The Richmond Register

Local News

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
Local News
  • 2-11 Mangan.jpeg Man indicted in I-75 wreck that killed two

    A man who police believe started the chain of events that led to the deaths of two people on Interstate 75 in February was indicted on several felony charges Wednesday in Madison Circuit Court.
    Bryan M. Mangan, 56, of South Bend, Ind., was indicted on six counts of first-degree wanton endangerment, tampering with physical evidence and operating on a suspended license.

    April 24, 2014 2 Photos

  • Man charged with reselling employer’s equipment

    A man who worked for a local satellite TV company has been charged with ordering extra equipment and selling it online.
    Charles William Hensley, 39, of Manchester, worked for the Multiband Corporation at its Richmond office, according to a Richmond police report.
    Multiband maintains DIRECTV’s installations, service and upgrades for single-family homes in 20 states and commercial sites nationwide.

    April 24, 2014

  • Saturday is National Drug Take-Back Day

    A nationwide initiative to dispose of prescription drugs in a safe manner will take place Saturday.
    Three Madison County sites are available for residents to get rid of their unused, unneeded or expired prescription drugs as part of the eighth annual National Prescription Drug Take-Back Day:
    • Richmond Police Department, 1721 Lexington Road, box is outside by the front door.
    • Kentucky State Police Post 7, 699 Eastern Bypass, across from the EKU stadium, box is inside at the front door.

    April 24, 2014

  • 4-25 Revue 1.JPG Retro Radio Revue

    “Stan O’Donnell’s Retro Radio Revue,” presented by Rose Barn Theatre, will be performed at 7:30 p.m. Friday and Saturday at Gillum’s Sports Lounge in the Richmond Mall.
    The production focuses on the performers of the show and the follies and chaos that take place as the unexpected ensues. Local musical performers from Madison County will be showcased throughout the production.
    Gillum’s will provide a full menu service and cash bar beginning at 5:30 p.m.
    Tickets for the show are $15 and available at the door or in advance at www.rosebarntheatre.org.
    The event is a fundraiser for the nonprofit arts organization.

    April 24, 2014 3 Photos

  • 4-25 Crit Luallen.jpg Luallen says no to 2015 governor’s race

    After months of deliberation, former state Auditor of Public Accounts Crit Luallen announced Thursday she will sit out the 2015 race for governor.
    The announcement disappointed friends and associates who see Luallen as an able and experienced administrator — she served in six gubernatorial administrations — but also someone with the character and integrity to restore confidence in government.

    April 24, 2014 1 Photo

  • Blue Grass Army Depot sponsors 5K

    The Blue Grass Army Depot is hosting a 5K run/walk Saturday in support of National Sexual Assault Awareness Month.
    The no-entry-fee event will begin and end at the depot’s new sports complex ball fields, according to a news release from the installation. Preregistration is available online at www.bluegrass.army.mil or starting at 9 a.m. the day of the event.

    April 24, 2014

  • 4-24 UKatWaco1.jpg Wildcats encourage Cardinals to work hard in school

    University of Kentucky student athletes Kastine Evans, a guard on the women’s basketball team, and Jon Hood, a guard on the men’s team, stopped by Waco Elementary School on Wednesday to talk about the benefits of working hard in school.

    April 23, 2014 4 Photos

  • Mayor, commissioner pay changed

    The Richmond City Commission approved 4-1 a new pay scale for the mayor and commissioners at a special-called meeting Wednesday morning.

    April 23, 2014

  • 4-24 Lorenzo McWilliams.jpg Harrodsburg to get old Richmond police mobile computers

    Richmond is donating to the city of Harrodsburg eight of 39 old computers formerly used in police cruisers.

    April 23, 2014 1 Photo

  • 4-24 HOSAblooddrive.jpg Health science students organize blood drive

    Aside from the gift cards and free snacks, 50 Madison County high school students have other reasons for donating 35 pints of blood Wednesday to the Kentucky Blood Center at Madison Central High School.

    April 23, 2014 1 Photo

AP Video
US Proposes Pay-for-priority Internet Standards Wife Mourns Chicago Doctor Killed in Afghanistan FDA Proposes Regulations on E-cigarettes Kerry Warns Russia of Expensive New Sanctions Mideast Peace Talks Stall on Hamas Deal Cody Walker Remembers His Late Brother Paul Grieving South Korea Puts Up Yellow Ribbons Raw: Kerry Brings His Dog to Work Raw: Girls Survive Car Crash Into Their Bedroom Three U.S. Doctors Killed by Afghan Security Yankees' Pineda Suspended 10 Games for Pine Tar Colleagues Mourn Death of Doctors in Afghanistan Ukraine Launches Operation Against Insurgents Obama Reassures Japan on China Raw: Car Crashes Into San Antonio Pool Time Magazine Announces Top Influencers List Raw: Angry Relatives Confront SKorea Officials Bigger Riders Means Bigger Horses Out West Yankees Pineda Ejected for Pine Tar Deadly Fungus Killing Bats, Spreading in US
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