GREG FARMER v. COMMONWEALTH OF KENTUCKY
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RENDERED:
JULY 15, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000865-MR
GREG FARMER
v.
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE ROBERT E. GILLUM, JUDGE
ACTION NO. 03-CR-00093
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment pursuant to
a conditional guilty plea to two counts of second-degree assault
stemming from an automobile collision.
Appellant argues that
the toxicology results of a blood/urine test should have been
suppressed because he only gave his consent to have his blood
tested for alcohol, not controlled substances, pursuant to a
consent form presented to him at the hospital.
We adjudge that
appellant’s initial general consent to police was not limited by
the consent form subsequently submitted to appellant by the
hospital.
Accordingly, the trial court properly found that
appellant consented to the drug testing of his blood and urine.
Thus, we affirm.
On October 6, 2002, Officer Kendra Wilson of the
Pulaski County Sheriff’s Department responded to a report of a
motor vehicle accident.
Upon arriving at the scene, appellant,
Greg Farmer, was sitting alongside the road.
Farmer had been
driving and was the sole occupant of one of the cars, although
he did not own the car.
Angela and Daniel Baker were in the
other car involved in the accident, and both were injured in the
collision.
Officer Wilson found a red straw in the car Farmer
had been driving, which Wilson suspected had been used for
ingesting a controlled substance.
Indeed, the straw later
tested positive for traces of oxycodone and hydrocodone.
Upon
discovering the straw, Officer Wilson asked Farmer if he would
consent to tests of his blood and urine.
Farmer stated that he
would agree to the tests.
Thereafter, Officer Wilson gave a blood and urine test
kit to an emergency medical worker at the scene to be
administered by hospital emergency personnel at the hospital
where Farmer was to be taken.
Officer Wilson testified that she
gave the kit to the emergency medical worker because Wilson had
to stay at the scene of the collision.
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Farmer was thereafter
transported by ambulance to Lake Cumberland Regional Hospital
(“LCRH”).
According to Officer Wilson, Farmer was not under
arrest or in police custody at the scene of the accident or at
the hospital.
Once at the hospital, Jennifer Latham, a
registered nurse who worked in the emergency room, presented
Farmer with a blood-alcohol test consent form.
The form
presented to Farmer was a standard consent form that the
hospital used to check a patient’s blood-alcohol content when
ordered by a physician or police.
According to Latham, it is
the only consent form used by the hospital to test a patient’s
blood or urine for alcohol or drugs.
The form was entitled
“POLICY FOR CONSENT OF BLOOD ALCOHOL”, and made no mention of
testing the patient’s urine or testing the patient’s blood for
anything but alcohol.
When asked by Latham if he would agree to
the information contained in the form, Farmer verbally responded
that he would.
Latham then signed Farmer’s name to the form.
Thereupon, Latham took a blood sample from Farmer and a urine
sample from his catheter bag.
Officer Wilson picked up Farmer’s blood and urine
samples at the hospital that same day and mailed the samples to
the Kentucky State Police (“KSP”) crime lab.
never spoke with Farmer at the hospital.
Officer Wilson
The results of the KSP
tests revealed that Farmer had cannabinoid metabolites
(marijuana) in his urine and Citalopram, a mood altering drug,
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in his blood and urine.
No alcohol, oxycodone or hydrocodone
were found.
As a result of the motor vehicle collision, Farmer was
indicted on March 26, 2003 for:
operating a motor vehicle under
the influence of alcohol or drugs, second offense (“DUI II”);
operating a motor vehicle while license suspended or revoked for
DUI, first offense; failure to maintain liability insurance on a
motor vehicle; and on two counts of first-degree assault
relative to the injuries sustained by Angela and Daniel Baker.
The court subsequently dismissed the charges for operating a
motor vehicle on a suspended or revoked license and failure to
maintain liability insurance on a motor vehicle.
On May 28, 2003, Farmer filed a motion to suppress the
results of the toxicology tests on his blood and urine.
After a
full suppression hearing on the motion, the court denied the
motion on February 11, 2004.
Pursuant to a plea agreement, Farmer entered a
conditional Alford plea to two counts of second-degree assault
in exchange for the Commonwealth’s agreement to amend the firstdegree assault charges to second-degree assault, to dismiss the
remaining charge of DUI II, and to recommend a concurrent
sentence of ten years’ imprisonment on each assault charge.
April 22, 2004, Farmer was sentenced according to the
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On
Commonwealth’s recommendation to a total of ten years in prison.
This appeal by Farmer followed.
Farmer’s first argument is that the Commonwealth
exceeded the scope of his consent to search by testing his blood
and urine for controlled substances.
Farmer contends that since
the consent form at the hospital was limited to blood-alcohol
testing, the Commonwealth could not lawfully test his blood for
controlled substances or test his urine at all.
The taking of a blood or urine sample is considered a
search of the person and subject to Fourth Amendment and state
constitutional limitations on searches.
