LITTERAL (MELVIN P) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
ORDERED PUBLISHED BY SUPREME COURT: APRIL 15, 2009
Commonwealth of Kentucky
Court of Appeals
MELVIN P. LITTERAL
ON DISCRETIONARY REVIEW FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 07-XX-00037
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: ACREE, CLAYTON, AND KELLER, JUDGES.
ACREE, JUDGE: Melvin Litteral, who entered a conditional guilty plea to the
charge of driving under the influence of alcohol, appeals from an order of the
Fayette Circuit Court affirming the district court’s denial of a motion to suppress
his breathalyzer test results. Litteral contends that the test results should have been
thrown out because the test was administered after he was denied the right of
private consultation with his attorney as authorized by Kentucky Revised Statutes
(KRS) 189A.105(3) and Kentucky Rules of Criminal Procedure (RCr) 2.14. We
Our review of a suppression ruling:
requires a two-step determination. . . . The factual
findings by the trial court are reviewed under a clearly
erroneous standard, and the application of the law to
those facts is conducted under de novo review.
Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky. 2007), citing Welch v.
Commonwealth, 149 S.W.3d 407 (Ky. 2004). The decision below did not, and our
review does not, require a resolution of the few factual disparities in the parties’
statements of the facts. Kentucky law, even as applied to Litteral’s version of the
facts, requires that we affirm the Fayette Circuit Court.
Officer Clay Combs of the Lexington Metro Police Department
arrested Litteral on suspicion of DUI and transported him to the Fayette County
Detention Center where his blood alcohol content was to be tested. In accordance
with KRS 189A.105, Officer Combs described the consequences of refusing
testing and of Litteral’s right to attempt contact with an attorney before the test was
administered. Litteral contacted his sister who is a licensed attorney practicing in
Georgetown, Kentucky. Officer Combs remained in close proximity to Litteral
while he was attempting to communicate with his attorney.
By statute, the privilege of driving a vehicle in Kentucky carries with
it the implied consent of every driver to testing for alcohol concentration which
may impair driving ability. KRS 189A.103(1). Another statute requires that a
driver suspected of DUI must be informed of the negative implications of refusing
to submit to such testing. KRS 189A.105(2)(a). Additionally, the same statute
requires that such a driver be informed of the right to be “afforded an opportunity
of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to
contact and communicate with an attorney[.]” KRS 189A.105(3). Litteral argues
that he was denied this right and that such denial requires suppression of the
breathalyzer test subsequently administered. We believe Litteral is arguing for a
greater right to counsel than the Legislature intended to allow.
The implied consent law was originally enacted by our Legislature in
1968 as KRS 186.565. Washburn v. Commonwealth, 433 S.W.2d 859, 861 (Ky.
1968). Our former Court of Appeals soon after held that “the taking of blood and
breath samples for analysis were not critical stages of a prosecution and the denial
of the right to have counsel present at such procedures did not constitute a
violation of the Sixth Amendment of the Constitution of the United States.”
Newman v. Hacker, 530 S.W.2d 376, 377 (Ky. 1975)(no right to have counsel
present at the time a breathalyzer test is administered.). A few years later, when a
law enforcement officer refused to allow a driver suspected of DUI even to
telephone his attorney, this Court held that no right of the suspect was affected.
Elkin v. Com., Dept. of Transp., Bureau of Vehicle Regulation, 646 S.W.2d 45
(Ky.App. 1982). Building upon Newman, we said there was no right even “to
consult counsel prior to deciding whether to submit to the requested breathalyzer
test[,]” finding “no real distinction between the” facts in Newman and those then
before the Court. Elkin at 46-47; see also, Com. Transp. Cabinet Dept. of Vehicle
Regulation v. Cornell, 796 S.W.2d 591, 594 (Ky.App. 1990)(in Elkin, “[t]his Court
ruled that there is no distinction between the right to consult an attorney before
submitting to a test and the right to have an attorney present during the test.”).
In 1991, KRS 186.565 was repealed and replaced by portions of KRS
189A.103. The consequences of refusing to submit to testing were addressed in
KRS 189A.105(2). In 2000, the Legislature added a very limited right to attempt
contact with an attorney. It is that provision that is at issue before us. In pertinent
part, the provision reads as follows:
During the period immediately preceding the
administration of any test, the person shall be afforded
an opportunity of at least ten (10) minutes but not more
than fifteen (15) minutes to attempt to contact and
communicate with an attorney and shall be informed of
this right. Inability to communicate with an attorney
during this period shall not be deemed to relieve the
person of his obligation to submit to the tests and the
penalties specified by KRS 189A.010 and 189A.107 shall
remain applicable to the person upon refusal. Nothing in
this section shall be deemed to create a right to have an
attorney present during the administration of the tests,
but the person's attorney may be present if the attorney
can physically appear at the location where the test is to
be administered within the time period established in this
KRS 189A.105(3)(emphasis supplied).
