FERGUSON (ELIZABETH) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 24, 2011; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001031-DG
ELIZABETH FERGUSON
v.
APPELLANT
ON DISCRETIONARY REVIEW FROM CARROLL CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 09-XX-00003
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE, CAPERTON AND WINE, JUDGES.
CAPERTON, JUDGE: Elizabeth Ferguson appeals from an order of the Carroll
Circuit Court affirming the ruling of the Carroll District Court denying Ferguson’s
motion to suppress the results of a breathalyzer test due to an alleged violation of
KRS 189A.105(3). After a thorough review of the parties’ arguments, the record
and the applicable law, we agree with Ferguson that her motion to suppress should
have been granted. Accordingly, we reverse the Carroll Circuit Court’s order and
remand this matter for further proceedings.
In the early morning hours of April 19, 2009, a vehicle driven by
Ferguson was stopped by Trooper Brandon Maupin of the Kentucky State Police
for not having any tail lights. Ferguson was administered field sobriety tests and a
portable breath test, after which Ferguson was placed under arrest and charged
with no tail lights and operating a motor vehicle under the influence of alcohol
(“DUI”). Trooper Maupin then transported Ferguson to the Carroll County
Detention Center. On the way to the detention center, Ferguson used her cellular
telephone with Trooper Maupin’s permission to call her roommate, who had been
in the vehicle with Ferguson at the time of the traffic stop.
Once at the detention center, Trooper Maupin escorted Ferguson into
a room containing a breathalyzer machine. A deputy jailer joined Ferguson and
Trooper Maupin and confiscated Ferguson’s purse containing her cell phone.
Trooper Maupin then read Ferguson her rights under the Kentucky implied consent
laws. It was at this point that Ferguson was first informed of her right under KRS
189A.105(3) to an opportunity to attempt to contact and communicate with an
attorney during the ten to fifteen minutes immediately preceding the administration
of the breathalyzer test.
After being advised of this right, Ferguson requested to speak with her
attorney prior to submitting to the breathalyzer test. Ferguson had an attorney in
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Lexington, Kentucky, who had instructed her to call any time she had a problem.
Ferguson requested to contact said attorney. Ferguson informed Trooper Maupin
that her attorney only used a cell phone, as opposed to a landline, and that her
attorney’s cell phone number was stored in Ferguson’s cell phone. Ferguson
requested access to her cell phone to call her attorney but the deputy jailer
prohibited such use because of a jail policy against detainees’ use of cell phones.
Ferguson was then provided access to a collect-call only telephone on the wall of
the jail. Ferguson attempted to use the telephone but to no avail because she could
not collect-call her attorney’s cell phone. Ferguson submitted to the breathalyzer
test and produced a result of 0.092.
Ferguson moved to suppress the results of the breathalyzer test before
the Carroll District Court but the court denied her motion. Ferguson entered a
conditional guilty plea and appealed the denial of her motion to suppress to the
Carroll Circuit Court. The Carroll Circuit Court affirmed the district court’s
relying on Bhattacharya v. Commonwealth, 292 S.W.3d 901 (Ky.App. 2009). The
circuit court further noted that Ferguson had the opportunity to use her cell phone
to contact her attorney while in Trooper Maupin’s cruiser, and the fact that the jail
would not provide access to her cell phone was not a reason to overturn the
decision of the district court. It is from this judgment that Ferguson now appeals.
On appeal Ferguson argues that she was denied her right under KRS
189A.105(3), and that said denial requires that her breathalyzer result be
suppressed. In actuality, Ferguson’s argument presents two questions: (1) was her
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right under KRS 189A.105(3) violated, and, (2) if so, does the violation require
suppression? The Commonwealth counterargues that Ferguson’s right under KRS
189A.105(3) was not violated. With these arguments in mind, we now turn to the
applicable law.
At the outset, we note that our appropriate standard of review is set
forth in Bhattacharya v. Commonwealth, 292 S.W.3d 901, 903 (Ky.App. 2009),
wherein this Court stated:
If the trial court's findings of fact are supported by
substantial evidence, then they are conclusive. We
conduct de novo review of the trial court's application of
the law to the facts. We review findings of fact for clear
error, and we give due weight to inferences drawn from
those facts by resident judges and local law enforcement
officers.
Id. at 903 (internal citation omitted).
At issue here is KRS 189A.105(3) which states:
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
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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
section.
KRS 189A.105(3). Since the proper interpretation of KRS 189A.105(3) is purely a
legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181
(Ky.App. 2003). As noted in Long:
On review, it is our duty to construe the statute so as to
effectuate the plain meaning and unambiguous intent
expressed in the law. Moreover, we understand that the
judiciary is not at liberty to add or subtract from the
legislative enactment . . . or to attempt to cure any
omissions.
Id. at 181 (internal quotations and citations omitted).
This Court in Bhattacharya, supra, addressed KRS 189A.105(3) and held
that Bhattacharya’s motion to suppress was correctly denied when “Bhattacharya
was given an opportunity to attempt to contact and communicate with an attorney,
even if [the arresting officer] was the person dialing the telephone numbers that
Bhattacharya requested to be dialed.” Id. at 904. In Bhattacharya, the arresting
officer provided Bhattacharya with a local telephone directory wherein attorneys’
telephone numbers were listed. The arresting officer then “insisted on
Bhattacharya telling him which numbers he wanted to dial, and [the arresting
officer] dialed the two telephone numbers provided by Bhattacharya and listened
as the telephone rang, but no one answered either call.” Id. at 903.
