The Richmond Register

March 15, 2012

County attorney challenges judge on DUI evidence rulings

By Sarah Hogsed
Register News Writer

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.