Kentucky Supreme Court: Officers don't have to administer DUI tests in any specific order

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LOUISVILLE, Kentucky — Police officers don't have to follow a specific order when asking suspected drunken drivers to submit to breath or blood testing to determine their blood-alcohol concentration, the Kentucky Supreme Court ruled Thursday.

The decision stems from a 2007 Webster County case that wound its way through several courts. Defendant Christopher Duncan claimed his DUI charge should be dismissed because the arresting officer in Providence first asked if he would submit to a blood test and then denied him a Breathalyzer test.

The high court ruled the officer didn't run astray of the state's Implied Consent law in how he tried to check Duncan's blood-alcohol concentration.

State law does not set out a specific testing order to follow, nor does it single out a breath test as the preferred method, said Justice Bill Cunningham in writing for the court. Officers may utilize a breath, blood or urine test, or a combination, to determine a driver's blood-alcohol level, he said.

"We can find no explicit or implicit directive from the General Assembly requiring law enforcement to administer a Breathalyzer test first, prior to proceeding with blood testing," Cunningham wrote.

"Furthermore, this statute in no way bestows power upon the driver to dictate to law enforcement which test to administer first."

Duncan was "free to express an opinion as to his testing preference," but the officer had authority to determine which of three tests to use, he wrote.

Under Kentucky's Implied Consent law, drivers can refuse any form of testing. That refusal, however, can result in a driver's license suspension and a double minimum jail sentence. It also can be used in court as proof of the driver's guilt.

Kentucky Attorney General Jack Conway's spokeswoman, Allison Martin, said Thursday's ruling "ensures that police officers and prosecutors can utilize tools at their discretion to keep impaired drivers off Kentucky roads."

The defendant was stopped after the officer saw him cross the center lane. Duncan admitted to drinking three beers prior to driving. The officer conducted field sobriety tests that Duncan failed and administered a Portable Breathalyzer Test, which detected alcohol on Duncan's breath.

The officer asked Duncan if he would submit to a blood test. Duncan refused and instead requested that a Breathalyzer test be used. The officer declined and took Duncan to jail.

Duncan lost in district and circuit courts with his motion to have the DUI charge dismissed due to how the officer handled the stop. After the state's Court of Appeals initially declined to review the case, Duncan pleaded guilty to an amended DUI charge in 2010.

As a condition of his plea, he reserved the right to appeal, which he did. The Appeals Court in 2013 upheld the refusal to dismiss the charge.

About the same time, however, the U.S. Supreme Court issued a ruling in a DUI case out of Missouri. As a result, Duncan asked the Kentucky Court of Appeals to reconsider. He claimed the ruling by the nation's highest court backed his argument.

The Court of Appeals responded with a new ruling. It reversed the refusal to dismiss the charge against him and sent the case back to district court.

Cunningham said Thursday the Court of Appeals erred in applying the U.S. Supreme Court case.

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