Kentucky’s DUI statutes have long stated that Kentucky drivers implicitly consent to blood, breath, or urine tests to determine whether their blood alcohol levels (“BACs”) are above the legal limit. Those drivers who refused these tests faced significant penalties, including the suspension of their drivers’ licenses and increased jail terms.
In 2016, the United States Supreme Court held in Birchfield v. North Dakota, that while the Fourth Amendment did not require a warrant for breath tests, warrants were required for blood tests to determine BACs in DUI prosecutions. Thus, one of the drivers involved in the case had a right to refuse a warrantless blood test, and the state could not convict him for that refusal. The decision cast doubt on many state statutes, such as Kentucky’s implied consent law, that imposed penalties for refusing DUI blood tests but did not make the refusal a separate criminal act.
On November 1, 2014 at 1:00 a.m., an Owensboro police officer stopped Jared McCarthy on suspicion of DUI. After being placed under arrest, McCarthy refused to submit to a blood test at a local hospital.
Citing Birchfield, McCarthy asked the district court to exclude any evidence of his refusal to take the warrantless blood test. In addition, he asked the district court to find that the enhanced penalty for a refusal did not apply to him and to bar the Commonwealth from using his refusal as evidence of his guilt at trial. The district court agreed, ruling that the Commonwealth could not use McCarthy’s refusal as evidence of his guilt and that the case would proceed without the refusal as an aggravating circumstance. During trial, however, the district court permitted the Commonwealth to introduce evidence relating to his refusal in order to explain to the jury why it lacked scientific evidence as to his BAC. A jury ultimately convicted McCarthy, and the district court sentenced him to two years in prison.
McCarthy appealed his conviction to the Kentucky Court of Appeals. The Court of Appeals agreed with the district court that Birchfield required the exclusion of any evidence McCarthy refused the warrantless blood test and that the enhanced penalty did not apply. The Court of Appeals went further, however, and held that the Commonwealth improperly commented on his refusal by using such evidence to explain why it was unable to obtain evidence of his BAC.
In an landmark decision, the Kentucky Supreme Court extended Birchfield to Kentucky’s DUI statute, holding the Commonwealth could not seek enhanced penalties for drivers who refuse warrantless blood tests after a DUI arrest. In addition, it held that the Fourth Amendment prevented the district court from using McCarthy’s refusal as evidence of his guilt. The Court also agreed with the Court of Appeals in holding that the Commonwealth improperly offered the refusal evidence as a means to explain why it did not have any evidence of McCarthy’s BAC. That the Commonwealth lacked such evidence, the Court concluded, was a problem of its own making since it could have obtained McCarthy’s BAC, without a warrant, by using a breath test.
McCarthy now makes clear that the Commonwealth cannot seek enhanced penalties for those drivers who refuse a warrantless blood test after a DUI arrest. Considering the dramatic impacts a DUI conviction can have on a driver’s freedoms and employment, this is an important case for DUI practitioners.