Litteral’s only complaint is that he was unable to consult privately
with his attorney. However, we believe the highlighted language was purposefully
crafted. The “right” described is very circumscribed. It is merely the right to “an
opportunity . . . to attempt to contact and communicate with an attorney[.]” Id.
The statute specifically avoids creating a right to have counsel present. This is far
short of the right to private consultation with an attorney. If such private
consultation was intended, the Legislature could easily have granted that right.
We believe the Legislature was mindful of the requirement, which it
previously incorporated into the legislation, that breathalyzer testing be permitted
“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.” KRS 189A.103(3)(a).
The purpose of this observation period is to assure that the test “subject shall not
have oral or nasal intake of substances which will affect the test.” 500 Kentucky
Administrative Regulations (KAR) 8:030 Section 1(1). Considering that our
Courts previously held the test subject was entitled to no contact with legal
counsel, we believe the Legislature intended only to allow such right as would not
infringe upon the Commonwealth’s need to obtain accurate evidence regarding a
violation of KRS 189A.010.
The circuit court was correct to quote the admonition contained in a
Kentucky treatise on DUI law that:
[t]here can be little question that the defendant is not
entitled to privacy as the conversation with the attorney is
taking place during the 20-minute observation period. . . .
The defense counsel will have to be artful in eliciting
“yes” or “no” answers to specific areas in advising the
Billingsley and Zevely, Kentucky Handbook Series, Driving Under the Influence
Law, § 12:11. We are convinced that the purpose of this very circumscribed right
of access to counsel was to allow independent confirmation of the information
conveyed by the law enforcement officer – and then only in a way that does not
impact the accuracy of the test itself.
It is significant that Litteral’s motion sought only to suppress the
results of the breathalyzer test. The Commonwealth did not attempt to offer into
evidence anything Litteral said during his conversation with his attorney.
Consequently, there is no need to comment upon the admissibility of such
evidence. However, with regard to suppressing the test results obtained after the
subject was denied access to private consultation with an attorney, the Supreme
Court has shed considerable light.
In Cook v. Commonwealth, 129 S.W.3d 351(Ky. 2004), the arresting
officer “seriously misconstrued the meaning of the implied consent statute” and
told a DUI suspect “if you take the test you get a lawyer and if you don’t take the
test you don’t get a lawyer.” Id. at 358. The Supreme Court had no trouble
agreeing with Cook that the officer was clearly wrong, stating: “The statute clearly
provides that a person has a right to at least attempt to contact an attorney before
the administration of the test.” Id. (emphasis in original). This mistake, argued
Cook, justified suppressing the test results. The Court disagreed, noting that Cook
“did not consent to the taking of his blood sample. Rather, the sample was
obtained involuntarily pursuant to a search warrant.” Id. Consequently, the
Supreme Court affirmed the denial of Cook’s suppression motion.
Then, however, the Court stated in dicta that Cook would have “a
better argument if he had actually consented to the blood tests and was claiming
that the violation of the statute negated his consent.” Id. (emphasis supplied).
Though Litteral is now presenting this so-called “better argument,” we do not
believe it prevails. Instead, we agree with Justice Keller’s view that, in fact, no
such “better argument” exists. Justice Keller’s view, expressed in his concurring
opinion in Cook, is worthy of extended quotation:
I emphatically disagree with the majority’s suggestion
that Appellant’s claim for suppression of the blood test
results “would be a better argument if he had actually
consented to the blood tests and was claiming that the
violation of the statute negated his consent.” [footnote
omitted] Of course, the majority's commentary regarding
a hypothetical factual situation wholly distinct from the
one actually presented in the case at bar is nothing more
than obiter dictum. My primary concern, however, is
that the obiter dictum in question is also inaccurate. This
theoretical “better argument” for suppression of alcohol
concentration results – which, as I understand it, would
be premised upon a claim that the suspect’s decision to
submit to testing was involuntary because of a denial of
KRS 189A.105(3)’s statutory right to counsel – would be
no “better” than, and, in fact, would be just as deficient
as, Appellant’s own argument.
Just two years ago, in Commonwealth v.
Hernandez-Gonzalez, [72 S.W.3d 914 (Ky. 2002)] this
Court shut the door on this allegedly “better argument”
when we recognized that a DUI suspect has already
impliedly consented to “one (1) or more tests of his
blood, breath, and urine, or combination thereof” [KRS
189A.103(1)] simply by operating a vehicle within
Kentucky “if an officer has reasonable grounds to believe
that a violation of KRS 189A.010(1) or 189.520(1) has
occurred.” [Id.] This Court observed in HernandezGonzalez that “[t]he 2000 amendment of [KRS
189A.103(1)] to read ‘has given his consent’ makes it
unmistakable that a suspected drunk driver must submit
to a test to determine blood alcohol concentration.”