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The circuit court and the Commonwealth interpret Bhattacharya as being
wholly dispositive of the case sub judice. We disagree. Unlike Bhattacharya,
Ferguson knew which attorney she wished to contact and had the phone number in
her cell phone.1 In today’s technologically advanced society, many people store
important contact information in their cell phones. It is not unreasonable to require
some minimal police assistance, such as here, by providing reasonable access to a
cell phone in the immediate area for the limited purpose of procuring an attorney’s
phone number or contacting said attorney in order to exercise one’s right as
provided by KRS 189A.105(3). See Long at 183.2
In order to exercise the right contained in KRS 189A.105(3), Ferguson
required access to her attorney’s phone number contained on her cell phone and
1
Moreover, we are unclear as to whether Ferguson was even provided a local telephone book
since the Commonwealth failed to cite to the record to support its assertion that she was provided
one. Absent specific citations as required by Kentucky Rules of Civil Procedure (CR) 76.12, we
are required to assume that the evidence supported the findings of the lower court. See Porter v.
Harper, 477 S.W.2d 778 (Ky.1972). See also Smith v. Smith, 235 S.W.3d 1, 5 (Ky.App. 2006),
where this Court addressed a similar issue:
Carolyn is correct that it is not our responsibility to search the
record to find where it may provide support for Jim's contentions.
But rather than striking Jim's brief, we choose to give little
credence to the arguments by either party that are not supported by
a conforming citation to the record.
Smith at 5.
2
In Bhattacharya, we found that where a detainee was interested in contacting an attorney, a
phone book was sufficient for locating a number. In contrast, the detainee in the matter sub
judice had the phone number of her attorney stored in her cell phone and advised the officer that
her attorney only received phone calls on a cell phone. Certainly in today’s society, ubiquitous
use of cell phones makes the request to retrieve a phone number from a cell phone a reasonable
request, and limiting an individual to a phone that makes collect-only phone calls places an
impermissible limitation on the right to attempt to contact an attorney. Few attorneys are in their
offices twenty-four hours a day, thus a call to an attorney’s cell phone is reasonable. Also,
expecting an attorney to accept a collect call, in such a situation, from a jailhouse phone is not
reasonable. We are not saying that the officer need go beyond what is reasonably accessible in
the immediate area to permit an individual to attempt to contact an attorney.
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should have been given the opportunity to retrieve the number and provided a
telephone to contact said attorney. Thus, Ferguson’s right contained in KRS
189A.105(3) was violated when, based on the totality of the circumstances, she
was not provided with the means capable of contacting her attorney. See Long at
183. This is not to say that Ferguson had the right to maintain physical access to
her cell phone but only such access as would be necessary, in the presence of
Trooper Maupin and jail personnel, to retrieve her attorney’s telephone number.
We believe that either the deputy jailer or Trooper Maupin were capable of either
monitoring Ferguson’s use of her cell phone to obtain her attorney’s phone number
or of obtaining the phone number themselves from Ferguson’s cell phone.
Providing such limited access would allay the Commonwealth’s security
fears concerning cell phone and data usage, such as taking pictures. Further, in
Bhattacharya, the officer dialed the phone and listened for an answer. The same
procedure could have been utilized in this situation. We understand that in our
technologically advanced society, certain telephone or cellular phone numbers may
not accept calls with reversed charges/collect calls. This requires that Ferguson be
furnished with a telephone capable of connecting with the number to be dialed;
although, any charges for such connection would be at Ferguson’s expense. It is
our opinion that the circuit court incorrectly determined that Ferguson’s right was
not violated. Accordingly, we must reverse.
We also disagree with the circuit court’s statement that Ferguson had the
opportunity to use her cell phone to contact her attorney while in Trooper
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Maupin’s cruiser. Ferguson was informed of her right under KRS 189A.105(3)
after she exited the cruiser and did not have access to her cell phone. Without
Ferguson’s being informed, i.e., knowing of her right prior to the loss of her cell
phone, she could not waive her right under KRS 189A.105(3). See Delacruz v.
Commonwealth, 324 S.W.3d 418, 420 (Ky.App. 2010). Moreover, the right
contained in KRS 189A.105(3) is limited to “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 . . . .” KRS 189A.105(3).
Thus, the circuit court incorrectly determined that Ferguson’s ability to use her cell
phone while in the cruiser satisfied her right under KRS 189A.105(3).
In addressing the second issue, whether the violation requires
suppression, we review KRS 189.105(3). That statute states, “Inability to
communicate with an attorney during this period [preceding the tests] 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.”
Certainly the inability of Ferguson to contact and
communicate with an attorney did not relieve her of the obligation to undergo the
tests. However, it is just as certain that the sentence preceding the above-quoted
sentence granted Ferguson the right to communicate with an attorney,3 and by
virtue of state action Ferguson’s right to attempt to contact her attorney was
frustrated.
3
See discussion, supra.
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While the above-quoted sentence could be read to allow state action to
eviscerate the right to attempt to contact and communicate with an attorney, we
believe that this would be a strained reading of the statute and instead find that
once the legislature granted the right to attempt to contact and communicate with
an attorney, it did not intend for the succeeding sentence to render the right
meaningless. Therefore, we find that Ferguson’s right to contact and communicate
with her attorney was frustrated by state action, and, thus, the trial court erred in
not suppressing the results of all tests conducted pursuant to KRS 189A.
In light of the aforementioned, we reverse the circuit court’s affirmance of
the district court’s denial of Ferguson’s motion to suppress and remand this matter
for further proceedings not inconsistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward M. Bourne
Owenton, Kentucky
James C. Monk
Special Assistant Attorney General
Carrollton, Kentucky
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