RENDERED: MAY 21, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2019

- CA

- 1254

- D G

BRIAN WARD APPELLANT

v. ON DISCRETIONARY REVIEW FROM JESSAMINE CIRCUIT COURT

HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NOS. 18

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- 02024 AND 19

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COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRM ING

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BEFORE: CLAYTON, CHIEF JUDGE ; ACREE AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Brian Ward brings this appeal upon a grant of discretionary

review of the July 23, 2019, Opinion of the Jessamine Circuit Court affirming a n April 9, 20 19 , order of the Jessamine District Court entered upon a conditional
guilty plea to operating a motor vehicle under the influence of alcohol/drugs
(DUI), third offense. We affirm.- 2

- The relevant underlying fac t s are uncontroverted and were
summarized by the circuit court in its J uly 23 , 2019 , O pinion as follows:

[Ward] was arrested on July 5, 2018 [
, ] for driving under the influence following a collision on U.S. [Highway] 27. He w as transported to St. Joseph Jessamine for a blood test. At the hospital Officer [ Cody ] Smallwood read him the implied consent form, and [Ward] consented to the test. The officer then transported [Ward] to the Jessamine C ou nty Detention Center for booking. After about fifteen minutes at the jail, the officer advised [Ward] of his right to an independent blood tes t pursuant to [Kentucky Revised Statutes ( KRS )] 189A.105(4). The time from when [Ward] submitted to the officer ’ s t est and when the officer advised [Ward] of his right to an independent test totaled approximately thirty [

- ] five minutes. [Ward] asked the officer if the independent test meant going back to the hospital, to which the officer replied in the affirmative, or to another facility. [Ward] declined the independent test, at least in part because of the discomfort he was feeling from the accident. Shortly after, at the request of the Detention Center, the officer transported [Ward] back to the hospital to be medically cleared for booking. No independent test was requested or performed.
Opinion at 1

- 2. Ward was su bsequently charged in district court with DUI , third
offense. KRS 189A.010(5)(c).

In the district court action, Ward filed a motion to suppress the results

of the blood alcohol test taken on July 5, 2018. As a basis for suppression, Ward

asserted tha t Officer Cody Smallwood violated KRS 189A.105(4) by failing to

offer Ward an independent blood test “ [ i ] mmediately following the administration

of the final test requested by the officer [

. ] ” KRS 189A.105(4). By order entered- 3

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January 15, 2019, the distri ct court denied Ward ’ s motion to suppress the results of

the blood alcohol test. W ard then entered a conditional guilty plea t o DUI, third

offense. By order entered April 9, 2019, Ward was sentenced to 210 days,
probated for two years.

Ward pursued a di rect appeal to the circuit court . Therein, Ward
alleged the district court erroneously den ied his motion to suppress evidence. By
Opinion entered July 23, 2019, the circuit court concluded Ward ’ s motion to
suppress evidence was properly denied by the district court , and affirmed the April

9, 20 19 , or der

. A motion for discretionary review was filed by Ward, and this
Court granted same by order entered December 23, 2019

.

Our review of a n order denying a motion to suppress evidence is

pursuant to a two

- prong test. Commonwealth v. Mitchell
, 610 S.W.3d 263, 268
(Ky. 2020)

. Under the first prong of the test , we review the court ’ s findings of fact

under the clearly erroneous standard. Id. Under the second prong of the test , we

review the court ’ s application of law to the facts de novo. Id. In th is case , neither
party has challenged the court ’ s findings of fact, so we will proceed to review the

court ’ s application of law to the facts.

As noted, Ward contends the circuit court erroneously affirmed the

district court ’ s denial of his motion to suppress evidence. More specifically, Ward

asserts the results of the blood alcohol test should have be en suppressed due to the- 4

-

officer ’ s failure to comply with KRS 189A.105(4) by not offer ing Ward “ the
option of obtaining an independent blood test immediately following the final test

requ ested by the officer.” Ward ’ s Brief at 7. Ward particularly argues he should

have been offered the ind e pendent blood test while still at the hospital rather than
thirty

- five minute s later at the detention center. Ward maintains that KRS
189A.105(4) was violated by the delay between when the final test was

administered a nd when Ward was informed of his right to an independent blood

test

. In response, the Commonwealth asserts the word “immediately ” in KRS
189A.105(4) should be interpreted as “within a reasonable time.”

