Request By:
Honorable George M. McClure, III
County Attorney
P.O. Box 214, Courthouse
Danville, Kentucky 40422
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to our office in which you you ask whether the Kentucky Implied Consent Statute, KRS 186.565, precludes a judge from issuing a search warrant after a suspected drunk driver has refused to submit to a test to determine the presence of substances which may impair one's driving ability.
We are of the opinion that KRS 186.565 does not prevent a judge from issuing a search warrant, based upon probable cause, to obtain bodily fluids from an individual suspected of driving while intoxicated. We believe that the authority to issue search warrants to conduct such tests is predicated on a legal theory which is entirely independent of the Implied Consent Statute.
The question arises because of the wording of the Implied Consent Statute, KRS 186.565(3), which states, in pertinent part, as follows:
If the person . . . refuses, none shall be given , but the transportation cabinet, upon the receipt of a sworn report of the law enforcement officer . . . shall immediately serve notice . . . and show cause why his license to operate a motor vehicle . . . within this state should not be revoked. [Emphasis added].
We note that the Kentucky appellate courts have not rendered a published decision which directly answers the question. We believe it relevant to provide a brief discussion of the law of search and seizure as most recently enunciated by the courts. Legal scholars divide the law of search and seizure into two parts, nonconsensual searches and consensual searches; consensual searches can be accomplished through either express consent or implied consent.
The question presented is primarily one of statutory construction rather than one of constitutional limitation. In the United States Supreme Court case of Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the United States Supreme Court held that even a warrantless seizure of blood samples, incident to a lawful arrest, is constitutional under the fourth amendment if probable cause and exigent circumstances exist. Hence, the issue is whether there is any violation of Kentucky statutory law when a judge issues a search warrant to obtain blood samples from a person suspected of driving under the influence of intoxicants after he has refused to submit to a test to determine the presence of intoxicating substances.
KRS 446.080 requires courts to give a liberal interpretation of the Kentucky Revised Statutes in order to carry out the intention of the legislature.
(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derrogation of the common law are to be strictly construed shall not apply to the statutes of this state.
The courts have long held that a liberal interpretation of a statute is proper when made to carry out the intention of the legislature. In Newbolt v. Board of Ed. of Berea Independent School Dist., Ky., 409 S.W.2d 513 (1966), the court held, ". . . the courts will consider the purpose which the statute is intended to accomplish . . . . And the courts will not give a strict literal construction to a statute if it would lead to an unreasonable or absurd conclusion." Id., at 514. See also Kentucky Mountain Coal Company v. Witt, Ky., 358 S.W.2d 517, 518 (1962). In Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974), the court held, "the policy and purpose of the statute will be considered in determining the meaning of the words used." Id. at 491.
Because the intent of the legislature is of paramount importance in answering your question, we do not believe that by enacting the Implied Consent Statute, the legislature has clearly manifested an intent to abrogate the long-established court procedure of obtaining evidence by virtue of a search warrant duly issued by a judge. In OAG 89-99, we stated that the purpose of the statute is "to provide a readily available legal mechanism by which law enforcement officers can quickly detect motorists who drive under the influence of intoxicating substances." The purpose of the statute would not be served by prohibiting seizure and testing of bodily fluids pursuant to a search warrant. Furthermore, we believe that such a prohibition would frustrate the intent of the statute.
To illustrate the absurdity of interpreting the statute as a prohibition against the issuance of search warrants, if law enforcement officers were aware that a potential refusal to submit to a test under the Implied Consent Law might forever deprive them of crucial evidence, they might routinely seek to obtain a search warrant without even requesting the suspected driver to submit to a test for intoxicating substances. In such a situation, the Implied Consent Statute would not apply because the procedure used would entirely circumvent the Implied Consent Statute. The statute does not forbid alternative methods of detection from being used. We do not think that the Kentucky courts would adopt such absurd reasoning.
We believe that the placement of the words, "none shall be given" within the Implied Consent Statute provides some guidance as to the legislative intent. It is apparent that the ambit of the relevant statute, KRS 186.565, relates to the area of law of searches and seizures which are consensual in nature and does not mention nonconsensual searches. For this reason, we believe that the location of the language in question suggests that the wording is limited to consensual searches, rather than nonconsensual searches.
We believe that the rationale of the Supreme Court of Wisconsin in State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427 (1987), provides the best guidance in resolving the question. In Zielke , the court held, in pertinent part, as follows:
. . . we hold that if evidence is otherwise constitutionally obtained, there is nothing in the implied consent law which renders it inadmissible in a subsequent criminal prosecution. Chemical test evidence may be otherwise legally obtained if it is seized pursuant to a valid search warrant . . . .
Id. N.W.2d at 433. We believe it important to also point out that a legislative attempt to limit the inherent powers of the judiciary might be construed as a violation of § 28 of the Kentucky Constitution. Kentucky has no general statute relating to the issuance of search warrants. The courts derive this power from the common law and from the state and federal constitutions. Although a court can accept a legislative limitation, it is not bound to do so.
In Collins v. State, Dept. of Justice, Mont., 755 P.2d 1373 (1988), the court held that the refusal to submit to a blood alcohol test did not preclude a peace officer from obtaining a valid search warrant to obtain a blood sample from the suspect. Cases which generally support our conclusion include Tyler v. Com'r of Public Safety, Minn., 368 N.W.2d 275 (1985); State v. Abrahamson, N.D., 328 N.W.2d 213 (1982); State v. Hartman, S.D., 256 N.W.2d 131 (1977); and People v. Cords, Mich., 254 N.W.2d 911 (1977).
As noted above, Kentucky case law makes it clear that a court will not strictly construe a statute if it would lead to an absurd or an unreasonable result. The court in Zielke also stated:
Such a holding would lead to an absurd and unreasonable result. This court has repeatedly stated that it must interpret statutes to avoid absurd or unreasonable results . . .
In light of the clearly articulated intent of the legislature in enacting [the Implied Consent Statute], and in the absence of explicit legislative direction to suppress chemical test evidence for noncompliance with [the Implied Consent Statute], it would be absurd to infer that the legislature intended that critical evidence . . . must be excluded for failure to comply with the procedures set forth . . .
To so hold would give greater rights to an alleged drunk driver under the fourth amendment than those afforded any other criminal defendant.
Id. N.W.2d at 432. We are cognizant of the fact that various courts have held that once a suspected driver has refused to submit to a test to determine the presence of intoxicating substances, a search warrant cannot be lawfully obtained. See Collins v. Superior Court, 158 Ariz. 145, 761 P.2d 1049 (1988); Pena v. State, Alaska, 684 P.2d 864, reversing 664 P.2d 169 (1984); State v. Hitchens, Iowa, 294 N.W.2d 686 (1980); and State v. Steele, 93 N.M. 470, 601 P.2d 440 (1979). Nevertheless, we find the reasoning of the Zielke , Collins v. State , and other cases to be more persuasive.
In conclusion, we do not believe that the legislature intended the narrow interpretation that once a person suspected of driving under the influence refuses to consent to a test, a judge cannot issue a search warrant to obtain bodily fluids. We emphasize that we believe that the authority for issuing a search warrant to conduct such tests is predicated on a legal theory which is entirely independent of the Implied Consent Statute.