The Richmond Register

Crime

May 28, 2012

Circuit court issues writ prohibition on district judge's ruling

RICHMOND — A Madison Circuit Court judge has  ruled that Madison District Judge Earl Ray-Neal cannot throw out evidence in drunken-driving cases when a blood test was taken first.

Assistant Madison County Attorney Jud Patterson filed the action against Neal in February, asking the circuit court to issue a "writ of prohibition," or a judicial order prohibiting Neal "from ruling that a police officer must first attempt a breath test in cases where there’s no evidence of intoxication other than alcohol," Patterson wrote in the motion.

In addition, a stay was ordered on the current drunken-driving case, Commonwealth v. Timothy W. Buster, in which the issue had again arisen about blood and breath testing. A Richmond police officer tried to give Buster, 25, a blood test prior to a breath test when Buster was charged Sept. 8 with second-offense driving under the influence of alcohol. Buster refused and was charged with aggravated DUI, which carries stiffer penalties.

The RPD officer believed the breath test device at the Madison County Detention Center was not working properly.

In a 2008 DUI case, Neal ordered the blood test result be thrown out as evidence after the suspect, Michael E. Neville, was taken directly to the hospital for the test even though he was not injured or ill.

“The United States Supreme Court has determined that (the) Fourth Amendment prohibits compelled intrusions into (the) body for blood to be analyzed for alcohol content if intrusions are not justified in the circumstances ...” Neal said in the judicial order from the 2008 case.

Neal also found the blood test in the Neville case violated the state constitution.

Buster's attorney Jerry Gilbert filed a motion asking Buster's refusal of the blood test be thrown out as evidence. Neal indicated he would apply the same 2008 ruling about blood tests to the Buster case, according to court documents.

Patterson argued that Neal's ruling directly contradicts Kentucky Supreme Court precedence.

“The Commonwealth is unable to proceed in DUI prosecutions where it is unsure or unclear about what law applies to when and how an officer must administer tests of a person's breath, blood or urine,” Patterson wrote.

“It is of primary importance that the issue be resolved so that clarity may be restored for both the officers making DUI arrests and the Commonwealth prosecuting those cases.”

Madison Circuit Court Judge Jean C. Logue ruled on the issue April 18, according to records that recently became available in the circuit clerk's office.

Logue wrote that the state's implied consent law does not differentiate between breathe, blood or urine testing. A suspected drunken driver "has a duty to submit to a blood-alcohol test," Logue wrote, citing a 1996 Kentucky Supreme Court ruling.

In addition, the U.S. Supreme Court ruled in 1966 that a blood test of a suspected drunken driver does not violent the Federal Due Process Clause, the Fifth Amendment against self-incrimination, the Sixth Amendment right to counsel or the Fourth Amendment right against unlawful search and seizure, Logue wrote.

"This Court can find no support for the proposition that a person operating a motor vehicle in the Commonwealth of Kentucky has consented only to a test of his or her breath unless a peace officer has reasonable grounds to believe there is impairment by a substance which is not subject to testing by breath," Logue wrote.

Logue issued a writ of prohibition ordering Neal to abstain from applying his 2008 ruling on the DUI blood test to the current case involving Buster.

No further dates have been set in Madison District Court in Buster's drunken-driving case, according to the Administrative Office of the Court's website. It was originally set for jury trial Jan. 20.

County Attorney Marc Robbins and Neal could not be reached for comment Friday.

Sarah Hogsed can be reached at shogsed@

richmondregister.com or 624-6694.

1
Text Only
Crime
  • 4-19 Brian Smith.jpg Berea man indicted on 24 child porn counts

    A Madison grand jury has indicted a Berea man on 24 counts related to child pornography.

    Brian J. Smith, 26, is charged with four counts of distribution and 20 counts of possession of matter portraying sexual performances by a minor.

    April 19, 2014 1 Photo

  • 4-19 Gregory Powell.jpg Police apprehend burglary suspect

    An observant witness was able to help Richmond police catch a burglary suspect shortly after a break-in Thursday afternoon on Savanna Drive off Berea Road.

    April 19, 2014 1 Photo

  • CCDW instructor indicted on charges of failing to provide training

    A Madison County grand jury has indicted a carry-concealed weapons permit instructor on charges he falsely claimed to have provided instruction to one person for a CCDW permit and provided incomplete training to three others.
    Christopher D. Fins was indicted April 9 on one count of CCDW instructor not providing firearms training and three counts of providing incomplete firearms training.
    Fins faces up to 20 years in prison if convicted of all four felony charges.

    April 17, 2014

  • Sixth person charged in motel meth bust

    A sixth person has been charged in connection with a methamphetamine-making operation discovered last week at the Bel Air Motel in Richmond.
    Roger M. Million, 24, Moberly Road, was charged Wednesday with manufacturing methamphetamine.

    April 17, 2014

  • 4-18 George WilliamsWEB.jpg Madison County inmate dies in Lexington hospital

    An inmate at the Madison County Detention Center died Tuesday at a Lexington hospital, according to officials with the Fayette County Coroner’s Office and Madison County EMS.

    April 17, 2014 1 Photo

  • 4-17 Melissa Lear.jpg BPD charge two in Richmond heroin-trafficking case

    Berea police arrested two women April 10 in a Richmond home in connection with heroin possession and trafficking.

    April 16, 2014 1 Photo

  • 4-16 Lisa Begley.jpg Police: Woman drove through storage business gate

    Richmond police arrested a Lexington woman Monday night after the property manager at Main Street Storage said she repeatedly drove her vehicle into a gate and fence at the 455 E. Main St. business.

    April 16, 2014 1 Photo

  • $250,000 wrecker stolen

    A representative of Barger’s Wrecking Service, North Porter Drive, reported to Richmond police Sunday that a black, 1996 Peterbilt wrecker with company logos on it was stolen from the business’ parking lot. The wrecker is valued at $250,000, according to the police report.

    April 15, 2014

  • Man involved in double slaying dies in prison

    A Richmond man who pleaded guilty in 2009 to participating in a double slaying in Lincoln County died in prison Monday.

    Neccolus Mundy, 32, died less than a week after being found unresponsive in his cell at Northpoint Training Center, according to The Associated Press.

    April 11, 2014

  • Two charged with prostitution and indecent exposure

    Two people were charged Wednesday evening after they were observed engaging in sexual activity related to prostitution in public, according to Richmond police.

    April 10, 2014

AP Video
Raw: More Than 100,000 Gather for Easter Sunday Raw: Greeks Celebrate Easter With "Rocket War" Police Question Captain, Crew on Ferry Disaster Raw: Orthodox Christians Observe Easter Rite Ceremony Marks 19th Anniversary of OKC Bombing Raw: Four French Journalists Freed From Syria Raw: Massive 7.2 Earthquake Rocks Mexico Captain of Sunken SKorean Ferry Arrested Raw: Fire Destroys 3 N.J. Beachfront Homes Raw: Pope Presides Over Good Friday Mass Raw: Space X Launches to Space Station Superheroes Descend on Capitol Mall Man Charged in Kansas City Highway Shootings Obama Awards Navy Football Trophy Anti-semitic Leaflets Posted in Eastern Ukraine Raw: Magnitude-7.2 Earthquake Shakes Mexico City Ceremony at MIT Remembers One of Boston's Finest Raw: Students Hurt in Colo. School Bus Crash Deadly Avalanche Sweeps Slopes of Mount Everest
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
Poll

Should Richmond rezone the southwest corner of Main Street and Tates Creek Avenue to B-1 (Neighborhood Business) with restrictions to allow construction of a financial services office?

Yes
No
     View Results