MELISSA HELTON V. COMMONWEALTH OF KENTUCKY

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AS MODIFIED : JANUARY 26, 2010 AS CORRECTED : JANUARY 21, 2010 RENDERED : AUGUST 27, 2009 TO BE PUBLISHED %UvUr, OT jUrUTUrRU 2008--SC-000141-MR APPELLANT MELISSA HELTON V. ON APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE C . HUNTER DAUGHERTY, JUDGE NO . 06-CR-00275 COMMONWEALTH OF KENTUCKY APPELLEE OPINION OF THE COURT BY JUSTICE NOBLE VACATING AND REMANDING Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol . The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident . She claims that this practice violates KRS 189A. 105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A .103 . She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects in general are unconstitutional. 1. Background On August 26, 2006, Appellant Melissa I Icltc>r~ drove hc,r c .l1il(ircil, Nicholas Helton ;ind Madison I-leltc~n, leer friend I,()n I,<'tt hn)p, ,reel two~ ether children, Emily Preston and Caleb I-lildebrandt, 1()a locld creek t.() swim] . Appellant. and Lathrop drank alcohol while the chlldl-ell swam and played . That evening, Appellant packed Lathr- op and the (I)ilciren into leer v;rrn to drive home. Appellant drove the van off the road and sirr_ick sonic trees and shRabs . Nicholas Helton, Emily Preston and Caleb Hildebrandt were killed by the impact . Madison Helton suffered a broken arm and lacerations . Lori Lathrop sustained injuries that required hospitalization ; she later died from her injuries . Appellant suffered an ankle fuact tire cant severe head lacerat IMls. The crash victims were all transported to t he University of Kentucky Hospital. Appellant was admitted to the hospital . Sometime later, two~ Jessamine County Sheriff's Deputies visited Appellant, who was unconscious . Despite having no search warrant, the deputies took a blood sample, which, when tested, showed Appellant had a blood alcohol content of .16% . Appellant was indicted for four counts of wanton murder, one count of wanton endangerment, and one count of first-offense driving under the influence . She moved to suppress the evidence of her blood alcohol level, arguing that the sample was taken without her consent and in violation of KRS 189A . 105(2)(b) . The trial court denied the motion, finding that Appellant "was unconscious or otherwise in a condition rendering her incapable of refusal," and thus there was "[s]tatutory consent under KRS 189A .103 ." 2 Appc1lant sul)seducntly entercd <c c~c~i7clitic~i~<tl guilty plea to , III ch~irgcs, preserving for appeal the issue ofwhethcr the Wood <~lc~c~ltcrl cvidencc shottlcl have been suppressed . She was sentenced to~ twenty--lour y(1~tr-s in prison . She now appeals to this Court <as a rn.i t ter of right- Ky. Const . 110 (2) (b) . 11 . Analysis A. Compliance with KRS 189A. 105(2)(b) Appellant's first: contention is that t:hc t.~tkint and test:inl of her blond violated KRS 189A . 105(2)(b), which states in part. that. "if the incident involves a motor vehicle accident in which there w,,:is a f(it,tlity, the invcstig~:.f ing peace. officer shall seek . . . a search warr.int for l)loc>d, breath, or urine testing unless the testing has already been done by consent.."' She ;trgues that this statute, r KRS 189A. 105(2)(b) reads in its entirety: Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A .010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500 .080, as a result of the incident in which the defendant has been charged . However, if the incident involves a motor vehicle accident in which there was a fatality, the investigating peace officer shall seek such a search warrant for blood, breath, or urine testing unless the testing has already been done by consent . If testing done pursuant to a warrant reveals the presence of alcohol or any other substance that impaired the driving ability of a person who is charged with and convicted of an offense arising from the accident, the sentencing court shall require, in addition to any other sentencing provision, that the defendant make restitution to the state for the cost of the testing. conflicts with 1{RS 189A .103(3)(ii), presmrt~rbly rrw<ming KW-) 189 . 