[Hernandez-Gonzalez at 915] We thus held that
inaccuracies in the “pre-testing warnings” established in
the same Act that created KRS 189A.105(3)’s right to
counsel could not render a DUI suspect’s submission to
testing involuntary because, “as consent is implied by
law, one cannot claim coercion in consenting to a test.”
[Id. at 916] Accordingly, the implicit premise upon
which the majority opinion’s supposed “better argument”
rests, i.e., that a separate “voluntariness” inquiry is
appropriate when a DUI defendant raises questions
regarding the process leading up to his or her decision to
roll up his or her sleeve, is a myth that was debunked in
Hernandez-Gonzalez. And, the assertion that a police
officer’s conduct can somehow negate a DUI suspect’s
decision to submit to testing simply misses the point of
implied consent. In my view, therefore, today’s majority
opinion does the Bench and Bar a disservice with its
obiter dictum that ignores this Court’s prior precedent
and invites litigants to argue a theory that this Court has
Cook, 129 S.W.3d at 366-67 (Keller, J., concurring). Litteral has accepted this
errant invitation; however, we reject the argument.
Additionally, we note that even the majority opinion in Cook
undermines this “better argument” by citing Beach v. Commonwealth, 927 S.W.2d
826 (Ky. 1996). Cook at 358. In Beach, the Supreme Court said:
Exclusion of evidence for violating the provisions of the
informed consent statute is not required. It has been held
in Kentucky and elsewhere that in the absence of an
explicit statutory directive, evidence should not be
excluded for the violation of provisions of a statute where
no constitutional right is involved. See Little v.
Commonwealth, Ky., 438 S.W.2d 527 (1968). . . .[T]he
overall purpose of the legislation was to facilitate
obtaining evidence of driving while under the influence.
KRS 446.080(1) provides that all statutes of this state
shall be liberally construed with a view to promote their
objects and to carry out the intent of the legislature. . . .
[T]he statute contains no explicit or implicit directive
from the General Assembly that requires exclusion of
evidence obtained. The United States Supreme Court has
held that a blood test does not violate the Federal Due
Process Clause, the Fifth Amendment against selfincrimination, the Sixth Amendment right to counsel or
the Fourth Amendment right to unlawful search and
seizure. Schmerber v. California, 384 U.S. 757, 86 S.Ct.
1826, 16 L.Ed.2d 908 (1966).
Exclusion of evidence for violating the provisions
of the implied consent statute is not mandated absent an
explicit statutory directive.
Beach at 828.
Finally, we note that the statute provides substantial limitation on the
opportunity to contact and communicate with an attorney.
Inability to communicate with an attorney during this
period shall not be deemed to relieve the person of his
obligation to submit to the tests[.]
KRS 189A.105(3). We interpret “[i]nability to communicate” to include the
inability of the DUI suspect and his counsel to successfully employ
communications techniques such as described in the DUI handbook. See
Billingsley and Zevely, supra.
Litteral refers us to decisions from sister states in which courts found
a driver suspected of driving under the influence to be entitled to consult privately
with an attorney prior to the administration of a blood alcohol test. We believe
these cases are distinguishable. Some interpret implied consent laws that still use
the phrase “is deemed to have consented,” or similar language, replaced by our
Legislature in 2000 with more definitive “has given his consent” language – a
development deemed significant in Justice Keller’s concurrence in Cook. See
Brosan v. Cochran, 516 A.2d 970 (Md. 1986)(interpreting Maryland Code,
Transportation, § 16-205.1(a)(2)); State v. Durbin, 63 P.3d 576 (Or.
2003)(interpreting Oregon Revised Statutes § 813.100(1)); Farrell v. Anchorage,
682 P.2d 1128 (Alaska Ct.App. 1984)(interpreting Alaska Statutes § 12.25.150(b));
see also Alaska Statutes § 28.33.031(by which defendant “is considered to have
given consent” to testing).
Additionally, in State v. Durbin, the Oregon court was interpreting a
right to counsel under Oregon’s constitution, not a right to attempt contact with
counsel as circumscribed as that granted by KRS 189A.105(3). As noted above,
since 1975 our highest court has held there was no constitutional basis for such a
right at this stage of the proceedings. Newman, supra.
In the final case cited by Litteral, State v. Holland, 711 P.2d 592
(Ariz. 1985), there was no justifiable reason for the officer to be present while the
subject consulted his counsel. The Arizona court held that Holland had a right to
confidential consultation with his counsel because “it did not impair the
investigation or the accuracy of a subsequent breath test.” Id. at 595. In the case
before us, Officer Combs’ presence was mandated by KRS 189A.103(3)(a) to
assure the accuracy of the test.
For all of the foregoing reasons, the order of the Fayette Circuit Court
BRIEF FOR APPELLANT:
John E. Cornett
BRIEF AND ORAL ARGUMENT
Melissa Moore Murphy
Assistant County Attorney
ORAL ARGUMENT FOR