Request By:
Mr. Richard Gidcumb
Division of Water Enforcement
P.O. Box 585
Calvert City, Kentucky 42029
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert W. Hensley, Assistant Attorney General
In your letter to this office you ask whether an officer of the Division of Water Enforcement of the Commonwealth of Kentucky has the authority to demand that a blood sample be taken from a decedent involved in an accident for the purposes of examination for blood/ alcohol or drug content. You also ask what recourse is to be taken if the coroner refuses to do as requested by the officer; and we understand by this that you mean what recourse is to be taken if the coroner refuses to take a blood sample when an officer of the Division of Water Enforcement requests that a blood sample be taken from a decedent. As this office understands from our recent telephone conversation with you, you and other officers in the division are interested, at times, in determining the blood/ alcohol or drug content of drowning victims in order to determine if either alcohol or drugs was the contributing reason for the drowning.
We note that KRS Chapter 235, Boats and Boating provides in KRS 235.310:
The commissioner of vehicle regulation shall designate officers and employes of the bureau to enforce the provisions of this chapter and such officers when duly authorized by the commissioner shall have the general powers of a peace officer for the enforcement of other offenses against the Commonwealth. In enforcing the provisions of this chapter such officers and all other peace officers of the Commonwealth and its subdivisions shall have the right to enter upon all waters of this state, either private or public, for the purpose of inspecting certificate of registration documents. They may arrest on sight, without warrant, any person detected by them in the act of violating any of the provisions of this chapter. They shall have the same rights as sheriffs to require aid in arresting, with or without process, any person found by them violating any of the provisions of this chapter or other offenses against the Commonwealth.
We also that KRS 235.240 provides:
(1) No person shall operate any motorboat or vessel, or manipulate any water skis, surfboard or similar device in a reckless or negligent manner so as to endanger the life or property of any person.
(2) No person shall operate any motorboat or vessel, or manipulate any water skis, surfboard, or similar device while intoxicated on under the influence of any narcotic drug, barbiturate or marijuana.
KRS 446.010(24) provides that "'Peace officer' includes sheriffs, constables, coroners, jailers, marshalls, policemen and other persons with similar authority to make arrests. " In
Woosley v. Central Uniform Rental, Ky., 463 S.W.2d 345 (1971) a sheriff arrived at the scene of a one car accident and found the driver deceased. Nevertheless the sheriff, as well as the coroner, called for a blood sample from the deceased Mr. Woosley. This was a civil case and the employer, Central Uniform Rental, absolved itself from liability for workman's compensation benefits to Mr. Woosley's widow and children because the blood sample revealed that Mr. Woosley was intoxicated at the time of the the accident. On appeal the widow sought a ruling that the blood sample was inadmissible because under the implied consent law, KRS 186.565, Mr. Woosley could not have given his consent to the sheriff (i.e. the peace officer) for the taking of the blood sample because when the sheriff arrived at the scene Mr. Woosley was already dead. Note that this decision in no way discusses the authority of the coroner to have called for the blood sample though the facts reveal that the coroner, as well as the sheriff, called for the sample. The Court of Appeals (now the Supreme Court) ruled that even though Mr. Woosley was deceased when the sheriff arrived, the legislature, in enacting KRS 186.565: ". . . did not intend to condition the taking of a blood sample from a deceased person upon his having been placed under arrest before death." Ky., 463 S.W.2d at 349.
Since you, as well as a sheriff, are "peace officers", i.e. law enforcement officers in popular parlance, we originally thought that Woosley contained some authority for you as a peace officer to take a blood sample from a drowning victim. Note the following language at Ky. 463 S.W.2d 349 discussing the analogous situation of a law enforcement officer taking a blood sample from the body of a person killed in an automobile accident;
On the other hand, it seems to us that there are other valid reasons for securing the information made possible by the taking of a blood sample from the body of a person killed in an automobile accident. There can be no doubt that one of the major concerns and most difficult problems of law enforcement is the safety of those who use the public highways of the state. To that end, police agencies not only may but should investigate the causes of accidents on the highways within their jurisdiction. Surely such information is necessary to the development of any successful program of accident prevention. Therefore, even though a suspected driver be dead and beyond the pale of prosecution, it remains within the legitimate scope of any investigating law enforcement officer's inquiry to seek out the cause of death.
