January 10, 2017 | DUI Defense

KY Court confirms driver’s have a right to their own independent blood test

Com. v. Riker, 2016-CA-000601-DG.

The Kentucky Court of Appeals, in a to be published opinion, used solid reasoning when reminding courts that when the General Assembly passes a law, it is not a suggestion.

Historically, most Kentucky district courts have viewed the independent blood test (“IBT”) as a rather hollow right, and motions taking issue with their lack of availability treated accordingly. The Riker decision gives the IBT some teeth from a couple of different angles, and shoots down at least four different arguments by the prosecution, the foundation of them all based on turning a blind eye to the fact that the IBT is a statutorily granted right. This is difficult to do, however, when lawmakers go and use pesky little words like “shall” in the text of bills. This “shall” language should have made obvious the importance of the IBT to everyone, including police, prosecutors, judges, and defense attorneys alike.

The basic problem has always been this: the law clearly says that if you first submit to law enforcement’s alcohol test, then you “shall” get your own test. However, if the reality of the situation is that you really have no meaningful access to your own test (for whatever reason), then our Implied Consent law is meaningless, perhaps even deceitful.

The Court cites to several authorative cases in its opinion, including McGregor v. Hines, 955 SW2d 384 (Ky. 1999), when stating that a defendant’s fundamental right to due process = the ability to develop AND present ANY exculpatory evidence. This includes independent blood tests.

Riker represents a long-standing trend in decisions involving discovery issues. Virtually every discovery-related decision that has come down in the last 50 years — starting with the U.S. Supreme Court and Brady v. Maryland in 1963 — has favored complete disclosure and reiterrated the importance of defendants’ ability to prepare and present their case, rather than simply responding to the state’s. This view has permeated into the states, including Kentucky.

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