year period, be fined not less than 

two hundred dollars ($200) nor more than five hundred dollars ($500), or 

be imprisoned in the county jail for not less than forty-eight (48) hours 

nor more than thirty (30) days, or both. Following sentencing, the 

defendant may apply to the judge for permission to enter a community 

labor program for not less than forty-eight (48) hours nor more than 

thirty (30) days in lieu of fine or imprisonment, or both. If any of the 

aggravating circumstances listed in subsection (11) of this section are 

present while the person was operating or in physical control of a motor 

vehicle, the mandatory minimum term of imprisonment shall be four (4) 

days, which term shall not be suspended, probated, conditionally 

discharged, or subject to any other form of early release;

(b) For the second offense within a five (5) year period, be fined not less 

than three hundred fifty dollars ($350) nor more than five hundred 

dollars ($500) and shall be imprisoned in the county jail for not less than 

seven (7) days nor more than six (6) months and, in addition to fine and 

imprisonment, may be sentenced to community labor for not less than 

ten (10) days nor more than six (6) months. If any of the aggravating 

circumstances listed in subsection (11) of this section are present, the 

mandatory minimum term of imprisonment shall be fourteen (14) days, 

which term shall not be suspended, probated, conditionally discharged, 

or subject to any other form of early release;

(c) For a third offense within a five (5) year period, be fined not less than 

five hundred dollars ($500) nor more than one thousand dollars ($1,000) 

and shall be imprisoned in the county jail for not less than thirty (30) 

days nor more than twelve (12) months and may, in addition to fine and 

imprisonment, be sentenced to community labor for not less than ten 

(10) days nor more than twelve (12) months. If any of the aggravating 

circumstances listed in subsection (11) of this section are present, the 
12

or (e), it is presumed that a motorist with an alcohol concentration of less than 

0.04 is not under the influence of alcohol and there is no presumption either 

way for a motorist with an alcohol level of 0.04 or greater or less than 0.08, but 

the alcohol concentration may be considered with other evidence in 

determining guilt. KRS 189A.010(3)(a)-(b).

With DUI charges and case prosecution being dependent upon or 

otherwise aided by BAC levels (and detection of other substances which impair 

driving ability), states have created consequences for a motorist refusing to 

take the scientific tests used to determine BAC, typically a breath test or a 

blood test.8 Birchfield, 136 S. Ct. at 2166. These consequences are codified in 

what is generally referred to as implied-consent laws. Id. With driving being a 

privilege regulated by the state, Kentucky, like other states, imposes conditions 

on those who choose to operate a vehicle on its roadways, one being consenting 

to testing for alcohol or other substances if an officer has reasonable grounds 

to believe the motorist is violating Kentucky’s DUI statute, KRS 189A.010(1). 

 

mandatory minimum term of imprisonment shall be sixty (60) days, 

which term shall not be suspended, probated, conditionally discharged, 

or subject to any other form of early release;

(d) For a fourth or subsequent offense within a five (5) year period, be 

guilty of a Class D felony. If any of the aggravating circumstances listed 

in subsection (11) of this section are present, the mandatory minimum 

term of imprisonment shall be two hundred forty (240) days, which term 

shall not be suspended, probated, conditionally discharged, or subject to 

any other form of release.

8 Kentucky’s statute also includes a urine test. See KRS 189A.103(1).
13

See id.; Commonwealth v. Duncan, 483 S.W.3d 353, 355–56 (Ky. 2015); KRS 

189A.103(1).

Under KRS 189A.103(1), a motorist impliedly consents to testing for 

alcohol or other substances. KRS 189A.103(1) states: 

The following provisions shall apply to any person who operates or 

is in physical control of a motor vehicle or a vehicle that is not a 

motor vehicle in this Commonwealth:

(1) He or she has given his or her consent to one (1) or more 

tests of his or her blood, breath, and urine, or combination 

thereof, for the purpose of determining alcohol concentration 

or presence of a substance which may impair one’s driving 

ability, if an officer has reasonable grounds to believe that a 

violation of KRS 189A.010(1) or 189.520(1) [(pertaining to 

operating a vehicle which is not a motor vehicle)] has occurred.[9]

(Emphasis added.)

If the motorist affirmatively refuses consent–declines to cooperate with a 

test–he faces certain statutorily-defined consequences. At the time of 

McCarthy’s arrest, KRS 189A.105(1) and (2)(a)1 provided:

(1) A person’s refusal to submit to tests under KRS 189A.103 shall 

result in revocation of his driving privilege as provided in this 

chapter.

(2)(a) At the time a breath, blood, or urine test is requested, the 

person shall be informed:

1. That, if the person refuses to submit to such tests, the fact 

of this refusal may be used against him in court as evidence 

of violating KRS 189A.010 and will result in revocation of his 

motorist’s license, and if the person refuses to submit to the 

tests and is subsequently convicted of violating KRS 

189A.010(1) then he will be subject to a mandatory 

 

9 Other than the addition of the pronouns referring to female defendants, KRS 

189A.103’s content has not changed since its amendment in 2000. See 2007 Ky. Acts

ch. 85.
14

minimum jail sentence which is twice as long as the 

mandatory minimum jail sentence imposed if he submits to 

the tests, and that if the person refuses to submit to the tests 

he will be unable to obtain a hardship license.10

(Emphasis added.) The Supreme Court’s 2016 Birchfield decision changed the 

landscape for implied-consent laws such as ours by addressing the Fourth 

Amendment implications of both breath and blood tests relied upon by states 

in DUI prosecutions.

