Request By:
Hon. Ronald M. Sullivan
Holbrook, Wible, Sullivan
& Helmers, P.S.C.
Attorneys at Law
100 St. Ann Building
P.O. Box 727
Owensboro, KY 42302-0727
Opinion
Opinion By: David L. Armstrong, Attorney General; Joseph R. Johnson, Assistant Attorney General
In your letter to this office you requested that we reconsider OAG 84-379 wherein it was stated that pursuant to KRS 503.040, it is proper for nursing personnel in a public hospital to take a blood sample at the direction of the police officer even though the patient refuses to give his consent to the taking of the blood sample.
We are of the opinion that OAG 84-379 was in error in view of KRS 186.565 which provides that the driver's consent to the taking of a blood alcohol sample may be withdrawn by the driver's refusing to consent to the taking of the blood alcohol sample. In the event the driver withdraws his consent, the police officer cannot order a blood sample be taken. The original opinion did not consider the legal ramifications and implications of KRS 186.565. OAG 84-379 is modified to the above extent.
Having stated the foregoing, we do note that KRS 186.565(1) provides for implied consent when the person is under arrest. Such consent can be withdrawn under KRS 186.565(3). Also KRS 186.565(2) states as follows:
"Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal is deemed not to have withdrawn the consent provided in subsection (1) of this section and the test may be given."