RENDERED: OCTOBER 29, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-1691-MR

ANTONIO PEREZ LOPEZ APPELLANT

ON REMAND FROM THE KENTUCKY SUPREME COURT

(FILE NO. 2019-SC-0717)

APPEAL FROM KNOX CIRCUIT COURT

v. HONORABLE GREGORY A. LAY, JUDGE

ACTION NO. 18-CR-00065

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.

GOODWINE, JUDGE: This case is before us on remand from the Kentucky 

Supreme Court for reconsideration after Commonwealth v. McCarthy, 628 S.W.3d

18 (Ky. 2021). 
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Antonio Perez Lopez (“Lopez”) appeals a judgment and sentence of 

the Knox Circuit Court convicting him of one count of first-degree assault, one 

count of second-degree assault, leaving the scene of an accident, and driving under 

the influence of alcohol. Lopez was sentenced to a total of thirteen years of

imprisonment. After careful review, we affirm. 

BACKGROUND

On January 20, 2018, Lopez’s vehicle crossed the centerline of Route 

11 in Knox County and collided with a vehicle driven by Tiffany Cummins 

(“Tiffany”). Riding with Tiffany was her husband Chad Cummins (“Chad”). Both 

suffered physical injuries from the accident. A Knox County grand jury indicted 

Lopez on two counts of first-degree assault, leaving the scene of an accident, and 

operating a motor vehicle under the influence of intoxicants, third offense. He pled 

not guilty. Prior to trial, Lopez filed a motion to suppress challenging the 

admissibility of his refusal to consent to a blood test. The trial court denied the 

motion.

At trial, Tiffany testified that immediately before the impact, she saw 

headlights quickly approaching her vehicle. Lopez testified the Cummins’s vehicle 

had its high beams on as it came toward him, which caused him to lose control of 

his vehicle. He acknowledged drinking two beers before driving that night and 

stated he was driving fifty-five miles per hour at the time of the accident. 
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Deputy Andrew Lawson was the first officer on the scene. He 

testified Lopez left the scene of the accident on foot. When Lopez was brought 

back to the scene, he refused to perform field sobriety tests. Lopez denied being

drunk, instead testifying that he felt drunk because he had been in a wreck. Deputy 

Lawson testified Lopez was unsteady on his feet. He arrested Lopez and took him 

to the hospital for a blood test. Deputy Lawson read Lopez the implied consent 

form and informed him of his right to contact an attorney. Lopez unsuccessfully 

attempted to contact an attorney and refused to consent to a blood draw. Due to his 

refusal, his blood was not drawn. Lopez testified, denying that he refused to take 

the blood test and that he was ever taken to the hospital. 

Following testimony and arguments of counsel, the trial court 

instructed the jury on first-degree assault

1

and second-degree assault2for Tiffany’s 

injuries; first-degree assault, second-degree assault, and fourth-degree assault3for

Chad’s injuries; leaving the scene of an accident;

4

and driving under the influence 

of alcohol (“DUI”).

5 The jury found Lopez guilty of one count of first-degree 

 

1 Kentucky Revised Statutes (KRS) 508.010(1)(b) (Class B felony). 

2 KRS 508.020(1)(c) (Class C Felony).

3 KRS 508.030 (Class A Misdemeanor). 

4 KRS 189.580.

5 KRS 189A.010. 
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assault for Tiffany’s injuries, one count of second-degree assault for Chad’s 

injuries, leaving the scene of an accident, and DUI, third offense.

6

 

The jury recommended thirteen years on one count of first-degree 

assault, eight years on one count of second-degree assault, five years for leaving 

the scene of an accident, and twelve months for DUI, third offense, with all counts, 

except the DUI, to run concurrently. The jury recommended that the twelve-month 

sentence on the DUI run consecutively for fourteen years. However, the trial court 

sentenced Lopez to thirteen years, running all counts concurrently. This appeal 

followed. 

ANALYSIS

I. EVIDENCE OF LOPEZ’S REFUSAL TO SUBMIT TO A BLOOD 

TEST WAS IMPROPERLY ADMITTED. 

