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You are here > KACDL SEMINAR HANDOUT NOV. 7, 2008

 

 

 

 

 

 

 

 

 

 

 

 

 While we are persuaded that the Commonwealth cannot properly get the review it sought and obtained [through KRS 22A.020(2)³ or KRS 23A.080(1)⁴], we equally believe some vehicle for review of such interlocutory district court rulings should be available. Otherwise, the Commonwealth may be forced to trial without vital evidence or with some other significant prejudice to its case, as shown herein.

 (Billingsley Note: The Court of Appeals ruling above in Billingsley v. Commonwealth was depublished by the Supreme Court, and the use of the “original action” to defeat the prohibition against interlocutory appeals from District Court to Circuit Court is still a justicible issue ripe for review by the Supreme Court.

 

 

 

 

 

 

 Authorities:

500 KAR 8:030. Administration of breath alcohol tests and chemical analysis tests.

 

 

“31]         We find it necessary to set out those statutes and the regulation referred to by Wirth. KRS 189A.103(3)(a) states:

[32]         Tests of the person's breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice Cabinet, and shall have been performed, as to breath tests, only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty minutes.

[33]         KRS 189A.103(4) reads:

[34]         A breath test shall consist of a test which is performed in accordance with the manufacturer's instructions for the use of the instrument. The secretary of the Justice Cabinet shall keep available for public inspection copies of these manufacturer's instructions for all models of breath testing devices in use by the Comonwealth of Kentucky.

[35]         500 KAR 8:020(2) states:

[36]         A breath alcohol instrument shall be accurate within plus or minus 0.005 alcohol concentration units reading to be certified. To determine accuracy of instruments, a technician trained or employed by the Forensic Laboratory Section of the Department of State Police shall perform analyses using a certified reference sample at regular intervals. (2) All breath alcohol analysis instruments shall be examined by a technician trained or employed by the Forensic Laboratory Section of the Department of State Police prior to being placed into operation and after repairs of any malfunctions.

[37]         Although not set forth in Wirth , we must also include 500 KAR 8:030(2), which reads:

[38]         A breath alcohol concentration test shall consist of the following steps in this sequence:

[39]         (a) Ambient air analysis;

[40]         (b) Alcohol simulator analysis;

[41]         (c) Ambient air analysis;

[42]         (d) Subject breath sample analysis; and

[43]         (e) Ambient air analysis.

[44]         (3) Each ambient air analysis performed as part of the breath alcohol testing sequence shall be less than 0.010 alcohol concentration units.

[45]         We must observe that the "additional requirements" stated in Wirth are not in fact additions, but are modifications of the already existing standards set out in Marcum, supra, and Owens, supra. KRS 189A.103(3)(a) changes the standard in Marcum and Owens concerning the fifteen minute time frame and now specifies that a peace officer personally observe the subject for twenty minutes. See also 500 KAR 8:020(1). KRS 189A.103(4) effectuates no change. It requires the test to be performed in accordance with the manufacturer's instructions. The language in Marcum and Owens states that the test should be administered according to standard operating procedures. We find this to be a distinction without a difference. 500 KAR 8:020(2) only specifies the standards involved in properly checking the machine. Finally, 500 KAR 8:030(2) modifies the requirement that the operator state that the "chemicals were of the correct kind and compounded in the proper portions" and now sets forth the steps and sequence to be followed when giving the test.

[46]         Based on the relevant cases, statutes and administrative regulations in this opinion, we restate the evidence necessary to lay the proper foundation for admission of a breath test:

[49]         3) That the certified operator have continuous control of the person by present sense impression for at least twenty minutes prior to the test and that during the twenty minute period the subject did not have oral or nasal intake of substances which will affect the test.

[50]         4) That the test be given by an operator who is properly trained and certified to operate the machine.

[51]         5) That the test was performed in accordance with standard operating procedures.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A hospital in Paducah has refused to allow its nursing staff take blood samples at the request of police officers in the absence of a physician’s authorization.  We note that KRS 333.990 makes it a misdemeanor for anyone to take a blood sample without a physician’s authorization.  Such a procedure may also violate medical ethical and licensure standards.

 Any hospital or clinic that allows its personnel to take blood samples without a physician’s authorization is treading on thin ice and are subjecting themselves to liability for any injuries caused by the procedure (i.e. infection, damage to a nerve etc.) as well as a criminal penalty which includes potential jail time. 

The courts have not clearly ruled on the issue of whether or not an illegally obtained blood sample may be introduced into evidence.  The Mitchell case focuses on Chapter 189A (the DUI act) to say that nurses and EMT personnel may take a blood sample under proper conditions…but that decision did not discuss the effect of KRS 333.160.  The Mitchell case says that nurses, phlebotomists and EMT personnel may take a blood sample but that decision does add the condition that the procedure not otherwise violate other law. 

We conclude that KRS 333.160 is controlling, and hospitals and nursing personnel are violating the law by ignoring this statute.   

This issue is interesting to consider, but it may not necessarily make evidence obtained in violation of KRS 333.160 inadmissible. This is an issue that has never been raised on an appeal.

 

 

 

 

Notes:  

Although we find that the trial court erred in preventing Appellant from testifying, automatic reversal of Appellant's conviction is not mandated if this Court finds that such an error is subject to the harmless error analysis espoused in Chapman v . California , 386 U .S. 18, 87 S . Ct. 824, 17 L .Ed .2d 705 (1967) (overruled in part by Brecht v. Abrahamson , 507 U.S . 619, 113 S.Ct. 1710, 123 L.Ed .2d 353 (1993)) . The Seventh Circuit held in Ortega that although it is error for a trial court to prohibit a defendant from testifying on his or her own behalf, such error is not reversible if found to be harmless beyond a reasonable doubt. 843 F.2d at 261 . The court in Ortecga held that the constitutional effect of the error should be analyzed in light of the harmless error standard set forth in Chapman .

[32]    "The fact that an error involves a constitutional right does not preclude harmless error analysis ." Talbott v. Commonwealth , Ky., 968 S .W.2d 76, 83-84 (1998) . The United States Supreme Court has applied a harmless error analysis to a wide variety of constitutional errors . See, e.g ., Arizona v. Fulminante , 499 U .S. 279, 111 S . Ct. 1246, 113 L.Ed .2d 302 (1991) (erroneous admission of involuntary confession) ; Clemons v. Mississippi , 494 U .S. 738, 110 S . Ct. 1441, 108 L.Ed .2d 725 (1990) (unconstitutionally overbroad sentencing-phase jury instructions in capital trial) ; Satterwhite v. Texas, 486 U .S. 249, 108 S.Ct. 1792, 100 L .Ed.2d 284 (1988) (erroneous admission of evidence at sentencing phase of capital trial in violation of right to counsel) ; Crane v. Kentucky, 476 U .S. 683, 106 S.Ct. 2142, 90 L.Ed .2d 636 (1986) (erroneous exclusion of defendant's testimony surrounding the circumstances of his confession) ; Delaware v. Van Arsdall, 475 U .S . 673, 106 S . Ct. 1431, 89 L.Ed .2d 674 (1986) (erroneous restriction of biased witness cross-examination in violation of Sixth Amendment) ; Kentucky v. Whorton, 441 U .S . 786, 99 S . Ct. 2088, 60 L.Ed .2d 640 (1979) (failure to instruct jury on the presumption of innocence) .

 

 

 

CR 61.02 SUBSTANTIAL ERROR:   “A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”

 

Criminal Rule 10.26. Substantial error: A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.