II. Birchfield’s Fourth Amendment Analysis

The Fourth Amendment provides in relevant part that “[t]he right of the 

people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated, and no Warrants 

shall issue, but upon probable cause.” “The purpose of the Fourth Amendment 

is to prevent unreasonable governmental intrusions into the privacy of one’s 

 

10 KRS 189A.105(2)(a) currently states:

At the time a breath, blood, or urine test is requested, the person shall 

be informed:

1. That, if the person refuses to submit to such tests:

a. The fact of this refusal may be used against him or her in court as 

evidence of violating KRS 189A.010 and will result in suspension 

of his or her driver’s license by the court at the time of 

arraignment; and

b. Is subsequently convicted of violating KRS 189A.010(1):

i. For a second or third time within a ten (10) year period, he or 

she will be subject to a mandatory minimum jail sentence which is 

twice as long as the mandatory minimum jail sentence imposed if 

he or she submits to the tests; and

ii. His or her license will be suspended by the Transportation 

Cabinet.
15

person, house, papers, or effects.” United States v. Calandra, 414 U.S. 338, 

354 (1974). “In the usual context of a criminal trial, the defendant is entitled 

to the suppression of, not only the evidence obtained through an unlawful 

search and seizure, but also any derivative use of that evidence.” Id. As noted 

above, drawing blood to test for BAC constitutes a search under the Fourth 

Amendment. Schmerber, 384 U.S. at 767–68. The pertinent question then 

under a Fourth Amendment analysis is whether such a search is reasonable. 

Birchfield, 136 S. Ct. at 2173. The Fourth Amendment generally requires 

police to obtain a valid search warrant in order for a search to be reasonable, 

id. (citing Kentucky v. King, 563 U.S. 452, 459 (2011)), but consent is a 

recognized exception which renders a warrantless search reasonable. 

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

Birchfield, consolidating two cases from North Dakota and a case from 

Minnesota, addressed whether the Fourth Amendment is violated when 

implied-consent laws go beyond the typical penalties for noncompliance (e.g.,

license suspension) and attach criminal consequences to a motorist’s refusal of 

a breath or blood test after being lawfully arrested as a DUI suspect. While 

common consequences of refusing a test are suspension or revocation of the 

motorist’s license and use of the refusal of a test as evidence of likely 

intoxication in a DUI prosecution, a defendant facing a greater penalty for 

driving with an elevated BAC or for repeat violations has incentive to refuse 

testing. 136 S. Ct. at 2166, 2169. Some states, like North Dakota and
16

Minnesota, have made it a separate crime to refuse a breath or blood test. Id. 

at 2169-70.11 

In each of the three Birchfield cases, the defendant was arrested for 

drunk driving and warned of the consequences of refusing the BAC test. Id. at 

2170-72. However, each defendant responded differently to the warning. 

Birchfield, after being informed blood test refusal would lead to criminal 

punishment, refused to let his blood be drawn, was charged with a 

misdemeanor violation of North Dakota’s refusal statute, entered a conditional 

guilty plea, and argued on appeal that the Fourth Amendment prohibited 

criminalizing his refusal to submit to the test. Id. at 2170-71. Beylund, upon 

being informed that test refusal is a crime, agreed to have his blood drawn and 

with a BAC level three times North Dakota’s legal limit, had his license 

suspended for two years after an administrative hearing; he argued on appeal 

that his consent to the blood test was coerced by the officer’s warning. Id. at 

2172. Bernard, having been informed that refusal to submit to a BAC test is a 

crime, refused to take a breath test, was charged with test refusal in the first 

degree, and had his charges dismissed by the Minnesota District Court on the 

basis that the warrantless breath test was not permitted under the Fourth 

 

11 In North Dakota, in addition to mandatory addiction treatment, refusing to 

take blood, breath or urine tests exposed the defendant to “sentences rang[ing] from a 

mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and 

imprisonment of at least one year and one day (for serial offenders).” Id. at 2170. The 

Birchfield Court also noted that “test refusal in Minnesota [could] result in criminal 

penalties ranging from no more than 90 days’ imprisonment and up to a $1,000 fine 

for a misdemeanor violation to seven years’ imprisonment and a $14,000 fine for 

repeat offenders.” Id. at 2171.
17

Amendment. Id. at 2171. After the North Dakota and Minnesota Supreme 

Courts rejected Fourth Amendment arguments in the defendants’ respective 

cases, the United States Supreme Court “granted certiorari in all three cases 

and consolidated them . . . in order to decide whether motorists lawfully 

arrested for drunk driving may be convicted of a crime or otherwise penalized 

for refusing to take a warrantless test measuring the alcohol in their 

bloodstream,” recognizing that the initial question was whether a motorist may 

be compelled to take a blood test or a breath test in the absence of a warrant. 

Id. at 2172. If a warrantless test is permissible, then a defendant’s refusal to 

take the required test may be criminalized. Id. at 2173.

Upon considering the factual differences between the three cases, the 

Supreme Court stated: 

Despite these differences, success for all three petitioners 

depends on the proposition that the criminal law ordinarily may 

not compel a motorist to submit to the taking of a blood sample or 

to a breath test unless a warrant authorizing such testing is issued 

by a magistrate. If, on the other hand, such warrantless searches 

comport with the Fourth Amendment, it follows that a State may 

criminalize the refusal to comply with a demand to submit to the

required testing, just as a State may make it a crime for a person 

to obstruct the execution of a valid search warrant.

Id. at 2172 (citations omitted).

The Court began its analysis “by considering whether the [breath and 

blood] searches demanded in these cases were consistent with the Fourth 

Amendment,” and particularly the states’ contention that the searches were 

reasonable, following each defendant’s arrest. Id. at 2173-85. Addressing for 

the first time whether the search-incident-to-arrest warrant exception applied 
18

to a DUI defendant’s breath or blood, the Court performed the Fourth 

Amendment reasonableness analysis and examined the degree to which the 

breath and blood tests intrude upon an individual’s privacy and the degree to 

which the tests are needed to promote legitimate governmental interests. Id. at 

2174-83.

