RENDERED: SEPTEMBER 30, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0704-DG

JOSE ELADIO ORTIZ APPELLANT

V.

ON APPEAL FROM THE COURT OF APPEALS 

 NO. 2018-CA-0304 

LOGAN CIRCUIT COURT NO. 17-CI-00218 

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE CONLEY

REVERSING AND REMANDING

This case is an appeal of Court of Appeals’ decision reversing the Logan 

Circuit Court’s denial of a writ of prohibition. The writ seeks to prohibit 

enforcement of a suppression order of the Logan District Court. The underlying 

issue of the writ is whether the district court properly suppressed a blood 

alcohol concentration (BAC) result collected from Jose Eladio Ortiz (Ortiz), the 

Appellant, who is a Spanish-speaking person suspected of drunk driving. Ortiz 

was read Kentucky’s implied consent law by his arresting officer in English, not 

Spanish, before submitting to a blood draw. The Court of Appeals reversed the 

circuit court’s denial, granting the Commonwealth’s writ of prohibition.

For the following reasons, we reverse and remand to the circuit court.
2

I. FACTUAL AND PROCEDURAL HISTORY

On September 10, 2016, Russellville Police Officer Chad Eggleston 

responded to a report that a vehicle was operating on the wrong side of the 

road. Officer Eggleston pulled the vehicle over and approached. He was wearing 

a body cam. As he neared the vehicle, Officer Eggleston noticed a strong order 

of alcohol on both the driver, Ortiz, and the car. Officer Eggleston questioned 

Ortiz and asked if he spoke and understood English. Ortiz responded

affirmatively. Officer Eggleston asked Ortiz to complete three field sobriety 

tests. Ortiz failed all three. Additionally, Officer Eggleston performed a 

preliminary breath test, which showed the presence of alcohol. 

Officer Eggleston believed Ortiz to be highly intoxicated. He arrested Ortiz 

and transported him to Logan Memorial Hospital. At the hospital, Officer 

Eggleston read Ortiz Kentucky’s implied consent warning aloud in English. 

Ortiz agreed to have his blood drawn by medical personnel. The blood test 

came back with a BAC of .233. Ortiz was charged with operating a motor 

vehicle under the influence of alcohol—first offense—and having no operator’s 

license. 

Six months after the traffic stop, on March 9, 2017, Ortiz moved to 

suppress the BAC result, arguing Ortiz could not understand English and that 

he did not understand he could refuse the blood test. Ortiz also moved to 

exclude evidence of the failed field sobriety tests. 

The district court watched the body camera footage from the traffic stop 

and the hospital visit. The district court found, based on a totality of the 
3

circumstances, that the arresting officer used the tools provided to him during 

the stop but violated the implied consent statute by not “informing” Ortiz in a 

way that “might” have avoided the search or resulted in a less abusive search. 

As a result, the district court suppressed the BAC result. However, the district 

court found that Officer Eggleston had probable cause to make both the stop 

and the arrest. The district court ruled the prosecution could move forward 

with its case.

The Commonwealth, alleging irreparable injury, petitioned the circuit 

court for a writ of prohibition to prevent enforcement of the suppression order. 

After hearing argument, the circuit court denied the writ of prohibition, 

agreeing that KRS1 189A.105 requires that a person suspected of drunk driving 

be “informed” of the consequences of submitting to the testing as well as 

refusing testing. The Commonwealth appealed to the Court of Appeals as a 

matter of right. 

The Court of Appeals disagreed with the circuit court and reversed,

granting the Commonwealth’s writ of prohibition. The Court of Appeals 

determined that Ortiz gave no indication to Officer Eggleston that he did not 

understand English well enough to comprehend what was being asked. As a 

result, they held that no statutory violation had occurred because the statute 

does not require a suspect to understand the implied consent warning, but 

only that it must be read to the suspect. 

Ortiz moved for discretionary review, which we granted. 

 

1 Kentucky Revised Statutes.
4

II. ANALYSIS

The issuance of a writ of prohibition is an extraordinary remedy. Allstate 

Prop. & Cas. Ins. Co. v. Kleinfeld, 568 S.W.3d 327, 331 (Ky. 2016). As explained 

in Southern Financial Life Ins. Co. v. Combs:

[C]ourts are decidedly loath to grant writs as a specter of 

injustice always hovers over writ proceeding. This specter is 

ever present because writ cases necessitate an abbreviated 

record which magnifies the chance of incorrect rulings that 

would prematurely and improperly cut off the rights of 

litigants.

413 S.W.3d 921, 925 (Ky. 2013) (internal citations and quotations omitted). 

Thus, this Court has a two-class analysis in writ cases. 