First, Lopez argues the trial court erred in denying his motion to 

suppress evidence of his refusal to consent to a warrantless blood draw as evidence 

of his guilt. “Our analysis of trial court rulings on suppression motions involves a 

two-stage review, using a clear error standard for factual findings and a de 

novo standard for legal conclusions.” Commonwealth v. Brown, 560 S.W.3d 873, 

876 (Ky. App. 2018) (citations omitted). 

Below, Lopez urged the trial court to find he had a Fourth 

Amendment right to refuse to submit to a blood test without a warrant under 

 

6 KRS 189A.010(5)(c).
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Birchfield v. North Dakota, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016). Lopez 

argued that because the officer needed a warrant to conduct a blood test, his refusal 

to undergo such an examination is protected under the Fourth Amendment. We 

agree. In Birchfield, the Supreme Court of the United States addressed the 

constitutionality of North Dakota’s implied consent statute which “impose[d]

penalties on motorists who refuse[d] to undergo testing when there is sufficient 

reason to believe they are violating the State’s drunk-driving laws.” Id. at 2166. 

The Supreme Court held “reasonableness is always the touchstone of Fourth 

Amendment analysis[.] . . . And applying this 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 2186 (citation omitted).

In McCarthy, our Supreme Court recently held that under Birchfield, a 

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

criminal penalty for DUI, and under controlling precedent could not be used as 

evidence that he was guilty of DUI. McCarthy, 628 S.W.3d 18. Accordingly, the 

trial court erred in admitting evidence of Lopez’s refusal to consent. However, the 

error was harmless for two reasons: (1) there was other evidence of Lopez’s 

intoxication; and (2) the twelve-month sentence imposed on the DUI conviction 

was run concurrently with the thirteen-year sentence imposed on the felony 

convictions. 
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In both McCarthy and the case before us, the defendant was 

transported to a hospital for a blood test and the defendant refused the test and, 

then later, filed a motion to exclude the introduction of his refusal to take a 

warrantless blood test in reliance on Birchfield. In McCarthy, the trial court 

prohibited the Commonwealth from using the defendant’s refusal as evidence of 

intoxication or as an aggravating circumstance but did permit the Commonwealth 

to use the fact of his refusal to explain why there were no test results and 

prohibited the defendant from asking the officer why he did not obtain a warrant 

for a blood test. In the case before us, the trial court allowed the Commonwealth 

to use Lopez’s refusal of consent against him as evidence of guilt. 

Lopez’s constitutional rights were violated by allowing the 

introduction of evidence that he refused consent where he had an absolute right to 

refuse a warrantless search and seizure of his blood.7 Thus, a legal error occurred, 

and the only remaining question is whether it was harmful.

In McCarthy, there was strong evidence that the defendant was not 

intoxicated where three witnesses testified they had been out with the defendant all 

evening and did not see him drink any alcohol, the officer testified he stopped the 

 

7 Birchfield has not eliminated the effectiveness of Commonwealth v. Hager, 702 S.W.2d 431 

(Ky. 1986), and KRS 189A.105(2)(a)1. in other circumstances. Both continue to be good law in 

allowing a refusal to take a breath or urine test incident to a DUI arrest to be commented upon, 

because in those circumstances as long as there is probable cause the defendant has no 

constitutional right to refuse.

.
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defendant because he swerved, the defendant told the officer he swerved because 

he was distracted by talking to his passengers, the video of the stop was far from 

conclusive in showing intoxication and the defendant’s previous trial had ended in 

a mistrial. 

In contrast, here there was overwhelming evidence of guilt to support 

Lopez’s convictions. Deputy Lawson testified about Lopez’s admissions at the 

scene (that he was too drunk to complete the field sobriety tests) and his 

observations that Lopez smelled of alcohol and was unsteady on his feet. There 

was also testimony by the Cumminses that Lopez’s vehicle crossed the centerline 

and entered their lane at a high rate of speed before their collision, causing the 

accident which trapped Tiffany inside her vehicle and critically injured her. 