The Court concluded categorically: “Because breath tests are 

significantly less intrusive than blood tests and in most cases amply serve law 

enforcement interests, . . . a breath test, but not a blood test, may be 

administered as a search incident to a lawful arrest for drunk driving.” Id. at 

2185. As to blood tests, the Court considered the necessity of piercing the skin 

to extract a vital bodily fluid versus the ease of administering a breath test, the 

increased expectation of privacy in blood as compared to breath, and the 

information which may be obtained from a blood sample beyond a mere BAC 

reading. Id. at 2178. The Court concluded that unlike breath tests, blood tests 

do not qualify for categorical exception from the warrant requirement under the 

search-incident-to-arrest doctrine as “[b]lood tests are significantly more 

intrusive, and their reasonableness must be judged in light of the availability of 

the less invasive alternative of a breath test.” Id. at 2184. Exigent 

circumstances may justify a warrantless blood test in a given case but 

otherwise the police must seek a warrant.12 Id.

 

12 The Supreme Court confronted an exigent circumstances case soon after 

Birchfield. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the Court addressed the 

constitutionality of a Wisconsin statute which authorized a warrantless blood draw 

from an unconscious DUI suspect incapable of providing a breath test. The Supreme 

Court granted review to decide “[w]hether a statute authorizing a blood draw from an
19

The Birchfield Court next considered the states’ alternative argument 

that a search warrant for a blood test was unnecessary because consent was 

implied under their respective implied-consent statutes. 

Our prior opinions have referred approvingly to the general concept 

of implied-consent laws that impose civil penalties and evidentiary 

consequences on motorists who refuse to comply. See, e.g.,

[Missouri v.] McNeely, [569 U.S. 141, 160-61 (2013)] (plurality 

opinion); [South Dakota v.] Neville, [459 U.S. 553, 560 (1983)]. 

Petitioners do not question the constitutionality of those laws, and 

nothing we say here should be read to cast doubt on them.

It is another matter, however, for a State not only to insist 

upon an intrusive blood test, but also to impose criminal penalties 

on the refusal to submit to such a test. There must be a limit to 

the consequences to which motorists may be deemed to have 

consented by virtue of a decision to drive on public roads. 

. . . [Applying the Fourth Amendment “reasonableness” 

standard,] we conclude that motorists cannot be deemed to have 

consented to submit to a blood test on pain of committing a 

criminal offense.

Id. at 2185-86.

Having outlined the intersection of implied-consent laws with the Fourth 

Amendment, the Supreme Court addressed the consequences for the three 

individual defendants. Given the legality of a warrantless breath test, Bernard 

“had no right to refuse,” and was properly prosecuted for his refusal to provide 

a breath test. Id. at 2186. By contrast, Birchfield had the right to refuse a 

warrantless blood test and his conviction for asserting that constitutional right

had to be reversed. Id. As for the third defendant, Beylund, who submitted to 

 

unconscious motorist provides an exception to the Fourth Amendment warrant 

requirement.” Id. at 2532. The Supreme Court found that the statute in question did 

not violate the Fourth Amendment provision against unreasonable searches because it 

fit into the exigent circumstance exception. Id. at 2539.
20

the blood test and was convicted, his case was remanded for an assessment of 

the voluntariness of his consent under the totality of the circumstances. Id. 

With this guidance, we turn to the issues in McCarthy’s case.

III. The Trial Court Properly Held That the Commonwealth 

Could Not Penalize McCarthy’s Refusal to Submit to a Blood 

Test as Provided in KRS 189A.105

The first issue in this case is whether the trial court properly concluded 

that McCarthy could not be subject to an enhanced criminal penalty for refusal 

to submit to a blood test. As quoted above, KRS 189A.105(2)(a) provides that a 

person who refuses a test and is subsequently convicted of DUI is subject “to a 

mandatory minimum jail sentence which is twice as long as the mandatory 

minimum jail sentence imposed if he submits to the tests.” Birchfield holds 

that because warrantless blood tests are invalid under the Fourth Amendment 

absent a valid exception to the warrant requirement such as exigent 

circumstances a defendant cannot be criminally sanctioned for refusing to 

consent.

The Commonwealth concedes the KRS 189A.105 sanction is a criminal 

penalty but maintains as it did before the trial court and Court of Appeals, that 

Birchfield’s holding is narrowly tailored to address only those state laws which 

attach separate criminal sanctions to refusals. Although the Commonwealth 

views Birchfield to be limited to statutes that make refusal a crime independent 

of any DUI charge, the Supreme Court did not make that distinction. 

Admittedly, Birchfield states at one point that “motorists cannot be deemed to 

have consented to submit to a blood test on pain of committing a criminal 
21

offense,” 135 S. Ct. 2186, but the Court states a broader objective in granting 

certiorari: “We granted certiorari in all three cases and consolidated them . . . 

in order to decide whether motorists lawfully arrested for drunk driving may be 

convicted of a crime or otherwise penalized for refusing to take a warrantless 

test measuring the alcohol in their bloodstream.” 136 S. Ct. at 2172 (emphasis 

added). Later in specifically addressing implied-consent laws, the Court 

criticizes such laws as incapable of providing valid consent when the State 

“impose[s] criminal penalties” on the refusal to take “an intrusive blood test.” 

Id. at 2185 (emphasis added). Simply put, Birchfield’s guidance is not limited 

to statutes which create separate criminal charges for refusal alone. The 

mandatory additional jail time imposed in KRS 189A.105 following conviction 

for DUI is an unauthorized criminal penalty and was properly considered as 

such by the trial court.