11) :3(1), 1 which states : The following provisions shall ~rpply to ,111y person wl1o operates or is in physic<d control of a rn()t()l' velride ()r- it vehicle tlr,rt is rant it motor vehicle in this Cor-nmc)nwe<dt h : (1) He car she fits given leis ()r 11( consent to ()1)(- (1) or filore .rtests of his ()r her blood, breath, <rrid Lit- 111c, or conlhirr,"ition tl1crcof, for the purpose of dclermining alcolic~l cortcentr~lhc~n car l~re~scr~ee of a substance which may impair one's driving t-rbility, 1f an officer has reasonable grounds to be-f cve t liat . it violation of KISS 189A.010(l) or 189 .520(1) his occurred . . . . (Emphasis added .) Appellant: claitY7s that KRS 189A . 105(2)(b)'s warrant requirement trumps any consent provision because it is inure specific . This argument, however, depends on they interplay bOwceri tlic consent . provision and the possibility of a refusal t_0 submit to testing by a suspect . . KRS 189A.103 lays out a framework [Or i mplied consent See Cornr1lo rlwe.i lt.h v. Hernandez-Gonzalez, 72 S .W .3d 914, 915 (Ky . 2002) (stat_ing t11i.i t implied consent was "unmistakable" after the 2000 amendment of the stcltute to read "has given his consent" rather than "deemed to have given his consent.") ; Combs v. Commonwealth, 965 S .W .2d 161, 164 (Ky. 1998) ("KRS 189A .103 implies consent in DUI cases generally.") ; Commonwealth v . Wirth, 936 S .W .2d 78, 82 (Ky. 1996) ("By virtue of KRS 189A .103, one who operates a motor 2 Though Appellant actually cites to "KRS 189A. 103A(3)," her brief quotes language from KRS 189A. 103(3)(a), which states: 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 and Public Safety 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 (20) minutes . vehicle consents to ~I tcst of ills blood, brc~alla car tarine for Hie Mar- pose of determining alcohol concentration .") . If a driver refuses the test, he or slac c41COively withdraws consent For the test . KRS 189A .105(1) states that to "reftasal to sribrnit to tests tinder KRS 189A .103 shall rcstalt in revocation caf, Ills driving hr-ivilegc, (IS l)rovided in this chapter," and KR',-)' 189A . l05(2)(a) 1<=ays out. requirements that an officer warn -.I suspect of certain things when the officer tandertfakes to test a person's blood, breath, or urine. Thus, it is clear that refusals rare- anticipated t_rnder the statutory scheme. See also Hernandel-Gon o lez, 72 S .W.3d at y 15 (noting; that suspects may avoid the test by refusing to submit, though thereby making themselves subject to other sanctions) ; W~, 9,36 S .W .2d at: 82 (noting language in a prior version of the stafate stating "no person shall be compelled to submit to any test." meant that a rcftrs~al to submit to testing cot.ild not be overcome by physical compulsion) . KRS 189A . 105(2)(b) comes into play by requiring the officer to obtain a warrant before testing the suspect when a motor vehicle accident results in a fatality, as is the case here, unless the blood test "has already been done by consent ." There is no conflict between the statutes, however. In making this conflict argument, Appellant ignores that KRS 189A. 105(2)(b) conditions its warrant requirement on the fact of testing not already having been done by consent . But KRS 189A.103 makes consent the default rule in Kentucky . By operating a vehicle in this state, a driver gives his or her consent to certain tests, and KRS 189A .103(2) provides further that a person who is 5 CC unconscious or -o t.hc.rwrsc, in -~ corodri mry rprodcYr -iro ___ .~ c . ____..... . _ ._ - .m li.rr?-1 or I](-I- iro . npafp(c cpl ~, .. . .. .. . . ._. . ..__ refusal is deemed not to have with(ir~1wri consent . . . ." `I'llmrgh ;allcminces <rr-c made for withdrawal of consent, this clcre's no( create a corillict betwccn-KRS 189A . 105(2)(b) and KRS 1.89A .103 . Nor- cl()c,s it necessarily rne~m that KRS 189A . 