The testimony from Deputy Lawson regarding his request for a 

consensual blood draw consisted of him testifying about taking Lopez to the 

hospital for a blood draw, reading him the implied consent form and explaining 

that Lopez had a right to refuse consent to a blood draw and had a right to contact 

an attorney before submitting to the blood draw, and Lopez’s unsuccessful attempt 

to contact an attorney. 

Lopez, unlike the defendant in McCarthy, chose to testify in his own 

defense. This is important in the consideration as to whether the error was 

harmless because when a defendant testifies he thereby “cast[s] aside his cloak of 
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silence” and opens himself up to the truth-telling function of the adversarial 

process, making it permissible to use the defendant’s pre-arrest silence for 

impeachment purposes. Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 

2129, 65 L. Ed. 2d 86 (1980). At least some of the evidence regarding Lopez’s 

refusal to consent to the blood test could potentially have been admissible on 

rebuttal to impeach his testimony.8 See Coulthard v. Commonwealth, 230 S.W.3d 

572, 583 (Ky. 2007). Lopez also had the opportunity to explain his actions, which 

could lessen the impact of the refusal.9 When considering these factors, the 

violation of Lopez’s constitutional rights was harmless and does not warrant 

reversal.

II. THE TRIAL COURT DID NOT PALPABLY ERR IN ADMITTING 

EVIDENCE AND THE COMMONWEALTH DID NOT ENGAGE 

IN FLAGRANT MISCONDUCT.

Second, Lopez argues the Commonwealth introduced and repeatedly 

referenced improper evidence, misrepresented evidence, and made prejudicial 

references to evidence not in the record. He concedes each of the issues raised are 

 

8 While Lopez would not have any reason to testify that he was not asked to consent to a blood 

draw and was not taken to the hospital had Deputy Lawson not already testified about the 

circumstances of his refusal, there were other portions of his testimony that were not prompted 

by Deputy Lawson’s testimony which could have been impeached. For example, Lopez testified 

that he left the scene of the accident to get help because his cell phone battery was dying, which 

could have been impeached through Deputy Lawson’s testifying that Lopez gave the deputy his 

cell phone to contact an attorney and that the phone worked properly. 

9 Here, Lopez did not explain his refusal. Instead, he denied he was taken to the hospital and 

denied he refused to take the blood test. It is noteworthy that Lopez may have decided not to 

testify at all had his motion to suppress been granted. 
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unpreserved, except for references to his refusal to submit to a blood draw, and 

requests review for palpable error under Kentucky Rules of Criminal Procedure 

(RCr) 10.26. “When we engage in palpable error review, our ‘focus is on what 

happened and whether the defect is so manifest, fundamental and unambiguous 

that it threatens the integrity of the judicial process.’” Tackett v. Commonwealth, 

445 S.W.3d 20, 26 (Ky. 2014) (quoting Baumia v. Commonwealth, 402 S.W.3d 

530, 542 (Ky. 2013)). “[T]he required showing is probability of a different result 

or error so fundamental as to threaten a defendant’s entitlement to due process of 

law.” Baumia, 402 S.W.3d at 542 (quoting Martin v. Commonwealth, 207 S.W.3d 

1, 3 (Ky. 2006)).

Lopez’s argument contains three subparts. First, he argues the 

Commonwealth introduced improper evidence when it elicited testimony and made 

comments during closing argument regarding Lopez’s attempts to contact an 

attorney and his refusal to submit to a blood draw and commented on Lopez’s 

post-arrest silence during closing argument. Second, Lopez argues the 

Commonwealth improperly introduced and commented on his immigration status. 

Third, Lopez argues the Commonwealth’s assertion during closing argument that 

he was driving faster than fifty-five miles per hour is unsupported by any evidence. 

