RENDERED: FEBRUARY 3, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 2021

- CA

- 1048

- DG

TYLER STORY APPELLANT

ON DISCRETIONARY REVIEW FROM CAMPBELL CIRCUIT COURT

HONORABLE DANIEL J. ZALLA , JUDGE ACTION NO . 21

- XX

- 00001 v.

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, DIXON, AND TAYLOR , JUDGES

. CETRULO , JUDGE: Appellant Tyler Story (“Story”) entered a conditional plea in
the Campbell D istrict C ourt to driving under the influence, reserving the right to appeal the 1) denial of his motion for return of his blood sample ; and 2) denial of his motion to suppress the resulting alcohol concentration blood test results. The Campbell Circuit Court

– in an o rder entered August 16, 2021

– up held the denials- 2

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and this Court granted discretionary review. After review, w e affirm th e o pinion of the circuit court affirming the judgment of the district court

. I. BACKGROUND In June 2019, the Bellevue Police arrested Story for operating a motor
vehicle under the influence of alcohol in violation of KRS 1 189A.010 (“DUI”). 2 After arriving at the jail, the p olice gave Story a breathalyzer test

. Then, Story requested an independent blood test. He was taken to the hospital and

– fo r reasons unclear in the record

– th e hospital drew his blood but did not test it

. T he hospital gave the blood sample to the Bellevue Police after it was drawn

.

In November 2019, the Campbell District Court orally granted Story’s motion to suppress the breathalyzer results due to the failure by the administering police officer to follow st andard operating procedure

. Immediately thereafter, t he Commonwealth expressed its intent to test Story’s blood sample for the presence
of alcohol . Story objected and challenged the permissibility of the Commonwealth

to test the blood because ownership o f the blood was in question . At th at time, a ll parties agreed that the blood was drawn at Story’s request . The court did not resolve the issue immediately, instead requesting more information about the

1 Kentucky Revised Statute.

2 Story’s June 2019 arrest citation reads, in part, “[Story] did not satisfy pre exit tests. [Story] did not satisfy [field sobriety tests]. [Story] stated he had been at [Bar 1] in Bellevue as well as [Bar 2] in Dayton and that he consumed multiple beers and two shots of Jage r meister. [Story] also admitted that he was intoxicated and should not be operating a vehicle.”- 3

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bloo d. S pecifically, the district court wanted to know if the blood sample was being s tored properly and if the presence of alcohol was still discernable ( due to
the time elapsed since being drawn )

. The next day, Story filed a motion for the
court to order the Bellevue Police to release the blood sample to Story. In December 2019, the district court

– calling this a case of first impression due to the unique sequence of facts

– denied Story’s motion because the blood was “potential evidence” and needed to remain in the possession of the Bellevue Police.

In February 2020, Story filed a petition for a writ of prohibition asking the circuit court to prevent the signing of a sear ch warrant that allowed the
Commonwealth to test the blood. In June 2020 , the circuit court den ied the writ. Thereafter, the Commonwealth obtained a search warrant 3 to test the blood in a

state

- run crime laboratory. In November 2020, Story filed a moti on to suppress the
results of the blood test

. The district court denied th at motion, finding the cited precedent too distinct to be helpful or applicable . Story entered a conditional plea
to the DUI , reserving his right to appeal . The circuit court affirmed both 1) the
denial of the district court of Story’s motion to release the blood sample to Story , and 2) the denial of the district court of Story’s motion to suppress the Commonwealth’s subsequent blood test results. This Cou rt granted discretionary
review.

3 On appeal, Story does not challenge the validity of the search warrant.- 4

- II. ANALYSIS
A. Denial of Motion to R elease Blood E vidence Our analysis requires the i nterpretation of Kentucky statutes , which is a question of law that we review de novo . Hauber v. Hauber , 600 S.W.3d 204, 207 (Ky. 2020) (citation omitted). As such, we afford no deference to the statutory interpretations of lower courts. Id . (citation omitted).