However, we are constrained towards the view that the above quote is inextricably tied in with the implied consent statute since in fact, the above passage ends with: "And so, despite the infelicitous phraseology of KRS 186.565(1) and (2) when read in tandem, we are of the opinion that the legislature did not intend to condition the taking of a blood sample from a deceased person upon his having been placed under arrest before death."
Thus, in our opinion the Woosley decision, though permitting the sheriff, that is the peace officer or law enforcement officer, to take a blood sample from the deceased, that right is based upon the provisions of KRS 186.565, Kentucky's implied consent law. The problem, as we see it, is that though there is a statute prohibiting the operation of any motorboat or vessel or the manipulation of water skis, surfboard or similar device while intoxicated, KRS 235.240, which is a similar statute to the one prohibiting the operation of a motor vehicle while intoxicated, KRS 189.520, the legislature has enacted an implied consent statute, upon which the Woosley decision was based, applicable only to motor vehicles but not to motorboats, water skis, surfboards or other similar devices. Thus this implied consent statute, KRS 186.565, starts off: "(1) Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical test. . . ." Thus the statute which was construed in Woosley to permit a law enforcement officer to take a blood sample from a deceased for purposes of determining intoxication appears to be a right of an officer only as to those who operate a motor vehicle. This statute, KRS 186.565, does not extend this right to those who operate a motorboat or vessel or manipulate water skis, surfboards or similar devices. Therefore absent legislation of an implied consent law nature applicable to KRS 235.240 we are of the opinion that a law enforcement officer of the Division of Water Enforcement could not, except as discussed below, call for, demand, authorize or take a blood sample from a drowning victim for the purposes of determining blood/ alcohol or drug content.
Concerning your question on what recourse is to be taken if the coroner refuses to have a blood sample taken from a drowning victim let's consider the applicable statutes.
Subsection (1) of KRS 72.020 provides: "Any person finding or having in his possession the body of any person slain, drowned or otherwise suddenly killed, or whose death occurred from unnatural cause without the attendance of a physician, shall immediately notify the coroner, and shall not remove the body nor anything therefrom until directed to do so by the coroner or other authorized person." Next KRS 72.030 provides:
The coroner, upon the request by any responsible citizen or if he has reason to believe the death of a human being within his county was caused by crime, suicide, drowning or other sudden cause, or death occurs in a correctional facility operated by state or local government in his county and such death appears to have been caused by crime, suicide, drowning or other sudden cause, or death occurs without the attendance of a physician within a period of thirty-six hours prior to death, shall investigate and hold an inquest in the county where death occurs. If death results from violence or accident within one hundred eighty days from the onset, the coroner shall hold an inquest the same as if death occurred immediately.
Thus, under the law you, as well as other officers in the Division of Water Enforcement, must notify the coroner whenever you have in your possession the body of a drowning victim. Then upon your request as a responsible citizen or at the option of the coroner if the coroner believes the death was caused by drowning the coroner: ". . . shall investigate and hold an inquest in the county where death occurs." However, simply because you or another officer of the Division of Water Enforcement has a drowning victim and notifies the coroner, such action does not mean that chemical tests will be taken of the victim to determine its blood/ alcohol or drug content as an inquest does not necessarily require chemical tests of the fluids of the decedent. See 13 Am. Jur. 2d §§ 7-13. Thus the coroner, under the coroner's inquest jurisdiction, may or may not cause chemical tests to be taken of the bodily fluids of the decedent. See KRS 72.070. Also see OAG 43,145 (1959) attached. Thus, if in connection with such inquest an autopsy or post-mortem examination is not held, or you and other officers of the Division of Water Enforcement are advised by the coroner that such post-mortem examination or autopsy will not be held, the only recourse examination or autopsy will not be held, the only recourse available to you, in the opinion of this office, is to obtain the written consent of the party who could bring a damage suit for an unauthorized or illegal autopsy. See this office's previous opinion so stating, OAG 72-151, at p. 4, first full paragraph.
We are also including as per your request copies of