Writ cases are divided into two classes, which are 

distinguished by whether the lower court allegedly is (1) acting 

without jurisdiction (which includes beyond its jurisdiction), 

or (2) acting erroneously within its jurisdiction . . . When a 

writ is being sought under the second class of cases, a writ 

may be granted upon a showing . . . 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, however, a narrow 

exception to the irreparable harm requirement. Under this 

exception, certain special cases will allow a writ to be issued 

in the absence of a showing of specific great and irreparable 

injury . . . provided a substantial miscarriage of justice will 

result if the lower court is proceeding erroneously, and 

correction of the error is necessary and appropriate in the 

interest of orderly judicial administration. 

Id. at 926. 

In this case, we must consider whether the requirements of the second 

class of writs have been met. The Commonwealth must show that (1) the lower 

court is acting or is about to act erroneously; (2) it had no adequate remedy by 

appeal, and (3) it would suffer great and irreparable injury if denied relief. 
5

“[U]ltimately, the decision whether or not to issue a writ of prohibition is 

a question of judicial discretion. So review of a court’s decision to issue a writ 

is conducted under the abuse-of-discretion standard. That is, we will not 

reverse the lower court’s ruling absent a finding that the determination was 

arbitrary, unfair, or unsupported by sound legal principles.” Appalachian 

Racing, LLC v. Commonwealth, 505 S.W.3d 1, 3 (Ky. 2016) (internal citations 

and quotations omitted).

As noted above, the Court of Appeals focused its analysis on the first 

requirement for a second-class writ: whether the lower court was acting or 

about to act erroneously. In this analysis, the Court of Appeals attempted to 

reach and resolve the substantive issue on the meaning of informed consent in 

KRS 189A.105. We need not weigh in on the substantive informed consent 

issue at this time because we hold that the Commonwealth has not met one of

the threshold requirements for a second-class writ. 

The Commonwealth fails to prove great injustice or irreparable harm. 

While a blood test is compelling evidence, it is not strictly necessary to try a 

DUI case. The district court makes clear in the May 10, 2017 Order, which 

granted Ortiz’s motion to suppress, there was (1) probable cause for Officer 

Eggleston to initiate the stop due to the careless or reckless manner of Ortiz’s 

driving; (2) reasonable and articulate suspicion for Officer Eggleston to begin a 

DUI investigation; and (3) probable cause for Officer Eggleston to effectuate a 

DUI arrest of Ortiz. These determinations were based on a totality of the 

circumstances analysis, specifically the initial call reporting a vehicle fitting the 
6

description of Ortiz’s vehicle, Officer Eggleston’s firsthand observation of Ortiz 

driving off the shoulder, the smell of alcohol Officer Eggleston detected on Ortiz 

and in the car, and Ortiz’s failure to pass the field sobriety tests. This evidence 

has not been suppressed. The Commonwealth can use all of it in trial when 

prosecuting Ortiz. Ortiz’s blood test, while useful, is not the gravamen of the 

Commonwealth’s case. Thus, there has been no great injustice or irreparable 

harm done. 

We reiterate that a writ is an extraordinary remedy and should only be 

granted when a writ of prohibition meets the requirements. In this case, we 

hold that the Commonwealth failed to show a great injustice and irreparable 

harm if its requested writ of prohibition was not granted. Accordingly, we hold 

that the writ should not be granted. Accordingly, it is not appropriate for us to 

address the issue of informed consent at this time. 

III. CONCLUSION 

For the forgoing reasons, we reverse the Court of Appeals opinion and 

remand to the Logan Circuit Court for reinstatement of the order denying the 

Commonwealth’s petition for writ of prohibition.

Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Conley, JJ, sitting. 

All concur. Nickell, J., not sitting. 
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COUNSEL FOR APPELLANT:

Ami L. Brooks

Ami Brooks Law, PLLC

157 West 5th Street

Russellville, KY 42276

COUNSEL FOR APPELLEE:

Mark D. Barry 

Assistance Attorney General 

Office of the Solicitor General 

Criminal Appeals Unit

1024 Capital Center Drive, Suite 200

Frankfort, KY 40601
Supreme Court of Kentucky

2019-SC-0704-DG

JOSE ELADIO ORTIZ APPELLANT

ON APPEAL FROM THE COURT OF APPEALS

V. NO. 2018-CA-0304

LOGAN CIRCUIT COURT NO. 17-CI-00218

COMMONWEALTH OF KENTUCKY APPELLEE

ORDER CORRECTING 

The Opinion issued on September 30, 2021 inadvertently listed an 

incorrect trial court and case number and is hereby corrected.

ENTERED: September 30, 2021.

_______________________________________

CHIEF JUSTICE