The Commonwealth also cites the Court of Appeals’ analysis in Brown, 

560 S.W.3d at 873, to persuade this Court that Birchfield should not apply to 

Kentucky’s implied-consent statutory scheme because our laws are not as 

coercive as those in states which criminalize refusal to consent to a test 

regardless of whether the defendant is ultimately convicted of DUI. As noted 

earlier, Brown concluded that mandating that an accused undergo an intrusive 

blood test or else accrue a criminal charge was coercive while simply increasing 

the mandatory minimum jail sentence upon any eventual conviction of DUI 

was not. The Commonwealth maintains it is evident that this added penalty 

upon a DUI conviction would not coerce consent. 
22

In this vein, the Commonwealth, citing KRS 189A.010(5)(a), points out 

that a refusal carries no minimum sentence on first-offense DUI, and under 

KRS 189A.010(5)(b), (c), and (d), respectively, refusal is just an aggravating 

circumstance on second, third, or fourth (or greater) DUI offenses.13 Under 

KRS 189A.105(2)(a)1, only if a person is convicted of the DUI offense after they 

refuse the test will they be subject to the mandatory minimum sentence. The 

Commonwealth further notes that a person who complies with the blood or 

breath test is not automatically entitled to the minimum sentence; DUI 

penalties provide a range of fines and a range of possible jail time; and the 

mandatory doubling of the minimum sentence due to refusal, not adding jail 

time on top of the maximum possible sentence, remains within the penalties 

authorized for the DUI. Finally, the Commonwealth emphasizes that viewing 

the penalty for refusal in KRS 189A.105 as subjecting a person to increased 

penalties assumes that the person is entitled to the minimum sentence if they 

consent to the test, when in fact a jury could impose the maximum sentence 

regardless of whether the defendant takes the test or not.

Accepting all of these facts as true does not change our conclusion that 

KRS 189A.105 imposes an unauthorized penalty on a motorist’s refusal to 

submit to a warrantless blood test. That the penalty does not apply until after 

the defendant is convicted of DUI does not lessen its punitive nature nor does 

the fact that the mandatory doubled minimum sentence is within the range of 

 

13 See n.7 for contents of KRS 189A.010(5) at the time of McCarthy’s arrest.
23

potential penalties even for a person who does consent to a blood test. Here, 

McCarthy’s penalty for refusal if convicted of violating KRS 189A.010(5)(d) 

would have doubled his mandatory minimum jail sentence from 120 to 240

days in jail. See KRS 189A.010(5)(d); KRS 189A.010(8).14 While a defendant 

may or may not have an idea of the minimum sentence they are facing, a 

reasonable person can at least recognize from the warning that by making the 

choice to refuse the test, they are subject to a higher minimum penalty. 

Although the defendant obviously could face a sentence higher than the 

mandatory minimum for the DUI offense if convicted, it is absolutely clear that 

the sentence will be higher than the mandatory minimum due to the refusal. 

Or said another way, upon a DUI conviction, because of the refusal, the 

defendant is subject to a criminal penalty that would not apply otherwise, and 

that result is not allowed under Birchfield. 

In closing we acknowledge that some courts have read Birchfield very 

narrowly and have concluded that it does not prohibit statutes such as ours 

that make refusal to consent to a blood test grounds for enhanced penalties 

upon conviction for DUI. See, e.g., Maine v. LeMeunier-Fitzgerald, 188 A.3d 

183 (Me. 2018); Vermont v. Rajda, 196 A.3d 1108 (Vt. 2018). Other states 

recognize, as we do, that the Supreme Court spoke in terms of “criminal 

penalties” in Birchfield, and a criminal penalty imposed after conviction for DUI 

is no less a penalty than one imposed by a freestanding criminal statute. See, 

 

14 See n.2 for contents of KRS 189A.010(5)(d) and KRS 189A.010(8) at the time 

of McCarthy’s indictment.
24

e.g., Pennsylvania v. Monarch, 200 A.3d 51 (Pa. 2019); Wisconsin v. Dalton, 914 

N.W.2d 120 (Wis. 2018); New Mexico v. Vargas, 404 P.3d 416 (N.M. 2017). The 

trial court did not err in concluding that McCarthy could not be subjected to an 

enhanced penalty due to his refusal to submit to a warrantless Fourth 

Amendment search in the form of a blood test.

IV. The Trial Court Properly Held That McCarthy’s Refusal to 

Consent Could Not Be Used Against Him Pursuant to KRS 189A.105 

as Evidence of His Guilt of Driving Under the Influence

Next we turn to the trial court’s ruling that the Commonwealth could not 

use McCarthy’s refusal to consent to the blood test against him at trial even 

though KRS 189A.105(2) specifically provides that “the fact of [a] refusal may 

be used against him in court as evidence of violating KRS 189A.010 [the DUI 

statute].” In an excerpt from Birchfield quoted above, the Supreme Court 

observed that it had previously approved state laws attaching evidentiary 

consequences to a motorist’s refusal to submit to a test, citing South Dakota v.

Neville, 459 U.S. 553 (1983).

In Neville, the motorist refused to submit to a blood alcohol test after 

being warned that his refusal could result in the loss of his license. Id. at 555. 

Apparently through oversight, the motorist was not informed that his refusal 

could also be used as evidence against him at trial. Id. at 565. Addressing the 

argument that admitting the evidence of refusal offended Neville’s Fifth 

Amendment right against self-incrimination, the Supreme Court held “that a 

refusal to take a blood-alcohol test, after a police officer has lawfully requested 

it [and offered a valid choice of either submitting to the test or refuse and 
25

endure the licensure and evidentiary consequences], is not an act coerced by 

the officer, and thus is not protected by the privilege against selfincrimination.” Id. at 564. The Supreme Court further held that although the 

motorist was not warned that the test results could be used against him, the 

other warning received put the motorist on notice that other adverse 

consequences may result from refusing the test and thus use of the evidence of 

refusal after the warning comported with the fundamental fairness required by 

Due Process. Id. at 566. 

