The Richmond Register

Crime

March 15, 2012

County attorney challenges judge on DUI evidence rulings

RICHMOND — The county attorney’s office has asked a higher court to prohibit Madison District Judge Earl-Ray Neal from ruling that a police officer must always give a breath test in drunken driving cases.

A reequest for a writ of prohibition was filed Feb. 23 in Madison Circuit Court by Assistant County Attorney Jud Patterson. The case is being heard by Judge Jean C. Logue.

“A writ of prohibition is basically a directive to a subordinate to stop doing something the law prohibits,” Commonwealth’s Attorney David Smith said. He is not involved in the action because it is coming from district court, where cases are handled by the county attorney’s office.

Smith noted a writ of prohibition action is not common. It is typically seen more in appellate courts when it is used to keep subordinate courts, usually a circuit court, from exceeding its jurisdiction.

The case that spurred the writ of prohibition request was a Sept. 8 drunken driving arrest made by Richmond Police Officer Daniel Deaton, according to court documents filed by Patterson.

Deaton reportedly observed a vehicle cross the center lane twice, fail to give a turn signal and cross the center line again. After he stopped the vehicle, Deaton performed field sobriety tests on the driver, Timothy W. Buster, 25, that indicated he was under the influence of alcohol, according to court documents.

After arresting and charging Buster with second-offense DUI, Deaton took Buster to Pattie A. Clay Regional Medical Center for a blood test because the officer was told the breath test device at the Madison County jail was not working properly, according to court documents. Buster refused to have blood drawn, and his charge was upgraded to an aggravated DUI.

Buster’s attorney, Jerry Gilbert, filed a motion to suppress Buster’s refusal based on a 2008 ruling by Neal that police officers must first offer breath tests in suspected cases of driving under the influence of alcohol. Neal indicated his determination on the legality of the compelled blood test would be the same as it had been in the prior DUI case, according to court documents.

2008 DUI blood-test ruling

In 2008, Neal ordered that the blood test result in a drunken-driving case be thrown out, according to court documents. In Commonwealth of Kentucky v. Michael E. Neville, a KSP officer chose to take Neville directly to the hospital for a blood test without first administering a breath test when he suspected Neville was driving under the influence of alcohol on Oct. 13, 2007.

Neal interpreted Kentucky’s “implied consent” law as acknowledging that breath tests are less intrusive than blood or urine tests in cases where the suspected intoxicant is alcohol.

The judge wrote that a 1996 Kentucky Supreme Court case, Beach v. Commonwealth, found police officers are not required to first offer a DUI suspect a breath test before asking for a blood test. However, Neal pointed out that in the Beach case, the Breathalyzer at the police station was not working, and Beach was involved in an injury accident that required medical treatment at a hospital.

In the 2008 Neville case, the Breathalyzer was working and there was no accident or medical treatment involved, Neal wrote in his judicial order.

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

Neal ruled the blood test, or “intrusion,” on Neville was not justified and the evidence was suppressed.

Buster case disputed

Patterson argues in court documents that Neal’s 2008 ruling in the Neville case goes against the Kentucky Supreme Court’s ruling on the matter.

Although Neal’s interpretation of the ruling is “complex and interesting,” it directly contradicts the precedent set in the Beach case, Patterson wrote.

“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.”

Patterson asked Madison Circuit Court to direct Neal “to abstain from ruling that a police officer must first attempt a breath test in cases where there’s no evidence of intoxication other than alcohol.”

On Feb. 24, Logue granted the assistant county attorney’s request to halt Buster’s DUI case in district court until the DUI testing issue is resolved. Patterson argued that proceeding with Buster’s district court case before Logue ruled on the writ of prohibition would cause “immediate and irreparable injury.”

The same day, Buster’s attorney filed a motion to proceed with Buster’s case because he said Buster would suffer harm if his DUI case was not resolved in a speedy fashion, as required by the United States Constitution. Buster had been offered a job with the U.S. Department of Corrections pending the resolution of his DUI case, according to court documents.

The motion to lift the hold on the Buster's case was heard Feb. 28 in circuit court, but as of Wednesday, Logue had not done so.

No further hearing dates have been set in either the writ of prohibition action or Buster’s DUI case.

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