Before addressing Lopez’s arguments, we pause to note that Lopez 

characterizes these issues as prosecutorial misconduct. However, many of them 
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are evidentiary issues. “[D]espite the trend to classify many unpreserved issues as 

prosecutorial misconduct, such actually only occurs when a conviction is obtained 

by the knowing use of false evidence.” Stopher v. Commonwealth, 57 S.W.3d 787, 

806 (Ky. 2001) (citing Davis v. Commonwealth, 967 S.W.2d 574, 579 (Ky. 1998)).

Lopez argues the Commonwealth improperly introduced evidence of 

and commented on privileged conduct as proof of his guilt. First, because we held 

Lopez’s refusal to consent to a warrantless blood draw was admissible as evidence 

of his guilt, the Commonwealth did not commit prosecutorial misconduct when it 

made comments about this fact during closing argument. Lopez also argues that 

introduction of evidence and comments during closing argument regarding

invocation of his right to an attorney and statements during closing argument 

regarding his silence violated his right to due process.

During the Commonwealth’s cross-examination, Lopez explained 

what happened following the accident, testifying that after the collision, he began 

walking down the road to ask for help. He did not attempt to call anyone because 

his cellphone was dying. After Lopez’s arrest, Deputy Lawson read the implied 

consent form and gave Lopez an opportunity to call an attorney. Lopez turned his 

cellphone on and attempted to contact an attorney. 

To invoke the right to counsel, a “suspect [must] clearly and 

unambiguously assert[] his or her right[.]” Bradley v. Commonwealth, 327 S.W.3d 
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512, 516 (Ky. 2010) (citations omitted). It is unclear whether Lopez’s attempt to 

contact an attorney meets this standard. Assuming Lopez invoked his right to 

counsel, we apply a three-prong test to determine whether references to Lopez’s 

attempt to contact an attorney was harmless error. We weigh “(1) the extent of 

comments made by the witness, (2) whether an inference of guilt from silence [or 

right to counsel] was stressed to the jury, and (3) the extent of other evidence 

suggesting the defendant’s guilt.” Baumia, 402 S.W.3d at 539 (quoting United 

States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001)). 

First, Deputy Lawson and Lopez were both questioned regarding 

Lopez’s attempt to contact an attorney, but the comments were relatively brief. 

Second, the Commonwealth did not use Lopez’s attempt to contact an attorney as 

evidence of his guilt. The purpose of this line of questioning was to impeach 

Lopez’s testimony that he had to walk to find help because his phone was dying. 

The Commonwealth’s inference was that Lopez was guilty of leaving the scene of 

the accident because he could have called for help, not that he was guilty because 

of his attempt to invoke his right to counsel. Third, Lopez’s argument under this 

prong only references evidence of his intoxication even though this issue applies to

leaving the scene of the accident. There was clearly other evidence of Lopez’s 

intoxication. Deputy Lawson testified that Lopez said he was too drunk to perform 

field sobriety tests. As to leaving the scene of the accident Lopez does not dispute 
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that he walked away from the accident. Whether he walked away to find help or 

was guilty of the offense would be less clear without this piece of evidence. 

Considering these three factors, the second weighs heavily in favor of harmless 

error. This issue is unpreserved, and Lopez did not show that the outcome of his 

trial would have differed without this evidence. 

Next, we address Lopez’s argument that the Commonwealth 

improperly commented on his post-arrest silence during closing argument. 

Nothing in the record indicates Lopez ever invoked his right to remain silent. 

During closing argument, the Commonwealth told the jury Lopez never told law 

enforcement that the victims had their high beams on when the accident occurred

or that he consumed two beers that night. Lopez argues it was his constitutional 

right to remain silent and not provide these statements to law enforcement. The 

Commonwealth never elicited testimony regarding Lopez’s silence as an inference 

of his guilt. “In his closing remarks, a prosecutor may draw all reasonable

inferences from the evidence and propound his explanation of the evidence and 

why it supports a finding of guilt.” Tamme v. Commonwealth, 973 S.W.2d 13, 39 

(Ky. 1998) (citing Bills v. Commonwealth, 851 S.W.2d 466 (Ky. 1993)).