Commonwealth ’ s Brief at 7. And, the Commonwealth submits that when offered,

Ward declined O fficer Smallwood ’ s offer for an independent blood test ; thus, any alleged violation of KRS 189A.105(4) i s immaterial

.

T he applicable statutory language is found in KRS 189A.105(4),

which provides:

Immediately following the administration of the final test requested by the officer, the person shall again be infor med of his or her right to have a test or tests of his or her blood performed by a person of his or her choosing described in KRS 189A.103 within a reasonable time of his or her arrest at the expense of the person arrested. He or she shall then be asked “Do you want such a test?” The officer shall make reasonable efforts to provide transportation to the tests.- 5

-

P ursuant to the relevant statutory language, “once a defendant has consented to the
requested alcohol or subst an ce test and the test has been administered, KRS
189A.105(4) directs that the officer must give a second warning of the defendant ’ s right to an independent test, and the statute requires a ‘ yes ’ or ‘ no ’ answer as to

whe ther a defendant desires such a test.” Commonwealth v. Morgan , 583 S.W.3d
432, 434 (Ky. App. 2019).

It is well

- established that e vidence is generally suppressed under the
exclusionary rule only in response to a search that is “violative of an individual ’ s constitutional rights. ” Id. at 435 ( citing Copley v. Commonwealth
, 361 S.W.3d
902, 905 (Ky. 2012) ) . However, the Kentucky Supreme Court has held that
suppression may also be warranted if the re has been a violation of a defendant ’ s statutory right that caus e d “ prejudice ” or i f there wa s a “ deliberate disregard ” of

the statute

. Id. ( citation omitted) ; see also Commonwealth v. Bedway , 466 S.W.3d
468, 477 (Ky. 2015)

. Herein, Ward has alleged violation of a statutory right rather
than a constitutional right; therefore, our analysis shall proce ed accordingly.

In the case sub judice
, there is no need to determine whether Ward ’ s statutory right under KRS 189A.105(4) was violated as no prejudice or deliberate
disregard was demonstrated

. W hen Ward was offered the independent blood test
at the detention center some thirty

- five minutes after the final blood test had been
administered at the hospital, Ward declined to exercise his right to take the- 6

-

independent blood test. Thereafter, Ward was again taken to the hospital for

medical treatment and did not request to have the independent blood test
performed. Additionally , Ward has not demonstrated that Of f icer Smallwood
deliberately disregarded the mandates of KRS 189A.105(4). Under these fact s, we

conclude that Ward failed to demonstrate that any alleged violation of KRS
189A.105(4) was prejudic ial or undertaken with a deliberate disregard thereof. As
such, we do not believe the circuit court erred by affirming the district court ’ s

denial of Ward ’ s motion to suppress

.

For the foregoing reasons, we affirm the July 23, 2019, Opinion of the
Jessamine Circuit Court affirming the April 9, 20 19
, order of the Jessamine

District Court.

A CREE, JUDGE, CONCUR S

. CLAYTON, CHIEF JUDGE, CONCURS IN RESULT ONLY AND

FILES SEPARATE OPINION.

CLAYTON, CHIEF JUDGE: I reluctantly concur with the majority opinion. The
question before us as well as the district and circuit courts was whether KRS
189A.105(4) should be strictly construed. Both the district court and circuit court
analyzed what the word “immediately” means in section (4) of the statute, as well
as whether Ward suffered any prejudice by the delay of the notification of the right

to a second test. However, there is an additional question to be considered. That- 7

-

question is whether the officer deliberately disregarded the mandates of the statute.
That question was apparently not raised to the trial court and therefore is not now
properly before us.

The courts belo w as well as the parties have cited Hardin v.