105(2)(b) was violated in this case by the officer's i1111-Ire to ()bt,,air1 ;a warrant, assuming of course that. Appcll.,,rnt corrsc~nted to the t.cst . Appellant argues that she did not Cc)rIsc'rlt. l)CCcILISC' she w,as crncc~nSCic~us and therefore was "in no position to consent to the taking c>f lier blood ." This argument attempts to invert the default_ rules for consent as established by KRS 189A.103 . The default, as noted above, is statutorily implied consent. . The question is not whether Appellant consented (car was in a posit-MI) to bC able to consent), but whether she wit=hdrew lie- consent . Cle"irly she slid not refuse to submit to the test; in fact, she w,rs unable to do so because she- was unconscious or nearly so. More importantly, the fact that Appellant was unconscious at the time did not nullify her statutory implied consent. KRS 189A .103 focurses on whether the suspect affirmatively withdraws consent by refusing to submit to testing . The statute specifically addresses the continuing consent of one who is unconscious, effectively nullifying the right to refuse the test in cases of incapacity to refuse. This is a public policy judgment call that is solely within the province of the legislature, provided no constitutional rights are violated . This statutory aspect of Appellant's argument, therefore, is fairly simple to resolve . Appellant consented to testing by operating a vehicle in Kentucky . She did not thereafter refuse to submit to testing and therefore did not 6 withdraw her consent . Becfmse AppellaW "cortscrlted," t)re c4i`iccr- (lid r1ol violate KRS 1_89A . 105(2)(b) in failing to~ g0 <r warrant to willldrow ar)d test ller blood, but. this statutory implied coriscrat prcwisior1 (1 .ararlOt t r-trrr)p a constitutional prohibition on unreascrm :fale searches beccrtasc- (401C Supremacy Clause. B. Is Implied-Consent Testing Unconstititional? The more difficult question is whetl-ier procccdirag with t1w warnant.less blood testing of an unconscious suspect under- the statutory implied consent provisions without probable cause and her having an opport rlraity to refuse violates the protection against unreasonable searches and seizures provided by the Fourth and Fourteenth Amendments to the United St,'1tcS Cc~nstitution . 3 Appellant argues that because she did not consent (or rattier becausc s17c did not have the opportunity to refuse) ; there were no exigent circtrrnst~rnces ; and no warrant was obtained, the taking of her blood violated the Const-it Ution . 4 The United States Supreme Court has touched on this issue of implied consent in a number of cases . For example, in Rochin v. Cali(orni~i , 342 U .S . 165 (1952), the Court held that the forced, warrantless pumping of a suspect's stomach, even after officers had seen him quickly swallow some pills, was so 3 Appellant's brief makes no reference to any analogous provisions of the Kentucky Constitution . She depends solely on claims of federal constitutional violations . However, while Kentucky could expand Fourth Amendment protections, it cannot decrease them . Beemer v. Commonwealth, 665 S.W.2d 912, 913 (Ky. 1984) ("Kentucky cannot accord less protection from searches and seizures than is afforded by the United States Constitution . . . .") . 4 The Commonwealth simply does not reply to this argument . Instead, it focuses only on the issue of statutory construction in resolving the alleged conflict between KRS 189A.103 and KRS 189A. 105(2)(b) . violent and invasive as to~ "do rrmrc tlamt c41i'tld smlic I<Islidic>its sclt~c~f~rr~~ishtac~ss or private sentirneritalism about eombatittg c,rirIIe 1c>() c'tacrgetic-filly ." lcf., at 17'2 . The Court concluded that "[tIhis is cmidcu,t that slac~cks the cm] scicIrWC, . . [and] is bound to c>fl-end cvcti hardened sensibilitics . Thcy'm-c methods close to the rack mid the screw to pc-1-11111 Of 1()o COttstitrttiOrlal tli11creritNatic»a ." lc_. Thus, the Court held that such a practice violated the due process guarmltee of the Fourteenth Amendment . Obviously, the de(Cricimit had riot, been allowed to choose . Conduct like that involved here, the taking of a blood sample, while admittedly invasive, falls quite short of the veritable assault committed by the officers in Roch in . Thus, the Court in Breithf _ti1~t_v. .,Abram , 352 U .S . 