The Commonwealth compared Deputy Lawson’s and Lopez’s 

testimony to show the inconsistencies in Lopez’s comments to law enforcement 

immediately after the accident and his testimony at trial. The Commonwealth 
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never inferred Lopez was guilty because of his silence. Instead it inferred Lopez 

was an untrustworthy witness, which was a reasonable inference based on the

evidence presented. 

Second, Lopez argues the Commonwealth improperly introduced 

evidence of and commented on his immigration status. He asserts the “probative 

value is substantially outweighed by the danger of undue prejudice” under 

Kentucky Rules of Evidence (KRE) 403. During voir dire, the Commonwealth 

asked potential jurors whether they would hold Lopez’s immigration status against 

him. (Video Record (VR) 10/2/18 at 10:49:42.) There was no objection, and no 

potential juror answered affirmatively. Lopez’s counsel then told prospective 

jurors that he was a “citizen of Mexico” and asked if anyone would hold it against 

him. (Id. at 11:01:32.) No juror responded affirmatively. During trial, counsel 

asked several questions regarding Lopez’s understanding of English, including 

how long he had been in Knox County. (Id. at 1:29:12.) During the closing 

arguments of the penalty phase, counsel argued for leniency by telling the jury 

Lopez would most likely be deported and, therefore, a lesser sentence was 

warranted. (Id. at 7:03:07-7:05:33.) In response, the Commonwealth argued 

against the minimum sentence because the fact that he might be deported should 

not matter. (Id. at 7:06:09.) Lopez never raised any objection to such comments, 

and his brief does not show how exclusion of such comments would have yielded a 
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different result or that the error was so fundamental that his right to due process 

was violated. Baumia, 402 S.W.3d at 542 (citation omitted). He faced twenty 

years in prison. The jury recommended a total of thirteen years in prison. 

Third, Lopez argues the Commonwealth’s assertion during closing 

argument that he was driving faster than fifty-five miles per hour is unsupported by 

any evidence. “We will reverse for prosecutorial misconduct only if the 

misconduct was ‘flagrant’ or if we find all of the following to be true: (1) the 

proof of guilt is not overwhelming, (2) a contemporaneous objection was made, 

and (3) the trial court failed to cure the misconduct with a sufficient admonition.” 

Dickerson v. Commonwealth, 485 S.W.3d 310, 329 (Ky. 2016) (citing Mayo v. 

Commonwealth, 322 S.W.3d 41, 55 (Ky. 2010)).

Lopez concedes he did not object to this alleged instance of 

misconduct. Because Lopez did not contemporaneously object to the comments, 

we must determine whether the Commonwealth’s conduct was “flagrant.” “We 

use the following four-factor test to determine whether a prosecutor’s improper 

comments constitute reversible flagrant misconduct: ‘(1) whether the remarks 

tended to mislead the jury or to prejudice the accused; (2) whether they were 

isolated or extensive; (3) whether they were deliberately or accidentally placed 

before the jury; and (4) the strength of the evidence against the accused.’” 

Dickerson, 485 S.W.3d at 329 (citations omitted). 
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During closing argument, the Commonwealth argued Lopez’s vehicle 

was traveling faster than fifty-five miles per hour and faster than the victims’ 

vehicle. Tiffany was the only witness who testified regarding Lopez’s speed. She

testified she was driving between forty-five and fifty miles per hour because the 

road “was scary.” (VR 10/2/18 at 1:35:49-1:36:00.) She said Lopez’s vehicle was 

traveling “really fast.” (Id. at 1:36:55-1:37:00.) The Commonwealth argued, based 

on her testimony and the crime scene photos, that Lopez must have been traveling 

faster than the Cumminses because his vehicle pushed theirs off the road. 

If this was misconduct, it was not flagrant. First, the comments on 

Lopez’s speed were not misleading. The Commonwealth never commented on 

Lopez’s precise speed and merely argued that the evidence presented indicated 

Lopez was driving faster than Tiffany. Second, the comments were isolated as the 

Commonwealth discussed speed for less than a minute during closing argument. 

