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.

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