Com monwealth , 491 S.W.3d 514 (Ky. App. 2016)
, and Commonwealth v. Long , 118 S.W.3d 178 (Ky. App. 2003). Although KRS 189A.105 was mentioned in the

Hardin and the Long case s , those cases primarily addressed the interpretation of

KRS 189A.103. In Hardin , the defendant argued that the deputy failed to provide
him with an independent blood test pursuant to KRS 189A.103. In Long , the sole
issue on appeal was whether, in declining to allow the defendant the opportunity to
telephonically contact a friend to bring monies to pay for an independent blood
test, the arresting officer denied the defendant of her right to proceed under KRS

189A.103.
However, the case closest on point to the case at bar is

Commonweal th v. Morgan
, 583 S.W.3d 432 (Ky. App. 2019). In Morgan , our

Court determined that an officer ’ s failure to read a second independent blood test
warning to the defendant violated the statutory mandate of KRS 189A.105(4). Id

.
at 434. Specifically, our Cou rt in Morgan examined whether, if the mandate
contained in the foregoing language was violated, the breathalyzer results should
be suppressed. Id

. Therefore, the Court had to determine not only whether a- 8

-

statutory right was violated, but also whether suc h violation either resulted in
prejudice to Morgan or showed evidence of the officer ’ s “deliberate disregard” of

the statute. Id . at 435.

Our Court decided that the officer violated the clear statutory mandate
when he did not immediately give the second warning and that no reason existed
for the officer not to read the second warning between the breath test and taking
him to booking. Id

. Moreover, because the officer deliberately disregarded the
mandate by marking “no” on a form to answer the specific q uestion of whether the
defendant had sought an independent blood test, the Court concluded that the
breathalyzer test should be suppressed.

In the case at bar, we do not know if there was a reason that the
officer did not read the second warning immediately following the administration
of the test requested by the officer. The district and circuit courts did determine
that there was no prejudice to Ward caused by the delay in informing him later of
the right to a second test. Although there was disagreement at oral argument as to
whether the officer in this case deliberately disregarded the mandate, there
apparently was no testimony at trial specifically about this
, and deliberate
disregard was not argued to either the district or circuit court. Thus, our Court ’s
affirming the judgment below is appropriate.

It should be noted, however, that the Commonwealth stated to our- 9

-

Court that police officers do not have to know the law. While no case law was
cited for this proposition, the statement could be a reference to the U nited States
Supreme Court case Heien v. North Carolina , 574 U.S. 54, 135 S. Ct. 530, 190 L.

Ed. 2d 475 (2014). The Heien Court, however, stated that “[t]he Fourth

Amendment tolerates only reasonable mistakes, and those mistakes

— wh ether of

fact or of law

— must be objectively reasonable.” 574 U.S. at 66, 135 S. Ct. at 539
(emphasis in original). Heien also pointed out that “an officer can gain no Fourth
Amendment advantage” because he or she did not adequately study the laws that

the officer “is duty

- bound to enforce.” 574 U.S. at 67, 135 S. Ct. at 539

- 40.

Although mistakes may happen, KRS 189A.105 has been in effect for
two decades, and officers should be aware of what it requires. The wording of the
statute is very specific. KRS 189A.105(4) requires that the driver be informed of
the right to a second test “immediately.” “Immediately” is not the same as “within
a reasonable time,” and the legislature differentiated between the two terms in the

statute. See
, e.g. , KRS 189A.105(2 )(a)2.b. To ignore the distinction between
“immediately” and “within a reasonable time” is to render part of the provisions of
the statute meaningless, and it bears repeating that it is our duty to construe a
statute “so as to effectuate the plain meaning and unambiguous intent expressed in

the law. A corresponding rule of construction is that a statute should be construed,
if possible, so that no part of its provisions are rendered meaningless.” Bob Hook- 10

-

Chevrolet Isuzu v. Transportation Cabinet
, 983 S. W.2d 488, 492 ( Ky. 1998)
(citations omitted). Notwithstanding the Commonwealth ’ s argument that an
immediate or “instant” warning is not necessary to protect a defendant ’ s right to an
independent test within a reasonable time of the arrest, that is exactly what is
required by the statute. The Commonwealth must comply with its own laws.
Strict compliance with the statute is required.

BRIEF S AND ORAL ARGUMENT FOR APPELLANT:
Ryan Robey Lexington, Kentucky BRIEF FOR APPELLEE:

Daniel Cameron Attorney General of Kentucky Frankfort, Kentucky

Heather Warren Special Assistant Attorney General Nicholasville , Kentucky

ORAL ARGUMENT FOR APPELLEE:
Eric Wright Special Assistant Attorney General Nicholasville , Kentucky