On appeal, Story argues that the denial by the district court of his
motion to release the bloo d sample was a violation of his statutory right to an independent blood test . Under our statutory scheme, an individual arrested for
DUI

– who has submitted to the initial test(s) requested by the state

– is allowed to request an independent blood test pursuant to KRS 189A.103(7)

. 4 Here, the facts are uncontroverted. Story consented to all the tests requested by the police officer. Story then requested an additional blood test. The police officer drove Story to the hospital for the blood draw. The hospital drew the blood and gave it to the police. The police correctly stored the blood for possible future testing. We find no statutory violation because the police officer granted Story’s request and assisted Story in ob taining a blood sample. The police are required to make a “reasonable

4 In 2019, at the time of Story’s arrest, KRS 189A.103(7) read, in pe rtinent part, “ After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his or her own choosing adminis ter a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time.”- 5

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effort to facilitate additional testing” for the driver. Hardin v. Commonwealth , 491 S.W.3d 514, 519 (Ky. App. 2016). It is not the duty of the police officer to test the blood, only to help in the administra tion of the test ( i.e. , blood draw). The police officer did not fail to perform his statutory duty.

Story argues the blood sample was only intended for comparison purposes and should have been released after there was nothing to which it could
be compared

. Story refers this Court to Commonwealth v. Minix , 3 S.W.3d 721 (Ky. 1999) , and Commonwealth v. Long , 118 S.W.3d 178, 181 (Ky. App. 2003).
Both Minix and Long found that an individual arrested for DUI may obtain an independent test for compariso n purposes
. 5 However, both Minix and Long are distinguishable from the facts here.

In Minix , the driver submit ted to two preliminary breath tests, but the
instrument failed both times. Minix , 3 S.W.3d at 722. Then, after transported to the jail, the driver refused a request to take an additional breathalyzer test. Id.

at 723. Our Supreme Court determined that “ [s]inc e the Commonwealth did not

5 “ The purpose of allowing an accused an independent test is to obtain another result to compare with or controvert the police officer’s test.

. . . This is analogous to obtaining a second opinion of a medical diagnosis. There can be no second opinion unles s and until a first opinion has been rendered.

. . . We can find no indication that the Legislature intended to provide a driver with the right to receive independent testing in the absence of an official test which could be used for prosecution purposes. ” Minix , 3 S.W.3d at 724. “ Under our statutory scheme

. . . , an individual arrested for driving under the influence who has submitted to the initial test administered by the state is allowed an independent test to obtain another result to compare with o r controvert the police officer’s test.” Long , 118 S.W.3d at 181 (internal quotation mark s omitted) (citing to i d .).- 6

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obtain any test result that determined alcohol concentration, an independent test
was not warranted. ” Id. at 724. The driver was denied a blood test because he did not complete all tests requested by the police

. Id. Story, to the contrary, did complete all the tests requested by the police.

In Long , the driver requested an independent blood test after submitting to the officer’s tests. Long , 118 S.W.3d at 180. The police officer informed the driver that if she wished to have an independent blood test , she needed to have the funds with her to pay f or the test. Id . The driver asked the police officer i f she could call her roommate to bring the money to the hospital, but the police officer denied her request. Id . at 180

- 81. This Court ruled that the police officer denied the driver “her right to o btain an independent test because of a failure to make a reasonable effort to accommodate her right.” Id . at 183. Unlike
in Long , here the police officer assisted Story in obt aining a blood draw. Minix
and Long acknowledge the statutory obligation of th e police to assist a driver in getting a blood draw; here, the Bellevue Police met this obligation.

Next, t he Commonwealth argues Story abandoned the blood sample by not asserting his right of possession within a reasonable time (five months)

. 6 We do not agree. “What constitutes abandoned property has to be determined on a

6 The abandonment argument appears in the Commonwealth’s appellate brief and the circuit court’s written order, but f rom our review, the district court found the blood to be evidence because the police possessed it, not because it was abandoned

.- 7

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case
- by

- case basis. Therefore, the act of abandonment itself turns to a large degree
upon the possessor’s state of mind.” Watkins v. Commonwealth , 307 S.W.3d 628, 630 (Ky. 2010 ) (citation omitted). The Commonwealth cites to Watkins and
Marino v. Commonwealth , 488 S.W.3d 621 (Ky. App. 2016), but both cases are factually distinguishable from this case.

