Kentucky court says DUI suspects refusing blood test cannot be used against them

Published 2:12 pm Thursday, April 29, 2021

The refusal of a person accused of drunken driving to submit to a warrantless blood test cannot be used as evidence to help prove guilt or to seek stiffer punishment, the Kentucky Supreme Court ruled Thursday.

Prosecutors also cannot introduce such refusals at trial to explain away the lack of evidence regarding a suspect’s blood-alcohol level, the court said.

The long-running case stems from the DUI arrest of Jared McCarthy by Owensboro police in 2014.

The trial judge properly decided that McCarthy’s refusal to take the warrantless blood test could not be used as evidence of guilt, nor could it be used to enhance his sentence, the state’s high court said.

But the trial judge erred by allowing prosecutors to introduce that refusal as evidence to explain to the jury the lack of “scientific evidence” as to McCarthy’s blood-alcohol content, the court said.

That trial-level decision “eviscerated” McCarthy’s Fourth Amendment protections against unreasonable searches and seizures, Deputy Chief Justice Lisabeth T. Hughes wrote.

The absence of “scientific evidence” was primarily the result of the state’s “own actions or rather inactions,” Hughes said. Police officers could have asked McCarthy to submit to a breath test rather than the “more invasive blood test,” she said.

“If he submitted to the breath test, the Commonwealth would have had the desired scientific BAC evidence and if he refused, nothing … would have precluded admission of that refusal of a breath test as evidence against him in the DUI prosecution,” she wrote. “The difficulty the Commonwealth found itself in with regard to an absence of scientific evidence was largely its own doing.”

Once his refusal was improperly admitted at trial, the defense was entitled to a response, the court said. But McCarthy’s attorney was not allowed to comment that the absence of scientific evidence was due to the state’s failure to secure a warrant for the defendant’s blood, it said.

“He should have been allowed to raise the issue of the Commonwealth’s right to seek a warrant for the blood test; his refusal was not the end of the officer’s options for obtaining a blood test that night, even if the officer was personally unaware of the availability of a warrant,” Hughes wrote.

The arresting officer testified that he had never requested a search warrant for blood in a DUI case and did not know whether he could request a warrant, Hughes said.

McCarthy ultimately was convicted of operating a motor vehicle while under the influence of alcohol and/or other substances. As a repeat offender, he was sentenced to two years in prison. McCarthy appealed, putting the case on a course that ended up in the Supreme Court.

Hughes wrote that a “reasonable possibility exists” that the admission of McCarthy’s refusal to take the blood test “tainted the jury’s view” and contributed to his conviction. The high court sent the case back to Daviess County Circuit Court for further proceedings consistent with its decision.

The ruling drew a partial dissent from two justices.

Justice Laurance B. VanMeter dissented from the portion of the ruling that determined McCarthy’s refusal to have his blood drawn cannot be admitted into evidence. VanMeter said he agreed that McCarthy’s refusal to permit the blood draw cannot be used to enhance his DUI penalty. He said he would uphold McCarthy’s conviction. Justice Robert B. Conley sided with VanMeter.