432 (1957), held that the taking of a blood sample by fa elector from ara uncm-isciorzs DUI suspect was but a "slight. . . . intrusion" cornpat-ed to that in Rochirl acid did not violate due process . Id . at 4.39 . However, the Court declined to c,ngage in a search-and-seizure analysis because at that time the federal exclusionary rule was not applicable to the states and the state in question, New Mexico, had not adopted the rule . Id . at 409-10 . Appellant, however, has raised the Fourth Amendment specter M this case. The closest U .S. Supreme Court case to address this issue is Schmerber v. California , 384 U .S . 757 (1966) . There, the defendant refused to consent to a blood test while at the hospital following a car accident . Nevertheless, a police officer had a doctor take a blood sample, which later showed the defendant had been drinking alcohol . The Court rejected claims under due process, the right against self-incrimination, and the right to counsel . 8 The Court also addressc-d i hourf h Arnel-ldl-icr -It c+iinr, the c,xcfu :;i()rz, cry . rule having been held applicable to) thc slaws icl Mal)_~ .v .y U . :~ . F>4:3 ()laic , (1961) . The Court framed its h'c)clrtli Arttcrldrricift a>mlysis by statitrg: [O]nce the privilege against sc "if-itrcrinrirv)tic)i1 has, L)cerl f(Atrld rlc)1 to bar compelled intrusions lilt() i lre NAY for- blood to be ml<Ilyzcd for alcohol content, the Fourth Aruei7drllei-It's proper ftlrlctic)n is to constrain, not against al l lilt r'tislc)ils stacll, lout irlsl intrusions which are not j t_vst ificd_)tr_.thc_,circTumstances, or- which are made in an improper maimer . III (Al-terG Words, ~ the questic)ils wee must decide in this case are whet her the police were justified ir) requiring petitioner to submit to) the Wood ucst, and whet leer t means and procedures employed in klking his blood respected relevant Fourth Amendment: st-iildards of reasonableness . INS Kr r~ lIc Schmerber, 384 U .S . at 768 (emphasis Added) . Significantly, the Court noted that the police had probable ca t_rsc _to~ arrest the defendant, given that. hey smelled of alcohol and 111-Id l)l()()c-lsl)()t, glassy eyes . When the defendant dcrnc)nst_nitec similar symptoms pit 111(- hospital, the officer placed him under arrest . The Court stated that this alone would not have obviated the need for a w~:irrant :, since a bodily intrtustOii implicates interests as precious as those related to a house, and that the determination of whether an invasive search was justified should normally be left to a neutral and detached magistrate . However, because there is a great likelihood that the defendant's body would reduce the level of alcohol in his blood as it began to process the substance, "[t]he officer . . . might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence' . . . ." Id. at 770 (citation omitted) . Thus, the test was justified under an exigent circumstances approach . The Cout-t also approved the test itsclkis rcwlsc)r1~1hlc, 11t)ti11t . th(rt h((e)d tests are "comm()tlplace," rcl . ~,,1t 77 1, mid 11<-rvt' t)f_'('c)171C', "t"t)l,ItiCl(' 11) MW life," id . at 771 n .13 (citat:iorl ;md glrc)t<-itMr-I rnor-ks omi(ted) . Mc)r- t- c',ve1-yday i1Ylpm -tarit to the Court's approval was the fact that, the use ()f a blood smr)lfle to test blood alcohol concentration was ",I highly c~fh .-olive nzcaris ()i'detcr - nlirlirig thc~ dc~grc~e to which a person is under tfle infltje11cc ()f alcohol ." 1-d . a t 771 . Fir1ally, the Court reasoned that the specific test. in that case was rcasc)rmt)le, having been "taken by a physician in a hospital environment according to~ acccpt.ed medical practices." Id . Based on these findings, the Court concJudcd that there was 11o violation of the defendant's Fourth Amendment rights . 