Contrary to the Commonwealth’s position, Neville does not answer the 

issue before us. There the Court referred to “simple blood-alcohol test[s]” as 

“safe, painless and commonplace,” id. at 563, a premise certainly undermined 

as to blood tests after Birchfield, which found the intrusive tests unreasonable 

and held a warrant is required absent exigent circumstances, a recognized 

exception to the warrant requirement. Moreover, Neville did not involve a 

refusal under threat of criminal penalties. In any event and more importantly, 

Neville was focused solely on the Fifth Amendment15 and Birchfield now 

outlines the Fourth Amendment ramifications of BAC tests. One leading 

commentator has noted this distinction is significant:

While it has been established as a Fifth Amendment matter

that a defendant being prosecuted for driving under the influence 

may not object to the admission in evidence against him his 

refusal to submit to a sobriety test at the time of arrest, what of the 

claim that such evidence is inadmissible as a Fourth Amendment 

 

15 Similarly, Hager v. Commonwealth, 702 S.W.2d 431 (Ky. 1986), cited in the 

concurring in part, dissenting in part opinion, is also solely focused on the Fifth 

Amendment.
26

matter? The Court in Birchfield noted in passing (just as it did 

earlier in McNeely) that “evidence of the motorist’s refusal is 

admitted as evidence of likely intoxication in a drunk-driving 

prosecution,” and later cautioned that “nothing we say here should 

be read to cast doubt” on such “evidentiary consequences on 

motorists who refuse to comply,” which has been relied upon by 

those post-Birchfield lower court decisions that have upheld 

admission of such refusal evidence in those circumstances. But 

that assertion is misleading at best, for Birchfield’s emphasis on 

the distinction between when a defendant’s refusal to submit is 

constitutionally significant (i.e., for a blood test absent exigent 

circumstances) and when it is not (i.e., for all breath tests and for 

other blood tests) is, by well-established pre-existing authority, 

also relevant to the question of whether refusal may be admitted 

into evidence to show defendant’s guilt. What the cases indicate is 

that when defendant’s refusal was within the context of a 

recognized search-warrant-required category, then the Fourth 

Amendment prohibits admission of that refusal into evidence. . . . 

But on the other hand, when it is first determined that no warrant 

was required in any event (e.g., taking a breath sample), comment 

on the refusal is permissible.

4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §

8.2(l) (6th ed., Thomson Reuters 2020) (footnotes and citations omitted). 

As the Court of Appeals aptly noted in this case, Kentucky courts have 

already recognized that where a search warrant was required to conduct a 

search, a defendant’s refusal to consent to that search cannot be used against 

him as evidence of guilt. In Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 

2005), this Court held that a defendant charged with first-degree rape could 

not have his refusal to consent to a warrantless search of his bodily fluids used 

against him at trial. Citing cases from the United States Court of Appeals for 

the Ninth Circuit, including three cases noted in the LaFave treatise, we held 

that because the defendant was constitutionally entitled to withhold consent 

his exercise of that right “was privileged conduct that cannot be considered as 
27

evidence of criminality.” Id. at 761. The trial court’s admission of the evidence 

was deemed “a violation of [Deno’s] rights under the Fourth Amendment and 

Section 10 of the Constitution of Kentucky.” Id. at 762.

The Commonwealth attempts to distinguish Deno, noting that Deno was 

not under arrest as McCarthy was and that the Deno court specifically 

excluded DUI cases from its analysis.16 Neither of these points matters postBirchfield because the Supreme Court has now held that a blood test cannot be 

constitutionally justified in DUI cases under the search-incident-to-arrest 

exception. Prior to Birchfield, many courts, including the Deno Court, assumed 

that the “incident to arrest” exception to the warrant requirement applied in 

the case of blood tests following DUI arrests. Birchfield settled that issue and 

thus the distinctions Deno made between DUI cases and non-DUI cases no 

longer matter. In all cases, a criminal defendant has the constitutional right to 

refuse consent to a blood test.

Later, in Coulthard, 230 S.W.3d 572, this Court confirmed its 

commitment to Deno, but recognized that the prohibition on admitting evidence 

of refusal to consent to a warrantless search, in some circumstances, is not 

absolute. In that manslaughter case, we held Coulthard’s refusal to consent to 

fingerprint sampling could not be offered by the Commonwealth as evidence of 

his guilt, but it could be used for rebuttal and to impeach Coulthard’s 

 

16 The Deno Court described the issue presented as “whether the refusal of one, 

other than a DUI suspect, to submit to a warrantless seizure of bodily fluids may be 

introduced at trial and argued as evidence of guilt.” 177 S.W.3d at 761.
28

testimony that he acted in self-defense. Id. at 582-84. Coulthard initially 

claimed no knowledge of the crime. Id. at 582-83. As the investigation 

progressed, officers found fingerprints at the crime scene and asked if he would 

agree to fingerprinting. Id. at 583. Coulthard refused and later changed his 

story from having no knowledge of the shooting to having acted in self-defense. 

Id. The Court noted that in the context of Fifth Amendment rights the United 

States Supreme Court, when analyzing whether a constitutional right has been 

impermissibly burdened, has deemed it appropriate to consider the legitimacy 

of the challenged governmental practice. Id. at 582 (citing Jenkins v. Anderson, 

447 U.S. 231 (1980)). Emphasizing that “[a]s the traditional truth testing 

devices of the adversarial process, impeachment and rebuttal are vital to a just 

and fair trial,” the Court held those important devices should weigh heavily 

when counterbalancing “constitutional privilege” claims. Id. at 583.

