The Kentucky Court of Appeals has just published a case interpreting the "implied consent" law and one's right to an independent blood test following a DUI arrest. KRS 189A.103(7) provides a driver the opportunity to seek exculpatory evidence after she submits to the requested test of the officer.
The statute provides in part: (7) 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 administer a test or tests in addition to any tests administered at the direction of the peace officer.
Mr. Riker, a Defendant in Fayette District Court asserted that his due process rights were effectively denied when he was prohibited from obtaining an independent blood test. The reason he couldn't obtain the possible exculpatory evidence? He couldn't afford it.
According to the testimony, there are only two places in Lexington one can get an independent test. Both are owned by the Commonwealth of Kentucky, and both require pre-paid fee of $450.00. At the time of his arrest Mr. Riker did not have $450 in cash on his person to afford the test. He invoked his right for a test and the statute says he "shall be permitted" a test pursuant to KRS 189A.103, but unfortunately it did not happen.
In Fayette District Court, the Hon. Judge Bell denied Riker's motion to suppress the results of the state's intoxilyzer test. Mr. Riker entered a conditional plea and appealed the matter to Fayette Circuit Court where it came before the Hon. Judge Pamela Goodwine for review.
Judge Goodwine is quoted by the Kentucky Court of Appeals in its decision affirming her ruling. It states: "(The hospitals) practice of charging a DUI suspect $450 at the time of presentment for an independent blood test was effectively a bar to Riker obtaining potentially exculpatory evidence. Riker was not allowed an opportunity to challenge the results of the intoxilyzer test and this bar to his rights rises to the level of a due process violation." The case was remanded to District Court with directions to exclude the results of the intoxilyzer.
Thankfully, the Kentucky Court Appeals recognized this as the correct and proper ruling.