First, in Watkins , the defendant fled a car

– leaving incriminating
evidence in the trunk

– after crashing the vehicle during a police car chase.
Watkins , 307 S.W.3d at 629. “ Leaving property behind, when in flight from apprehension by law enforcement, must be considered in and of itself an abandonment of that property.” Id . at 629

. Second, in Marino , a detective gave the defendant water in a Styrofoam cup, which he drank out of and left in the jail library; the detective took the cup and tested the saliva in the cup for DNA, matching it to a previous sexual assault. Marino , 488 S.W.3d at 623. “ When a person leaves his garbage in a location where a third pa rty ( i.e. , a stranger) will collect it, the person who left the garbage has no reasonable expectation of privacy[.]” Id . at 624 (internal quotation mark s omitted).

Here, unlike in Watkins and Marino , Story did not intend to abandon his blood sample by leaving it with the p olice. To the contrary, leaving the blood with the police in fact preserved it for possible future use in legal proceedings; if Story had taken possession of the blood, chain of custody concerns could hav e- 8

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resulted. Story did request the blood sample back within a reasonable time

. Story did not know if he wanted to test the blood until after the ruling on the admissibility of the breathalyzer results. Story orally requested the return of the sample at the breathalyzer suppression hearing , and he filed a written motion the day after the breathalyzer suppression hearing

. The blood was not abandoned.

The blood draw was not testable because it was abandoned; it was
testable because it was evidence. In 2 019, the year of Story’s blood draw, KRS 189A.105 stated in pertinent part, “if the person refuses to submit to [breath, blood or urine tests], the fact of this refusal may be used against him in court as evidence

. . . if a test is taken , the results of t he test may be used against him in court as evidence

. . . . ” KRS 189A.105(2)(a)1

. and 2

. (emphasis added) . Stated another way, a driver has the choice whether to consent to a breathalyzer test or blood draw, but if he or she chooses to consent to a test, those results are then evidence. 7 Evidence is not for one side or the other, but it is an objective aide for finding the
truth. Fisher v. Duckworth , 738 S.W.2d 810, 813 (Ky. 1987) (“The rules of

7 “ 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 gr ounds to believe the motorist is violating Kentucky’s DUI statute[.]” Commonwealth v. McCarthy , 628 S.W.3d 18, 28 (Ky. 2021) (citing KRS 189A.010(1); Commonwealth v. Duncan , 483 S.W.3d 353, 355

- 56 (Ky. 2015); KRS 189A.103(1)). “If the motorist affirmativ ely refuses consent

– declines to cooperate with a test

– he faces certain statutorily

- defined consequences.” Id . (referring to KRS 189A.103).- 9

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evidence have evolved carefully and painstakingly ov er hundreds of years as the best system for arriving at the truth. They bring to the law its objectivity.”)

.

T he district court’s application of the law

– in the denial of the motion to release the blood sample

– is consistent with our understanding of Ken tucky
law. Story’s statutory rights were not violated because the police assisted him in
ob taining an independent blood sample on the night he was arrested. T he blood sample was susceptible to a search warrant, not because it was abandoned, but
because i t became evidence after Story requested the draw. Therefore, we affirm
the order of the circuit court affirming the denial of the district court of Story’s motion to release the blood sample.

B. Denial of Motion to S uppress T est R esults The standard of review of a pretrial motion to suppress is twofold. First, we review the trial court ’ s findings of fact under a clearly erroneous standard. Under this standard, the trial court ’ s findings of fact will be conclusive if they are supported b y substantial evidence. We then conduct a de novo review of the trial court ’ s application of the law to the facts to determine whether its decision is correct as a matter of law. Haney v. Commonwealth , 653 S.W.3d 559, 564 (Ky. 2022) (citing Whitlow v. Commonwealth , 575 S.W.3d 663, 668 (Ky. 2019) )

. Here , the facts of the case are
uncontested and the record on appeal includes no written findings of fact;
therefore , our review will focus on the applicati on of the law.- 10

- On appeal, Story argues that the blood test results should have been suppressed because the results were obtained pursuant to a search warrant which should not have been issued because the driving incident did not involve death or physical i njury. Story supports this argument with Combs v. Commonwealth , 965 S.W.2d 161 (Ky. 1998) . H owever, th is interpretation of Combs is incorrect.
Combs deals specifically with implied consent and the supposition that police may not get a search warrant for a blood test if the driver refuses the blood draw, and the situation did not involve death or physical injury. Combs , 965 S.W.2d at 164 (“ The plain l anguage of KRS 189A.103 and KRS 189A.105 prohibits compelled body searches of a DUI suspect following a refusal to take a blood test, unless death or physical injury are involved.” ).