Generally, such as in Deno, exercising one’s privilege to be free of 

warrantless searches is simply not probative (or has low probative 

value) to a determination of guilt, and thus, the defendant’s right 

to not be penalized for exercising such a privilege is paramount. 

However, in circumstances when such evidence is probative for 

some purpose other than to simply penalize the defendant for 

exercising a constitutional right, then notions of fair play and the 

need to preserve the truth-testing functions of the adversarial 

process may outweigh the defendant’s interest in suppressing the 

evidence.

Id. at 584 (internal citations omitted). While not admissible as evidence of 

Coulthard’s guilt of manslaughter, his refusal was properly admitted through 

rebuttal evidence and through impeachment of Coulthard’s testimony claiming 

self-defense.
29

In this case, the Commonwealth intended to introduce McCarthy’s 

refusal of a blood test as evidence of his guilt of DUI. Indeed, that is precisely 

what KRS 189A.105(2) allowed but Birchfield now establishes that a DUI 

defendant has a constitutional right to withhold consent to a blood test. Under 

Deno, use of McCarthy’s now-constitutionally-recognized right to refuse a blood 

test as evidence of guilt of DUI was improper, and unlike in Coulthard, nothing 

arose via McCarthy’s defense of the charges that would have rendered it 

admissible as rebuttal or impeachment evidence.17 The trial court properly 

held that McCarthy’s refusal to consent to the blood test could not be offered as 

evidence of his guilt, despite the statutory statement to that effect in KRS 

189A.105.

V. As the Court of Appeals Correctly Held, the Trial Court Erred in 

Allowing the Commonwealth to Introduce the Refusal to Explain Its 

Lack of Scientific Evidence That McCarthy Was Driving Under the 

Influence

Although the trial court recognized that McCarthy’s refusal to submit to 

a blood test should not be admitted as evidence of his guilt of DUI, it 

nevertheless was persuaded to allow the evidence to be admitted at trial. The 

Commonwealth insisted that jurors are aware of the scientific evidence 

typically available in a DUI prosecution and consequently the Commonwealth 

should be allowed to explain that such evidence did not exist in this case 

 

17 We recognize that the trial court allowed McCarthy to comment on the 

absence of scientific testing establishing his BAC, a ruling that seemed to stem from 

the trial court’s erroneous conclusion that the Commonwealth should be able to 

present the refusal evidence to explain the absence of any scientific testing.
30

because McCarthy refused to submit to a blood test. Even though admitted 

ostensibly for this limited purpose, the record reflects that the refusal evidence 

came in without any admonition that the jury consider that evidence solely for 

this limited purpose. 

We agree with McCarthy and the Court of Appeals that the refusal 

evidence was inadmissible under the principles clearly enunciated in Deno and 

Coulthard and should not have been accepted through the back door simply 

because the Commonwealth wanted to explain why it did not have scientific 

evidence to prove its case. This ruling eviscerated the protections accorded 

McCarthy’s Fourth Amendment rights as recognized in Deno and Coulthard. 

We also reject the Commonwealth’s stated premise for introducing the 

evidence. The absence of scientific evidence was primarily the result of the 

Commonwealth’s own actions or rather inactions. As recognized in Birchfield, 

officers could have properly asked McCarthy to submit to a breath test as 

opposed to the more invasive blood test. If he submitted to the breath test, the 

Commonwealth would have had the desired scientific BAC evidence and if he 

refused, nothing in Birchfield, Deno or Coulthard, would have precluded 

admission of that refusal of a breath test as evidence against him in the DUI 

prosecution. The difficulty the Commonwealth found itself in with regard to an 

absence of scientific evidence was largely its own doing.

Finally, although the refusal evidence was improperly admitted, we agree 

with the Court of Appeals that once admitted McCarthy was entitled to respond 

appropriately. He should have been allowed to raise the issue of the 
31

Commonwealth’s right to seek a warrant for the blood test; his refusal was not 

the end of the officer’s options for obtaining a blood test that night, even if the 

officer was personally unaware of the availability of a warrant. So, the refusal 

evidence should never have been admitted in the first instance but once it was 

the trial court erred in limiting McCarthy’s response to that evidence.18

VI. The Erroneous Admission of the Refusal Evidence Was Not 

Harmless Beyond a Reasonable Doubt, Requiring Reversal of 

McCarthy’s Conviction

Having concluded that the trial court erred by allowing the 

Commonwealth to introduce into evidence McCarthy’s refusal to submit to the 

blood test, we consider whether the constitutional error was harmless beyond a 

reasonable doubt because, if not, the conviction must be set aside. Chapman, 

386 U.S. at 23–24. Chapman advises:

An error in admitting plainly relevant evidence which possibly 

influenced the jury adversely to a litigant cannot . . . be conceived 

of as harmless. . . . [Before a federal constitutional error can be 

held harmless beyond a reasonable doubt] we consider whether 

there is a reasonable possibility that the evidence complained of 

might have contributed to the conviction.

Id. (internal citation and quotation omitted).

 

18 The Commonwealth also raises the very confusing argument that because 

McCarthy refused the blood test, he lacks standing to challenge the search, citing

Commonwealth v. Duncan, 483 S.W.3d 353 (Ky. 2015). However, as we explained in 

Warick v. Commonwealth, 592 S.W.3d 276 (Ky. 2019), rather than focusing on 

standing, a defendant’s right to raise a Fourth Amendment claim is properly analyzed 

under substantive Fourth Amendment doctrine. Here, McCarthy has a clear 

cognizable Fourth Amendment interest in the search at issue–“any compelled 

intrusion into the human body implicates significant, constitutionally protected

privacy interests.” McNeely, 569 U.S. at 159; accord Birchfield, 136 S. Ct. at 2178. 