1-1()wevc~r- , t.lie cmrr - t catationec against reading the decision as a 1Aankct approv,.)l of h(Aily irrtr-crsic)ns: It bears repeating, however, that we reach this -judgment cmly can the facts of the present : record . 'I'hc integrity of sir) ir-idividmil's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions . Id . at 772 (emphasis added) . In subsequent dicta, the Court has described Schmerber as "clearly allow[ing] a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test." South Dakota v . Neville , 459 U .S. 553, 559 (1983) . The Court cautioned only "that due process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force." Id . at 559 n.910 This (,otiO I)<1s cited to Sch_merl)(.r i11 IIIc I)'ist ~1s 11oldirlg t.lr<tt blood tests in DUI cases do loot. violate t_he Fo~urtl-I Amemlincnt . See e_. ; cacl-I v . Commonwe Ljlth, 927 S .W .2d 826, 828 (Ky . 1906) ("`Che U1111cd States Supr-crttc Court has held 111~t t a blood test does not violate f .he f{edcr~t l Due Process Clause, the F11-11i Amendment against self-Mcnlmmrticlli, tlae Sixtl-i Amendnwlat right to counsel or=tlie Fourth Amerl(Iraac-11t right to u11L3wfUl search raid seizure .") . Other times it has cited Sch me rbcr more gingerl y, noting that. it. i s not a blanket approval of bodily invasive tests raider the Fourth Amendment and that there are other requirements . 1-1(. t- taatadez-(xotlzalez, 72 S .W.3d at 915 (stating that blood test "did not constitute at] unreasonable search and seizure, notwithstanding that: the sample was taken witlic>ut,t warrant, where the lx>licle officer was Justified in requiring the test. (Ind m(mrwr in which the test was performed was reasonable") ; Holbrook_y . Knopf, 847 S .W .2d 52 (Ky . 1992) (noting that "Sc hmerber was, of course, <i warr,,trlt .less search justified can t lacy basis of `exigent. circumstances,"' which is an exception to warrant requirement) . The case Appellant cites which is closest on point is Cooper v. State , 587 S .E.2d 605 (Ga . 2003), in which the Georgia Supreme Court held unconstitutional an implied consent statute that allowed for testing of any person who had been involved in an accident resulting in serious injuries or fatalities . The court based its decision on the fact that this allowed what amounted to a search without probable cause, since it applied any time a serious accident occurred, regardless of whether there was any evidence of DUI . CCOODc r, 11c~wever, is readily clisiirrt rrislufMc lwc':rtrsc tlw st ;rtt_rtc question differs substantially from Ken ucky's. ( > trr implied only applies in situations where "an officer 11~rs is t cf ccmlserat stfit tite re"Isonabl ep"rotinds to bc1ICvC that a violation of KRS 189A .010(1) ()r 189 .520(l) 189A .103(l) (emphasis added), which III la .r.s OCcurrec," I{RS ~; ;ry, wlterl the officer hers "reasonable grounds" to believe the staslae-cil was driving under the ir~fltrer~c~c~ . Kentucky's statute does not include a provision like that in Georgia allownag testing for any sufficiently serious accidetit . Nothing in the Kentucky ir7al~lic=d consent statute allows it to be invoked riwr-cly because a person is involved in a serious accident. In Kentucky, there rmrst be some suspicion of driving under the influence before implied consent: c~nr he invoked . That Cooper is inapplicable is t.indcrscorcd by the fact t hat t hc, (1corgilt court expressly declined to address that fxrrt of the implied consent start tits that allowed testing when there was an -allegation of a violation of the st-ate's DUI statute. Id. at 607 n.3 . In fact, the court later upheld that portion of t he statute, distinguishing Cooper in the process: Cooper makes it clear that [the implied consent statute] is unconstitutional to the extent that it could be interpreted to require an individual to submit to chemical testing solely because that individual was involved in a traffic accident resulting in serious injuries or fatalities . On the other hand, where an individual has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has-probable cause to believe that the individual was driving under the influence of alcohol or other drugs, the constitutional infirmities at play in Cooper are no longer present, and the ensuing search is both warranted and constitutional . Due to the existence of probable cause, the individual being subjected to a search is, in fact, a "suspect" as contemplated by the statute . Hough v. State , 620 S .E.2d 380, 383-84 (Ga. 2005) . 