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