Consequently, McCarthy’s claim for relief because of an alleged infringement of his 

constitutional right to refuse consent to a warrantless search of his blood is one 

properly before the courts.
32

“The Court has the power to review the record de novo in order to 

determine an error’s harmlessness. In so doing, it must be determined 

whether the [Commonwealth] has met its burden of demonstrating that the 

admission” of McCarthy’s refusal to submit to the blood test did not contribute 

to McCarthy’s conviction. Arizona v. Fulminante, 499 U.S. 279, 295–96 (1991) 

(internal citations omitted). “The admission of [the refusal is] quantitatively 

assessed in the context of other evidence presented in order to determine 

whether its admission is harmless beyond a reasonable doubt.” Id. at 280 

(citation omitted). “To say that an error did not ‘contribute’ to the ensuing 

verdict is not, of course, to say that the jury was totally unaware of that feature 

of the trial later held to have been erroneous,” but “to find that error 

unimportant in relation to everything else the jury considered on the issue in 

question, as revealed in the record.” Yates v. Evatt, 500 U.S. 391, 403 (1991).

Our precedent acknowledges the reasonableness of inferring that one is 

guilty of being intoxicated when he refuses to take a BAC test, the belief being 

that the accused sober person would take a test to provide evidence in his 

favor, while the accused intoxicated person would refuse a test to avoid 

producing evidence against himself. See Cook v. Commonwealth, 129 S.W.3d 

351, 360 (Ky. 2004). Nevertheless, a refusal may not have a relationship to 

guilt. When a defendant decides to testify, he may be asked his reason for 

refusing a test, and that reason may have no relation to his consciousness of 

guilt. But when a defendant decides not to testify, even if the prosecution does 

not explicitly comment that the defendant’s refusal of the test is an indication 
33

of guilt, without an admonition otherwise,19 the jury is left with the task of 

drawing reasonable inferences from the evidence.

Given the jury could reasonably infer McCarthy’s guilt from Officer 

Fleury’s testimony that after arresting McCarthy he refused the test, we must 

assess the admission of the refusal in the context of other evidence presented 

in order to determine whether its admission was harmless beyond a reasonable 

doubt. We consider various factors including “the importance of the witness’ 

testimony in the prosecution’s case, whether the testimony was cumulative, the 

presence or absence of evidence corroborating or contradicting the testimony of 

the witness on material points, the extent of cross-examination otherwise 

permitted, and, of course, the overall strength of the prosecution’s case.” 

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (citations omitted). In order 

to convict McCarthy, the Commonwealth had the burden to prove beyond a 

reasonable doubt that while operating the motor vehicle, McCarthy was under 

the influence of alcohol and/or any other substance(s) which impaired his 

driving ability.

Officer Fleury testified that he was parked in an alley near a bar and 

shortly after he heard a vehicle spinning tires on gravel, he saw a vehicle 

traveling at a high rate of speed from the bar’s parking lot into another parking 

 

19 Although the trial court discussed giving a limiting instruction during the 

hearing of McCarthy’s motion to exclude his refusal from evidence, a KRE 105 

admonition was not requested during trial. Without the issue before us, we do not 

address whether such an admonition would have cured any error from the evidence as 

introduced.
34

lot, turn onto the roadway, fishtail, almost lose control, and continue to travel 

at a high rate of speed down the street. Officer Fleury caught up with the 

vehicle which McCarthy was driving, and McCarthy turned onto a side street 

and stopped.

Officer Fleury described his initial assessment of McCarthy which 

included red glassy eyes, a little bit of slurred speech, being a little lethargic, a 

pungent smell of alcohol coming from the vehicle, and the smell of alcohol 

present when McCarthy was removed from the vehicle. He described 

McCarthy’s difficulties on the field sobriety tests, including difficulties on the 

three eye tests, such as jerkiness and lack of smooth pursuit in the eyes; not 

being able to maintain balance on one leg without swaying and using his arms 

for balance and contemporaneously losing count, repeating and jumbling 

numbers; swaying, using his arms for balance, and not being able to 

continuously walk in a straight line because of stopping and also stepping off 

the line. The Commonwealth played a video of the stop and field sobriety tests 

for the jury and the jury requested to view it a second time during deliberation. 

The driving behaviors which caused Officer Fleury to stop McCarthy were not 

part of the video.

Officer Fleury was cross-examined about McCarthy’s driving behavior

shown on the video, driving which did not indicate impairment. Defense 

counsel, while playing the video, also questioned Officer Fleury about his 

interpretation of McCarthy’s field sobriety test behavior, specifically what he 

viewed as indicating impairment. Officer Fleury explained that his description 
35

of McCarthy hopping referred to McCarthy moving his foot in order to maintain 

his balance and, at one point, his assessment of slurred speech came from 

McCarthy’s change in pitch.

Three witnesses who spent time with McCarthy that evening testified. 

None of them knew McCarthy was prescribed pain medicine or was aware if 

McCarthy was taking any, but all three testified they did not observe McCarthy 

drinking alcohol that evening. One witness who did not go to the bar testified 

McCarthy stated he was going to call his friends and offer to be a designated 

driver that evening. Two of the witnesses went to the bar with McCarthy about 

11:00 p.m., one of whom had not been drinking alcohol and was sober when 

the stop occurred. That witness testified that he would not have ridden with 

McCarthy if he was impaired and as a licensed driver, he could have driven. 

Although the jury heard on the video McCarthy tell Officer Fleury during the 

1:00 a.m. stop that he went to the bar to pick up his friends, the two witnesses 

testified that was not the circumstance. The jury also heard McCarthy provide 

inconclusive answers to Officer Fleury’s question as to whether he had been 

drinking before McCarthy denied that he had been drinking.