12 KRS 189A.103(1) requires "reasonable grounds" to believe that a violation of the DUI statute has occurred . To pass constitutional muster, "reasonable grounds" must equate at least. to probable cause . The Kentucky consent statute is clearly far more similar to that part of the Georgia statute addressed in Hough than that addressed in Cooper.5 The Georgia court's concerns about requiring probable cause could be satisfied in this case if the facts known to the officer at the time the blood test was done would support a probable cause belief that the Appellant had violated state DUI law . But in fact, at the suppression hearing, no testimony was taken. Instead, the Commonwealth summarized what occurred at the hospital in the 5 KRS 189A.103 provides in part: The following provisions shall apply to any person who operates or is in physical control of a motor vehicle or a vehicle that is not a motor vehicle in this Commonwealth: (1) He or she has given his or her consent to one (1) or more tests of his or her blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration or presence of a substance which may impair one's driving ability, if an officer has reasonable grounds to believe that a violation of KRS 189A.010(1) [operating a motor vehicle while under the influence of alcohol or other substance which impairs driving ability prohibited] or 189.520(1) [operating a vehicle not a motor vehicle while under the influence of alcohol or other substance which impairs driving ability prohibited] has occurred[ .] (3) The breath, blood, and urine tests administered pursuant to this section shall be administered at the direction of a peace officer having reasonable grounds to believe the person has committed a violation of KRS 189A.010(l) or 189.520(1) . (5) When the preliminary breath tests, breath tests, or other evidence gives the officer reasonable grounds to believe there is impairment by a substance which is not subject to testing by a breath test, then blood or urine tests, or both, may be required . . . . (Emphasis added.) 13 course of responding orally to~ AppcI1,111t's slippressMn Commonwea_ld'i ii-Jorrned the trial cmirt '111c r11c>IMII . that at III(,. ImSI)Ital 111c told Helton about implied consent, ~-md sllc didn't rc.1,t1sc, even 01migh she did not exactly consent either . The Commonwealth also iic>t.c-( ,l (liat slle "sort ()I' passed out" and closed her eyes when she was ;,.isked tc) giv(I being prepared for surgery on her skull and IOcial ('c)tltietlt. to~ a frNCIcIr-CS) . Commonwealth argued that by the plain reading ()l' t lw test. (she was 'f11C Skit ut.c, slIc had consented by virtue of having operated a vehicle within the Commonwealth, and that the test was done "kind of on the heels calf the blood test the hospital was doing anyways," and it did not involve any additionA intrusion . Finally, the Commonwealth concluded its argument by saying it. (lid Ilea believe this was a KRS 189A . 105(2)(b) situation where a warrant would 11e required because she did not refuse and she was not under <zrrest . Based on this argument by the Commonwealth, the trial court ruled that Helton had not withdrawn her consent or refused tc-sting of her blood, and ruled as a matter of law that she had consented . The trial court did not take any proof about what. the police knew at the time of the accident that gave them reasonable grounds to require such a test, and made no finding about whether there were reasonable grounds for such a blood test. Even though there is an apparent stipulation to the facts by defense counsel, who did not dispute them but only wanted to argue statutory construction, to make this a question of law, the trial court must apply all elements of the statute . Only by taking proof on all the necessary elements could the trial court establish whether the police officer had reasonable 14 grounds t c> regIIirc- a blood test_ . T1IC 1a-1<al CO III't a a arast 1<r1Ow n1 ()r°e tlI ~ aaI jctst tlatal the defendar-it was unconscious under I<hS ],'-')()A . 