Schmerber v.
California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908
(1966).
Consent to search is an exception to the warrant
requirement.
Commonwealth v. Erickson, 132 S.W.3d 884 (Ky.App.
2004); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041,
36 L. Ed. 2d 854 (1973).
The Commonwealth has the burden of
showing by a preponderance of the evidence, through clear and
positive testimony, that valid consent to search was obtained.
U.S. v. Riascos-Suarez, 73 F.3d 616 (6th Cir. 1996), cert.
denied, 519 U.S. 848, 117 S. Ct. 136, 136 L. Ed. 2d 84 (1996).
Even when a search is authorized by consent, the scope of the
search is limited by the terms of its authorization.
Shamaeizadeh v. Cunigan, 338 F.3d 535 (6th Cir. 2003), cert.
denied, 541 U.S. 1041, 124 S. Ct. 2159, 158 L. Ed. 2d 729
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(2004).
“The standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of ‘objective’
reasonableness – what would the typical reasonable person have
understood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1804, 114
L. Ed. 2d 297, 302 (1991) (quoting Illinois v. Rodriguez, 497
U.S. 177, 183-189, 110 S. Ct. 2793, 2798-2802, 111 L. Ed. 2d 148
(1990)).
In the instant case, according to the testimony of
Officer Wilson, Farmer verbally gave his general consent to
tests on his blood and urine.
Farmer did not indicate any
limitation on the type of tests to be run when he gave his
verbal consent to Wilson.
In viewing the language of the
consent form subsequently signed by Farmer at the hospital, it
is clear that the form was not a document submitted by police,
but rather by the hospital for the hospital’s protection.
The
form makes reference to “protect[ing] LCRH employees from
charges of assault and battery,” and disclaims liability of the
hospital and its employees “arising out of the taking of the
blood sample.”
The form was presented to Farmer by Jennifer
Latham, a nurse in the emergency room, and Officer Wilson, who
picked the samples for the police, had no contact with Farmer at
the hospital.
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The Court of Appeals of Georgia had a similar issue
before it in State v. Lewis, 233 Ga.App. 390, 504 S.E.2d 242
(1998), wherein the DUI suspect gave her consent to police at
the scene of the accident, pursuant to that state’s implied
consent notice, to tests of her blood and urine for alcohol or
drugs.
Later, when the suspect was taken to a local hospital
for the tests, she signed a form required by the hospital
consenting to having a blood sample taken for alcohol testing.
As in the present case, the hospital form did not mention
testing for controlled substances.
Pursuant to tests performed
by the state’s crime lab, the suspect’s blood and urine tested
positive for marijuana.
Like the instant case, the suspect
argued that the results of the drug tests on her blood and urine
should be suppressed because the consent form she signed at the
hospital only gave consent for blood-alcohol testing.
The Court
ruled that the lower court erred in granting the suppression
motion, reasoning:
Whatever the form prepared by the hospital
may have said or led Lewis to believe, it
had no bearing on the State’s right to test
Lewis’ blood and urine for alcohol or drugs
pursuant to the consent she gave after
receiving the required implied consent
notice. . . . Nothing on the form prepared
by the hospital, including the statement
signed by the officer, could be construed as
action taken by the State in violation of
the statutory requirements of implied
consent.
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Id. at 244 (citations omitted).
A trial court’s findings of fact pursuant to a
suppression motion will not be overturned unless they are
clearly erroneous i.e. not supported by substantial evidence.
RCr 9.78; Commonwealth v. Banks, 68 S.W.3d 347 (Ky. 2001); Diehl
v. Commonwealth, 673 S.W.2d 711 (Ky. 1984).
Although Farmer was
not under arrest at the time of consent and thus Kentucky’s
implied consent provisions had no bearing in the present case,
Farmer did give police his express general consent to tests of
his blood and urine.
In our view, the subsequent consent form
submitted by the hospital did not operate to withdraw his
earlier consent to police or limit his consent to just bloodalcohol testing.
Accordingly, the trial court’s finding that
Farmer consented to the drug testing of his blood and urine was
not clearly erroneous.
Farmer’s remaining argument is that the trial court
erred in not addressing Farmer’s motion to exclude the urine
test results based upon their unfairly prejudicial effect.
Farmer argued at the suppression hearing that the results of his
urine test, which revealed the presence of marijuana, were not
sufficiently probative so as to outweigh the prejudicial impact
of such evidence.
Hence, under KRE 403, those test results
should have been excluded.
The trial court failed to address
this argument in its opinion and order on the suppression
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motion.
However, Farmer did not bring this failure to the
attention of the trial court as required by CR 52.04.
13.04.
See RCr
Accordingly, the issue was waived.
For the reasons stated above, the judgment of the
Pulaski Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Justin Thomas Genco
Stanford, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Clint Evans Watson
Assistant Attorney General
Frankfort, Kentucky
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