Most of the Commonwealth’s closing argument regarding the wantonness of 

Lopez’s conduct focused on his intoxication instead of his speed. Third, the 

Commonwealth deliberately made the comments to the jury. Fourth, there was 

other evidence that Lopez acted wantonly in injuring Tiffany and Chad because he 

was driving while intoxicated and crossed the centerline. Furthermore, the 

Commonwealth may make reasonable inferences from the evidence during closing 
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argument. Tamme, 973 S.W.2d at 39. Considering each of the four factors, if the 

Commonwealth engaged in misconduct, it was not flagrant. 

III. LOPEZ WAS NOT DENIED HIS RIGHT TO A UNANIMOUS 

VERDICT.

Third, Lopez argues the jury instructions on first-degree assault and

second-degree assault did not ensure unanimity because the instructions failed to 

identify Lopez’s wanton conduct. He asserts the instructions should have specified

whether Lopez acted wantonly by driving while intoxicated, speeding, or driving 

on the wrong side of the road. Lopez concedes this argument is unpreserved and 

requests review for palpable error under RCr 10.26.

The Supreme Court of Kentucky has held that describing specific 

theories of wanton conduct in jury instructions is unnecessary. Cox v. 

Commonwealth, 553 S.W.3d 808, 812 (Ky. 2018).

A “combination” instruction permitting a conviction of 

the same offense under either of multiple alternative 

theories does not deprive a defendant of his right to a 

unanimous verdict, so long as there is evidence to 

support a conviction under either theory. “It is not 

necessary that a jury, in order to find a verdict should 

concur in a single view of the transaction disclosed by 

the evidence. If the conclusion may be justified upon 

either of two interpretations of the evidence, the verdict 

cannot be impeached by showing that a part of the jury 

proceeded upon one interpretation and part upon the 

other . . . .”
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Id. (footnotes omitted). Here, the trial court instructed the jury on first-degree 

assault, second-degree assault, and fourth-degree assault. Each of these 

instructions required a finding that Lopez acted wantonly. The Commonwealth 

presented evidence to support three theories of wantonness: (1) that Lopez was 

intoxicated, (2) crossed the centerline of the road, and (3) that his vehicle was 

traveling faster than the victims’ vehicle. As such, because there was evidence to 

support each of the theories of wantonness, Lopez was not deprived of his right to 

a unanimous verdict.

IV. THE JURY INSTRUCTIONS DID NOT CONTAIN A DOUBLE 

JEOPARDY VIOLATION. 

Finally, Lopez argues the instructions for assault and driving under 

the influence resulted in a double jeopardy violation. He asserts that the 

instructions allowed the jury to find him guilty of two different crimes for the same 

act because the assault instruction merely asked the jury to find that the same 

conduct manifested extreme indifference to the value of human life. Lopez 

concedes this argument is unpreserved but argues “the constitutional protection 

against double jeopardy is not waived by failing to object at the trial level.” Little 

v. Commonwealth, 422 S.W.3d 238, 248 (Ky. 2013) (citation omitted). 

“[T]he DUI statute does not preclude a conviction for First-Degree 

Assault.” Justice v. Commonwealth, 987 S.W.2d 306, 312 (Ky. 1998) (citation 

omitted). Both statutes require elements the other does not. “The DUI statute 
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requires proof that the defendant was in physical control of a motor vehicle,” while 

first-degree assault does not. “The First-Degree Assault statute does not require 

any proof of alcohol or intoxicate consumption,” and “requires proof that the 

defendant caused serious physical injury either intentionally or wantonly. KRS 

508.010(1). The DUI statute requires no proof of injury to another or proof of the 

defendant’s state of mind.” Id. As such, no double jeopardy violation occurred. 

CONCLUSION

For the foregoing reasons, we affirm the judgment of the Knox Circuit 

Court. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

Steven Nathan Goens

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Daniel J. Cameron

Attorney General of Kentucky

Mark D. Barry

Assistant Attorney General

Frankfort, Kentucky