1()3(2) . While fc minor intrusion of <i blood test, it 1(-past under circa.aa7ast<alaces like these, is not r-inreasonable and tlic_lack ()l'<i mar rant is justified lay pan exigent-circl.anstances concern that the <alcolml cviciew-c in t.hc hl()o(l will I)c destroyed in a sl-ic~rt. period of time by t.hc litanian body's natLUral ability 1() metabolize alcohol, our statute (and the Constit.Lat .ion) require more . Specifically, the Kentucky statute requires "reasc~nahle grounds" to believe I fiat a person was driving under the influence bef()r(- a 1)1()od test can be done . When "reasonable grounds" is read to mean probable cause, the st_~at ltc' satisfies Schmer ber's requirement that that "intTtasiorl(1 . . . [is) jL1stified ira t-fIC circumstances" and that "the police were jLastifiCd in requiring (Appellant I tea submit to the blood test . . . ." 384 U.S . at, 763 . The record in this case, however, simply does not reveal whettaer the, officer had probable cause to believe that alcohol was involved itz the wreck . 1 ' If the blood test was done merely because there were fatalities, then it- runs ~1f0u1 of the same concerns the Georgia Supreme Court considered in Coo er: a lack of probable cause to conduct the search. While Schmerber recognizes that. 6 The dissent relies on the statement in Appellant's brief that "[tlhe Commonwealth certainly had belief that alcohol had been involved in the accident on August 26, 2006" to conclude that there was probable cause . However, a "belief" alone is insufficient to satisfy the rigors of probable cause, especially where no evidence that could support such a finding was put forth at the suppression hearing. As noted above, the trial court took no proof on what the officers knew at the time or what their belief was, thus it does not matter that the record now discloses that Appellant had been drinking that day. Moreover, an "admission" like this in a brief is more the product of loose use of language by appellate counsel rather than a true admission. That there was no evidence to support probable cause and no judicial finding of probable cause should control, not an inadvertent "admission ." 15 such a search does riot aut.ornatically viol~ttc the F()ttr1h Arrrcndrrterrt, givcrl the existence of exigent . circurrrstanccs, tlr ;t1 c"tse enrph~rsizcd 111,11 the 1<rcts c)f the case are determinative and that those Ltcts search . Kentucky's statute sat.isfics t heSC rlll1S1 he stich its i()_jtrs1il ,y the rCdrrirerylents by r-e(lt.riring "reasonable grounds," which this Co)trrt reods its r - c(lr.llr- Irlg 1)r'c)1),t1)lc' C<tt_ISC . When the officer does have reasonable gi-c)lands, t lic test play be done oil a person, even if she is unconscious, wit .hotit violating the li'ot .trth Arnerndmcnt . If, as in Sehmerber , the state can reclriire <a (;orl scic)u_s person, who has actually refused , to submit to the blood test due to exigent circtin-rstances ,and the existence of probable cause, then it makes no difference what a person's state of consciousness is . But this step is riot reached at all unless t he ollicer had probable cause to search in the first ply-tcc~ . Consequently, this Court's review c)f t he 1)loc)d test sc~rr-ch in this cease turns on whether the officer had probal)lc c~.iusc to believe thot Appellant had violated the DUI statutes when he requested the blood test. Untort:Lrnat.cly, that is not in the record, meaning that the trial court. did riot engage in the whole analysis necessary to decide Appellant's suppression