by Matt Clarke

The Supreme Court of Kentucky held that a refusal to submit to a warrantless blood test could not be used as evidence of guilt, for enhancement of a criminal penalty, or to show why the prosecution did not produce any scientific evidence of intoxication in a criminal prosecution for driving under the influence (“DUI”).

Police stopped Jared McCarthy after seeing him exit the parking lot of a bar and drive erratically. Based on results of a field sobriety test and McCarthy’s refusal to take a preliminary breath test, he was arrested and taken to a hospital where he was asked to submit to a blood test. McCarthy was informed that, under KRS 189A.105(2)(a), refusing a blood test could be used in court as evidence of violating KRS 1S9A.010, the DUI statute, and should he be convicted of DUI, his refusal would automatically double his minimum jail sentence. Nonetheless, McCarthy refused to submit to the blood test.

McCarthy filed a pretrial motion in limine to exclude any evidence of his refusal to take the blood test, citing Birchfield v. North Dakota, 136 S. Ct. 2106 (2016), in which the U.S. Supreme Court held that blood tests of drivers are not exempt from the Fourth Amendment’s search warrant requirement. The prosecutor argued that Birchfield does not apply to KRS 189A.105 because, unlike the statutes addressed in Birchfield, it does not create a criminal offense for refusing a breath test but merely enhances the criminal penalty. The prosecutor also argued that it is common knowledge that scientific tests of intoxication exists and the blood test refusal should be admitted, so that information could be used to explain to the jury why no such scientific evidence was presented. The trial court ruled that the blood test refusal could not be used to establish guilt or enhance punishment, but it could be admitted to show why the prosecutor did not present such evidence. Further, McCarthy could not argue before the jury that there was no blood test because the police failed to procure a search warrant for one.

The evidence against McCarthy was weak. The video-recorded field sobriety test did not definitively show intoxication, and the three passengers in the car testified that McCarthy was the designated driver and had not consumed alcohol. This included another person who had not consumed alcohol and said he would have driven had McCarty consumed any alcohol. There was no recording of the alleged erratic driving. The jury deadlocked, resulting in a mistrial. The second jury trial resulted in a conviction. McCarthy was sentenced to two years in prison. He appealed.

The court of appeals ruled that Birchfield applies to the case, barring the use of the refusal for a determination of guilt or punishment, and the prosecutor improperly commented on the refusal when the arresting police officer testified that he did not know whether he could get a search warrant.

McCarthy was represented by Assistant Public Advocated Kathleen Kallaher Schmidt and Erin Hoffman Yang on discretionary review before the Kentucky Supreme Court. Framing the issue as involving a motion to suppress evidence under the Fourth Amendment and applying the “harmless beyond a reasonable doubt standard,” the Court affirmed the judgment of the court of appeals.

The Court specifically ruled that the implied consent in KRS 189A.103(1) does not override the holding in Birchfield that a warrant is required to perform such an intrusive search as a blood test without consent. Further, Birchfield held that a defendant could not be convicted of a crime or otherwise penalized for refusing to submit to a warrantless blood test.

The Court explained that, under Birchfield, sentencing enhancement “is an unauthorized criminal penalty” and is thus prohibited. Consequently, the Court concluded that the trial and appellate courts were correct in holding that the refusal could not be used as evidence of guilt or for sentencing enhancement.

The Court then held that the court of appeals correctly determined that the trial court erred when it allowed the prosecutor to introduce McCarthy’s refusal to explain its lack of scientific evidence of McCarthy’s alleged intoxication. Permitting its introduction “through the back door … eviscerated the protections accorded McCarthy’s Fourth Amendment rights as recognized” in the Kentucky Supreme Court’s previous rulings on the admission of refusals of warrantless blood draws, according to the Court. Deno v. Commonwealth, 177 S.W. 3d753 (Ky. 2005); Coulthard v. Commonwealth, 230 S.W.3d 572 (Ky. 2007).

The Court noted that “the absence of scientific evidence was primarily the result of the Commonwealth’s own actions or rather inactions.” Police could have asked McCarthy to submit to a breath test, and a refusal would have been admissible. The police could also have sought a search warrant for the blood test. But they did neither. Thus, the “difficulty the Commonwealth found itself in with regard to an absence of scientific evidence was largely of its own doing,” observed the Court. The Court added that the trial court also compounded its error when, after erroneously allowing the admission of the refusal, it prohibited McCarthy from commenting on the failure to seek a search warrant.

The Court noted that there are serveral reasons a person might refuse to allow blood to be drawn, but in a DUI case, the jury is likely to infer guilt from a refusal regardless of the purpose for which it is admitted. Given the weak case against McCarthy, the Court concluded the error was not harmless beyond a reasonable doubt.

Accordingly, the Court affirmed the court of appeals and remanded the case to the trial court for further proceedings consistent with this opinion. See: Commonwealth v. McCarthy, 2021 Ky. LEXIS 131 (2021). 

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