Request By:
Hon. Eric D. Hall
Assistant County Attorney
Floyd County Courthouse
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
You have requested an opinion from this office regarding an interpretation of KRS 189.520(6) and OAG 73-243. You have presented the following facts:
A Kentucky State Police Officer presented to a local hospital a person suspected of driving under the influence of intoxicants. While at the hospital, the arresting officer requested blood be drawn and analyzed from the suspect. The suspect refused to submit to the blood test and without his consent the hospital denied the officer's request to draw and analyze the blood.
You have asked: (1) whether KRS 189.520(6) requires the suspect's consent before the drawing of blood for the purpose of testing for the presence of intoxicants; and (2) whether KRS 189.520(6) conflicts with OAG 73-243.
KRS 189.520(6) provides:
No person may be compelled to submit to any test specified in subsection (4) of this section, but his refusal to submit to such test shall result in revocation of his license as provided in KRS 186.565(3).
KRS 189.520(4) refers, of course, to a chemical analysis of blood, urine, breath or other bodily substance. Subsection (6) of the statute is unequivocal and unambiguous: no person may be compelled to submit to a chemical test for the detection of alcohol in his blood. KRS 189.520 would be applicable to the taking of chemical tests for use as evidence in a prosecution for operating a motor vehicle while under the influence of intoxicating beverages. If KRS 189.520 is applicable, then consent to the taking of the test is required. Where KRS 189.520 is not applicable, then under
Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1968), consent is required under the federal constitution unless there exists reasonable cause for belief that the suspect is intoxicated. This point was addressed in
Washburn v. Commonwealth, Ky., 433 S.W.2d 859, 860 (1968):
If KRS 189.520, which relates to taking of alcohol blood-content tests for use as evidence in the prosecution of a person for operating a motor vehicle on a highway while under the influence of intoxicating liquor, is applicable to the taking of such a test for use in a prosecution, as here, for manslaughter, it is reasonably clear that consent of Washburn to the taking of the test was required. If KRS 189.520 is not applicable, then under the precepts laid down in
Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908, consent of Washburn to the taking of the test still was required to avoid the constitutional ban against unreasonable search and seizure, unless there was reasonble cause for belief by the officer taking the blood, before it was taken, that the defendant was intoxicated.
In OAG 73-243, this Office cited
Schmerber v. State of California, supra, for the rule that if an officer has probable cause to arrest for a violation of KRS 189.520, based upon the physical symptoms exhibited by the suspect, then the accused can be required to submit to a chemical test. This interpretation of
Schmerber v. State of California, supra, does not conflict with KRS 189.520(6) or Kentucky case law but must be considered in conjunction with both.
We trust this information has satisfactorily answered your inquiry. If you have additional questions, please contact us.