The Commonwealth during its opening statement informed the jury that 

it would not be presenting BAC results as part of its evidence of impairment 

because McCarthy refused the test. During trial, the Commonwealth 

introduced McCarthy’s refusal to take the test. Because McCarthy did not 

testify, his reason for refusing the blood test was not offered and without an 
36

admonition from the trial court, the jury could reasonably infer that McCarthy 

refused the blood test because he was intoxicated.

On its review, the Court of Appeals concluded that admitting McCarthy’s 

refusal was not harmless beyond a reasonable doubt “in light of the weak 

evidence used to convict” McCarthy. Having considered the record, we find this 

a close case. With the video evidence, the jury was able to see some of 

McCarthy’s driving behavior and, except for McCarthy’s eye movement during 

the eye specific tests, McCarthy’s field sobriety performance, which Officer 

Fleury relied upon to arrest McCarthy. McCarthy’s performance was not 

perfect, but defense counsel challenged Officer Fleury’s interpretation of the 

behaviors he viewed as indicative of impairment and the fact that McCarthy did 

not “fail” any test.

Under the standard for determining whether admission of the blood test 

refusal into evidence must result in a reversal of McCarthy’s conviction–is there 

a reasonable possibility that the evidence complained of might have 

contributed to the conviction–we agree with the Court of Appeals. Officer 

Fleury’s testimony was the foundation of the Commonwealth’s case and his 

testimony about the refusal was not cumulative. McCarthy chose not to testify, 

which left the jury, absent an admonition to the contrary, free to infer 

McCarthy’s consciousness of guilt from the refusal. With the Commonwealth’s 

evidence being less than overwhelming and McCarthy having credible 

witnesses in his favor, a reasonable possibility exists that the inference of guilt 

associated with the refusal tainted the jury’s view of McCarthy’s behavior 
37

during the stop and performance on the field sobriety tests, contributing to his

conviction. Under these circumstances, we cannot say the erroneous 

admission of the refusal evidence was harmless beyond a reasonable doubt.

CONCLUSION

For the foregoing reasons, the Court of Appeals’ decision is affirmed, and 

this matter is remanded to Daviess Circuit Court for further proceedings 

consistent with this Opinion.

All sitting. Minton, C.J.; Keller, Lambert, and Nickell, JJ., concur. 

VanMeter, J., concurring in part and dissenting in part by separate opinion in 

which Conley, J., joins.

VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART. 

Respectfully, I concur in part and dissent in part. I agree that McCarthy’s 

refusal to permit the blood draw cannot be used to enhance his DUI penalty. I 

dissent however from so much of the majority opinion as holds that McCarthy’s 

refusal cannot be admitted into evidence, as statutorily permitted under KRS 

189A.105. The majority opinion is predicated largely on an expansive 

interpretation of Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). At issue in 

Birchfield was whether the Fourth Amendment permitted North Dakota to 

criminalize Birchfield’s refusal to submit to a chemical test, as a stand-alone 

act, in an effort to coerce his acquiescence. Id. at 2185. While the Court 

distinguished between blood and breath tests, significantly, it stated,

Our prior opinions have referred approvingly to the general concept 

of implied-consent laws that impose civil penalties and evidentiary 

consequences on motorists who refuse to comply. See, e.g., 
38

[Missouri v.] McNeely, [569 U.S. ____, 133 S. Ct. 1552, 1565–66

(2013)] (plurality opinion); Neville, supra, at 560, 103 S. Ct. 916. 

Petitioners do not question the constitutionality of those laws, 

and nothing we say here should be read to cast doubt on them.

136 S. Ct. at 2185 (emphasis added). Two points. First, the Supreme Court 

explicitly tells us that the evidentiary consequence of McCarthy’s refusal has 

no constitutional implication. The majority opinion therefore errs in imposing 

one. And second, if an evidentiary prohibition exists, that prohibition must be 

found in our state law. In my view, the majority erroneously extrapolates such 

a prohibition primarily from Deno v. Commonwealth, 177 S.W.3d 753 (Ky. 

2005). 

Without unduly lengthening this opinion, suffice to note that in Deno, 

this Court drew valid distinctions between its facts and those in 

Commonwealth v. Hager, 702 S.W.2d 431 (Ky. 1986), involving a DUI arrest. In 

Hager, this Court held as constitutional the ability to comment on a 

defendant’s refusal to submit to a blood-alcohol test. Id. at 432 (citing South 

Dakota v. Neville, 459 U.S. 553 (1983)). Admittedly, the test in Hager was a 

breath test, but the Deno court’s distinction was not based on the type of test, 

breath or blood. Rather, it was based on the non-exigent circumstances of the 

police investigation of Deno and the fact that he was not then under arrest. 

177 S.W.3d at 760-61. In this case, as in Hager, McCarthy was under arrest 

and exigent circumstances existed.

Finally, I agree with the majority, as recognized in Coulthard v. 

Commonwealth, 230 S.W.3d 572 (Ky. 2007), that the prohibition on the 

admission into evidence of a refusal to consent to a warrantless search is not 
39

absolute. While the majority accurately relates the facts in Coulthard, I would 

extend its holding to DUI arrests/refusals, as recognized in both Hager and 

Deno, and give effect to the legislative policy as expressed in KRS 189A.105.

I would reverse the Court of Appeals and affirm the Daviess Circuit 

Court’s judgment of conviction of McCarthy.

Conley, J., joins.

COUNSEL FOR APPELLANT:

Daniel J. Cameron

Attorney General of Kentucky

Mark Daniel Barry

Assistant Attorney General

COUNSEL FOR APPELLEE:

Kathleen Kallaher Schmidt

Erin Hoffman Yang

Assistant Public Advocates