Story argues his fact pattern is consistent with Combs because both
def endants opposed the blood test . Story is looking at the verbiage of the holding,
but not the intent of the Court. The Combs Court was discussing body searches (a blood draw) and when it is permissible to take blood from someone without

consent ; Story arg ued Combs was about a forced test , but Combs was actually discussing a forced blood draw

. Commonwealth v. Lopez , 3 S.W.3d 351, 353 (Ky. 1999) , abrogated on procedural grounds by Commonwealth v. Carman , 455 S.W.3d 916 (Ky. 2015 ) ( e mphasis added) ( “ Combs is limited to those situations where a search warrant was necessary to obtain blood evidence in order to- 11

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prosecute a DUI case not involving injury or death . . . . [ T he Combs holding] does not control a situation where a defendant expressly consents to a blood alcohol test in compliance with KRS 189A.103.” )

. Here, unlike in Combs , Story expressly consented, indeed requested , the blood draw; therefore, the Combs precedent is
d istinct, distinguishable , and not a factor in our review.

Story consented to the blood draw. The Commonwealth obtained a
valid search warrant to test the blood evidence. We find no err or in the district
court’s application of the law.
CONCLUSION

Therefore, we AFFIRM the o pinion of the Campbell Circuit Court affirming the j udgment of the Campbell District Court

.

TAYLOR, JUDGE , CONCURS. DIXON, JUDGE , CONCURS AND FILES SEPARATE OPINION

. DIXON, JUDGE , CONCURRING: While I agree with the majority analysis and conclusion, I write separately merely to address one issue more fully. The district court herein required the Commonwealth to obtain a search warrant before testing Story’s blood sample. Oddly, t he institution drawing the sample failed to test it and instead gave the sample to the arresting officer. When the Commonwealth sought to test this evidence

– evidence that had remained in its possession since the
blood draw

– the district court’s stated reason for requiring the search warrant was- 12

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that it sought to determine whether the sample had been stored properly and whether the presence of alcohol would still be present. I believe this was error. As the majority correctly notes, neither Story nor t he Commonwealth raised the issue of the necessity of the warrant. 8

My concern is that the absence of addressing the issue of the necessity of a search warrant could lead to an argument that a search warrant is required before any evidence within the Commonwealth’s possession is tested. What the district court failed to discern is that the information it sought to be established prior to testing is , rather, information required in determining whether such evidence may be introduced into evidence at tr ial. Stated another way, the district court put the cart before the horse. The reliability of any evidence offered must be established at the time the party seeks its admission as evidence, not before the party in control of the evidence determines its r elevance. 9 Holding otherwise could
lead defendants to demand search warrants for all sorts of evidence within the Commonwealth’s possession, such as drugs, fingerprints, and rape kits, be obtained prior to testing . And if a search warrant had not been o btained prior to

8 Of course, Story had already lost his petition for prohibition wherein he sought to prevent the search warrant being issued in order to prevent the sample’s testing. Story really has no reason to object to the necessity of the warrant in the first place.

9 Obviously, had this sample, once tested, revealed Story’s blood alcohol level was below the legal limit the Commonwealth had an obligation to provide Story with this information had it continued the prosecution of the charge. Brady v. Maryland , 373 U.S. 83, 86, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215 (1963)

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testing how many arguments would be made for suppression of this evidence? Let me be clear, I do not believe that the majority O pinion upholds the necessity of search warrants prior to testing. I merely fear that our failure to make this point clear could lead to the misapplication of the holding of this O pinion.

BRIEF FOR APPELLANT:
Joshua M. McIntosh Covington, Kentucky BRIEF FOR APPELLEE:
Daniel Cameron Attorney General of Kentucky Mark D. Barry Assistant Attorney General Frankfort, Kentucky