motion . Conclusion The judgment is hereby vacated and this case is remanded for a new suppression hearing to determine whether the evidence establishes that the police had reasonable grounds to believe alcohol was involved in the accident . Minton, C .J . ; Abramson, Cunningham, Schroder and Venters, JJ ., concur . Scott, J ., dissents by separate opinion . SC:Or1', Alt hc>ugli 1 cc)rlcrlr mi , ill other grounds, 1 respectfully dissew from my esteeirled crl)i>>ioir il1flt hearing is required to show th"It tl-r(. troolwr INI(l <I retroactivC rC;Iscrr) ;1l)lc' grotrrlds tc> jristif;y testing Ms . Heltc~ri's blood alc~~hol level . 1 disscid hec<rrrsc Appellant: concedes in her brief th,,-it "Ital ic (_'ornmonwecilth ecrkiirily had belief tli<rt alcohol had been involved irr tlic icciderlt. on August 26111, 200) ." Ajhpcjlan t's Brief , at- pt; () . Thus, Appellant's <itfack pit trial and on appeal mis can constitutional and statutory grounds, not factual ones . Trial courts need the leeway to perfOrrn those trial tasks that they and counsel consider ~rppropriWe under the pertinent facts of each case. Hearings can matters conceded by counsel unduly interfere with this valuable discretion . The record shows that. AppelLint took her- cliildrcrr, (irr ~,idult: friend, and two other children swirriming . She consumed alcohol, resumcd driving, and drove her vehicle off the road . Her son and his young friends were killed ,ind the adult friend died later from her injuries . Appellant was accompanied to the hospital by the police who informed her of the effect of her refusal under KRS 189A. 105(a) . The officers perceived Appellant. to be in a stupor incapable of refusal and took a blood test under the implied consent of KRS 189A .103(2) . The reasonable grounds of drunk driving required by 189A .103(1) would appear satisfied by Appellant's concession as well as the circumstances that the police accompanied Appellant from the driver's seat of a horrific accident to the hospital where she was effectively uncommunicative ; not to mention that at the suppression hearing the Commonwealth informed the trial court that at the time the blood test was taken the officers informed Helton about implied 17 consent and t}mt slice (lid not refuse, bill her eyes . I, therefore, respectfully c isscrlt . .PISI of passed ()III" <IIIcl c~lc~sc~ri COUNSEL r Edward E . Dove 201 Vilest. Short. St rcet 310 Lexington 13iiilding Lexingtc :~rl, Kcn t Lrc'l{y 40507 COUNSEL FOR APPELLEE: Jack Conway Attorney Caeneral Joshua D. Farley Assistant Attorney General Attorney (general's Office Office of Criminal Appeals 1024 Capital Center Drive Frankfort, Kentucky 40601-8204 C~aurf of )firufurh~ 2008-SC-000141--MR MELISSA HELTON V APPELLANT ON APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE C . HUNTER DAUGHERTY, JUD(]E NO. 06-CR- 00275 COMMONWEALTH OF KENTUCKY APPELLEE ORDER The Commonwealth's petition for rehearing of the Opinion of the Court, rendered August 27, 2009, is hereby DENIED . On the Court's own motion, the opinion is hereby corrected on its face by substitution of the attached pages 1 and 13 in lieu of the original pages 1 and 13 . The purpose of this Order of Correction is to correct a typographical error and does not affect the holding of the original Opinion of the Court . All sitting. All concur . ENTERED: January 21, 2010. '~axyrrmQ (~aurf of ~iQxrfixxhv .-MR .41 2008-SC-0001 MELISSA HELTON APPELLANT ON APPEAL FROM JESSAMINE CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY, JUDGE NO. 06-CR-00275 COMMONWEALTH OF KENTUCKY APPELLEE ORDER OF CORRECTION On the Court's own motion, the Opinion of the. Court rendered August 27, 2009, as corrected on January 21, 2010, is hereby modified by substituting pages 1 and 13 of the opinion as attached hereto, in lieu of pages 1 and 13 of the opinion as originally rendered. Said modification corrects the number of the footnote on page 13 and does not affect the holding. ENTERED : January 26,2010 .

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