Monday, August 21, 2017

KYCOA - Riker - DUI

Commonwealth v. Riker, Court of Appeals, August 18, 2017, affirming, to be published

I recommend that anyone working DUI cases read this opinion in its entirety.

Procedural history: District court denied defendant’s motion to suppress -> circuit court reversed and suppressed on appeal -> Court of Appeals affirmed circuit court order on discretionary review

Defendant Riker was stopped for suspected DUI in Lexington after hitting a parked car.  He submitted to a portable breath test (PBT), and the PBT reflected the presence of alcohol.  Riker then took the intoxilyzer test, and the test result measured over the per se limit of intoxication.

Under KRS 189A.103(7), “[a]fter 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.”

The arresting officer asked Riker if he wished to obtain a blood test at the University of Kentucky Medical Center (UKMC), and Riker indicated he did.  UKMC and Good Samaritan Hospital, a branch of UKMC, are the only options in Lexington for a DUI suspect to obtain blood evidence.  Both places charge a $450 pre-paid fee for the blood test.

Riker told the officer he had over $100 in cash but no credit card.  The officer did not think Riker had enough money for the test, but he took him to the hospital anyway.  When the hospital receptionist told Riker about the $450 fee, Riker told the officer, “No, take me back to jail.”  The officer indicated at the evidentiary hearing that he felt the cost was the reason Riker declined to obtain blood evidence at the hospital.

The Court of Appeals found that the $450 fee UKMC requires as prepayment for an independent blood test hinders for many the fundamental due process right to present a defense.  It found that the fee effectively foreclosed Riker from obtaining potentially exculpatory evidence.  The fee deprived him of the opportunity to challenge the results of the intoxilyzer test in a meaningful fashion, and the deprivation of a statutory right rises to the level of a constitutional violation of his right to due process.  As a result, the Court affirmed the circuit court order suppressing the officer’s unchallengeable PBT/intoxilyzer evidence.

The Court concluded with, “The Commonwealth also argues that the establishment of a mandatory fee or fee range for independent blood tests must come from the Legislature.  We agree with Riker that the argument misses the point.  It was the Legislature itself that afforded him – in mandatory language – the right to a blood test.”

John Tackett was Riker’s attorney.

Contributed by Steven Buck 

Friday, May 19, 2017

May 2017 Advocate Available

May 2017 Advocate is Available  


  • Children are Constitutionally Different: Neuroscience
  • Developments 
  • Bring Smart Changes
  • 2017 New Legislation Relevant to Criminal Defense Practice
  • Senate Bill 120: Criminal Justice Reform, Part I (we hope)
  • KY DPA Proclamation in Support of Objective Pretrial Release
  • Assessments
  • Joint Statement in Support of the Use of Pretrial Risk
  • Assessment Instruments

Friday, April 28, 2017

KYSC - Zapata - Withdrawal of Guilty Plea

Steven Zapata v. Com., Kentucky Supreme Court, 
To-be-published (4/27/2017): 

Steven Zapata was charged with murder.  He pled guilty under North Carolina v. Alford and accepted a 24-year sentence. He then moved to withdraw his plea. Appointed hybrid co-counsel expressed discomfort and stood by unable to assist Mr. Zapata at the hearing on his motion to withdraw his plea. The trial court refused to allow him to withdraw his plea. On appeal, the Kentucky Supreme Court held that the trial court erred by resolving an involuntary plea issue without an evidentiary hearing and without appointing conflict-free counsel.  

Susan Balliet represented Mr. Zapata on appeal.

Thursday, March 23, 2017

KYSC - Gullett - Juror Misconduct

Asa P. Gullett IV v. Comm.,
 Kentucky Supreme Court, 
To-be-published (3/23/2017):

Asa Gullett was charged and convicted of incest, rape, sodomy, and first and second-degree sexual abuse. Trial counsel discovered immediately after trial the jury foreman had withheld information that her close family members had been prosecuted for crimes in that county. Counsel moved for mistrial, stating they would have moved to strike her for cause or exercised a peremptory challenge. The trial court denied the motion for mistrial, and gave instructions that allowed non-unanimous verdicts on sodomy and first-degree sexual abuse.

The Kentucky Supreme Court vacated Gullett’s convictions and remanded the case for a new trial due to the juror’s misconduct. The Court ordered that in the event of a retrial, the sodomy and sex abuse instructions must be corrected to avoid non-unanimous verdicts. Susan Balliet represented Asa Gullett on appeal, and Elizabeth Curtin and Melanie Foote represented him at trial.