APPELLANT v. RICHARD GLENN HOBBS APPELLEE

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Court of Appeals of Kentucky.

commonwealth of kentucky APPELLANT v. RICHARD GLENN HOBBS APPELLEE

NO. 2010–CA–000483–dg

Decided: June 01, 2012

BEFORE:  ACREE, COMBS AND LAMBERT, JUDGES. BRIEFS FOR APPELLANT:  Jack Conway Attorney General of Kentucky Perry T. Ryan Assistant Attorney General Frankfort, Kentucky BRIEF FOR APPELLEE:  Douglas P. Vowels Brandenburg, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING

The question on appeal is whether the Meade District Court's order denying Richard Hobbs' motion to suppress the results of an Intoxilyzer test should be reinstated following the Meade Circuit Court's opinion reversing the district court's order.   The basis of the circuit court's reversal was the arresting officer's failure to provide Hobbs a reasonable opportunity to have an independent blood alcohol test performed in accordance with KRS 189A.103(7).   We find Lee v. Commonwealth is not meaningfully distinguishable from the facts of the case before us.   Applying Lee v. Commonwealth, we conclude the Meade District Court properly denied Hobbs' motion to suppress.  313 S.W.3d 555 (Ky.2010).   Therefore, we reverse.

I. Facts and procedure

On September 29, 2007, Kentucky State Police Trooper Jason Drane stopped a vehicle driven by Hobbs on suspicion of drunk driving.   After he administered field sobriety tests, Trooper Drane conducted a breath test, which revealed Hobbs' blood alcohol level was 0.09.   Hobbs was taken into custody and advised of his right to independent blood testing in accordance with Kentucky Revised Statute (KRS) 189A.105(2)(a)(3) and KRS 189A.103(7).

Hobbs requested an independent test, but did not request that a particular medical professional or facility conduct the test.   Trooper Drane drove Hobbs to Hardin Memorial Hospital, as was his custom when he arrested someone in Meade County for driving under the influence.   Trooper Drane later testified at the suppression hearing that he was not aware that the healthcare professionals at the hospital might refuse to perform a blood test.

At Hardin Memorial, a medical professional informed Hobbs that a blood test would not be performed absent a medical need;  Hobbs was required to have a physical exam before blood would be taken.   Upon learning this, Hobbs declined to submit to the medical exam and blood test.   Hobbs did not request that another provider perform the test or collect a blood sample.

Hobbs was taken to jail and charged with driving under the influence, first offense.   He filed a motion to suppress the results of the Intoxilyzer test on the basis that he had been denied his statutory right to secure an independent blood test.   The motion was denied, and Hobbs entered a guilty plea conditioned on his right to appeal the denial.

On appeal, the circuit court reversed.   The Commonwealth appealed to this Court, and we undertook discretionary review.

II. Standard of review

KRS 189A.105(2)(a)(3) requires that, upon arrest for driving under the influence, the suspect be informed of his right to seek an independent blood test.   Furthermore, KRS 189A.103(7) provides:

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.   Tests conducted under this section shall be conducted within a reasonable length of time.   Provided, however, the nonavailability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.

KRS 189A.103(7).   The arresting officer is required to take reasonable steps to assist the defendant in securing the independent test.   Commonwealth v. Long, 118 S.W.3d 178, 184 (Ky.App.2003).   Whether the officer complied with this obligation will be analyzed considering the totality of the circumstances.  Id.

When the facts are undisputed, the question of whether the trial court properly denied a motion to suppress is reviewed de novo.  Lee, 313 S.W.3d at 556.   Hobbs has not contested Trooper Drane's testimony, and the relevant facts are likewise not a matter of dispute.

III. Discussion

This case is nearly identical to that of Lee v. Commonwealth, supra.   In Lee, the defendant was advised of his right to an independent blood test and invoked that right, though he did not “request[ ] a particular medical provider [.]”  Lee, 313 S.W.3d at 556.   Once the defendant in Lee arrived at Hardin Memorial Hospital, the attending physician declined to perform the blood test because it was not medically necessary.  Id. The officer had no reason to believe the staff at Hardin Memorial would refuse to conduct the test, and Lee did not ask to be taken to any other healthcare provider.

The main point of distinction between Hobbs' case and that in Lee is that Hobbs was not faced with a physician's outright refusal to conduct the test.   Instead, if Hobbs had agreed to submit to an examination, the attending physician would have conducted the independent blood test.   Hobbs' refusal to submit to the examination is the only reason he did not receive an independent evaluation of his blood alcohol level.

The Supreme Court in Lee determined the suppression motion was properly denied because the arresting officer had taken reasonable steps to assist the defendant in securing his right to an independent blood alcohol test.   The “two pivotal factors” in that case were:  (1) the utter lack of evidence that the defendant had requested a second test after the attending physician at Hardin Memorial declined to perform one;  and (2) the lack of evidence that the arresting officer had taken the defendant to Hardin Memorial in bad faith, knowing that facility would not conduct the blood test.  Id. at 556–57.   Likewise, Hobbs did not request a second blood test, and he has presented no evidence that Trooper Drane had reason to know Hobbs would not be able to secure a blood test at Hardin Memorial Hospital.   There is no reason to distinguish the facts of this case from that of Lee, and so we must conclude that the district court's denial of Hobbs' motion to suppress the results of the Intoxilyzer test was appropriate;  the circuit court's reversal of that order was in error, and we therefore reverse.

IV. Conclusion

The Supreme Court's opinion in Lee v. Commonwealth, 313 S.W.3d 555 (Ky.2010) is controlling because the facts are, for all practical purposes, indistinguishable.   In accordance with that opinion, we reverse the order of the circuit court which reversed the district court's denial of Hobbs' motion to suppress.

all concur.

ACREE, JUDGE: