Drake Alan Towne v. Commonwealth of Kentucky

• Court: Court of Appeals of Kentucky
• Decided: September 19, 2025
• Docket: 2024-CA-0133
• Status: Unpublished

Opinion

RENDERED: SEPTEMBER 19, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0133-MR

DRAKE ALAN TOWNE APPELLANT

APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 23-CR-01152

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.

LAMBERT, JUDGE: Drake Alan Towne directly appeals his conviction for

operating a motor vehicle under the influence (DUI), fourth offense, and for first-

degree wanton endangerment, entered pursuant to a conditional guilty plea. On

appeal, he challenges the Warren Circuit Court’s March 16, 2023, order denying

his motion to suppress the results of a DUI blood test. After careful review of the

briefs, the record, and the law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY

On April 25, 2021, Towne was arrested at the scene of a vehicle

collision for, among other offenses, DUI. He subsequently consented to law

enforcement’s request for a DUI blood test. Towne was indicted on charges of

DUI, fourth offense within ten years, wanton endangerment first degree, criminal

mischief first degree, and careless driving.

Towne moved to suppress the results of his DUI blood test, arguing

that Kentucky State Trooper Brent Davis had coerced his consent when Trooper

Davis told him that his refusal would result in enhanced criminal penalties and be

admissible as proof of his guilt on the DUI charge. Trooper Davis’s warning was

in accordance with Kentucky Revised Statutes (KRS) 189A.105(2)(a),1 a provision

1 The law in effect at the applicable time stated:

189A.105 Effect of refusal to submit to tests; information required to be provided when tests requested; court-ordered testing; withdrawal of blood sample; right to consult attorney before submitting to tests; personal testing option

(1) A person’s refusal to submit to tests under KRS 189A.103 shall result in suspension of his or her driving privilege as provided in this chapter.

(2) (a) At the time a breath, blood, or urine test is requested, the person shall be informed:

1. That, if the person refuses to submit to such tests:

a. The fact of this refusal may be used against him or her in court as evidence of violating KRS 189A.010 and will result in suspension of his or her driver’s license by the court at the time of arraignment; and

-2- of Kentucky’s implied-consent law, at the time it was given; however, the above

cited portions of the statute were subsequently held unconstitutional in

Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky. 2021). Specifically, the

McCarthy Court held that a motorist, “could not be subjected to an enhanced

penalty due to his refusal to submit to a warrantless Fourth Amendment search in

the form of a blood test.” Id. at 34. And the Court further held that the provision

of KRS 189A.105 permitting the use of a motorist’s now-constitutionally-

b. Is subsequently convicted of violating KRS 189A.010(1):

i. For a second or third time within a ten (10) year period, he or she will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he or she submits to the tests; and

ii. His or her license will be suspended by the Transportation Cabinet;

2. That, if a test is taken:

a. The results of the test may be used against the person in court as evidence of violating KRS 189A.010(1); and

b. The person has the right to have a test or tests of his or her blood performed by a person of his or her choosing described in KRS 189A.103 within a reasonable time of his or her arrest at the expense of the person arrested; and

KRS 189A.105 (2021), 2019 Ky. Acts ch. 103, § 9, eff. 7-1-20 (current version amended effective June 29, 2023).

-3- recognized right of refusal as evidence of guilt of DUI was improper under Deno v.

Commonwealth, 177 S.W.3d 753 (Ky. 2005). Id. at 36.

Despite that Towne consented to the blood test, whereas McCarthy

involved a refusal, consistent with the arguments of the parties and with Haney v.

Commonwealth, 653 S.W.3d 559, 568 (Ky. 2022),2 the circuit court accepted that

McCarthy was binding. Also consistent with Haney, the court held a suppression

hearing where it heard testimony from both Trooper Davis and Towne as to

whether Towne’s consent was voluntary under a totality of the circumstances,

including the inaccurate advice as to the consequences of his refusal.

Trooper Davis recounted his interactions with Towne as follows. He

was dispatched on April 25, 2021, to a non-injury collision on I-65 involving a car

driven by Towne and a semi-truck. He immediately detected the odor of alcohol

on Towne’s breath. Towne was distraught and upset due to being in a collision,

and Towne had even hugged Trooper Davis at the scene. Towne reported to

Trooper Davis that he had been texting while driving in the center lane when he

lost control of his car, hit a guardrail, and was then struck several times by the

semi-truck. Towne admitted to consuming two beers approximately eight hours

2 The Haney Court addressed a blood draw that occurred approximately five years before McCarthy was rendered and applied the holding in that case retroactively. It ultimately remanded the case to the circuit court for it “to consider whether [the defendant’s] consent was voluntary under the totality of the circumstances which included” the same implied consent warning at issue in the case at bar. Haney, 653 S.W.3d at 568.

-4- earlier. Towne refused medical treatment and signed a form to this effect. Trooper

Davis administered field sobriety tests, and Towne completed a preliminary breath

test that showed a blood alcohol content of .220. Trooper Davis arrested Towne,

and Towne said that he was extremely sorry for what had happened and that he

was relieved no one was injured.

Trooper Davis transported Towne to the hospital for medical

clearance and for a blood draw. At the hospital, Trooper Davis read Towne the

implied-consent warning required by KRS 189A.105(2)(a). He informed Towne

that if he refused to submit to the requested blood draw, Towne’s driving

privileges would be revoked, he would be unable to obtain a hardship license, his

refusal could be used as evidence of his guilt, and that, if found guilty of DUI, his

mandatory minimum jail sentence would be twice that which would have been

imposed if he had submitted. Towne was given time to contact his attorney, but

his attempts were unsuccessful. Trooper Davis described Towne as emotional,

crying and upset because he had just been involved in a collision and because he

was under arrest. Trooper Davis denied that Towne was angry or disrespectful,

that there was any perceived tension between them, or that Towne asked any

questions about implied consent. Towne agreed to the requested blood draw.

In his testimony, Towne stated that he remembered going to the

hospital and that Trooper Davis had read the implied consent warning to him from

-5- a card. He specifically recalled being told that his failure to submit to the blood

test would increase the duration of his possible jail sentence and the period of time

his license would be suspended. He would have rejected the blood test had he not

been warned of these ramifications or if he had been advised that he had the right

to withhold consent. Towne confirmed that he told Trooper Davis at the scene that

he had been texting and driving, and that he had consumed two beers earlier in the

day. He agreed that he voluntarily provided this information prior to being read

the implied consent warning. Towne further agreed that Trooper Davis had not

yelled at him or used force on him and that nothing in his demeanor was scary or

mean. Rather, Towne agreed that he and the trooper had a pleasant interaction.

The court entered an order denying Towne’s suppression motion on

March 16, 2023. Therein, the court stated:

Based on the sum total of the circumstances in the defendant’s case, this Court finds consent was voluntarily given. By all accounts, the encounter between the defendant and Trooper Davis was cordial. Mr. Towne testified that the trooper did not shout, yell, or intimidate him. It was even elicited during cross-examination that the two embraced to share a hug. Indeed, the defendant’s testimony indicates that the only sources of “coercion” were the penalties threatened by the implied consent warning.

Furthermore, the defendant was fully conscious and was able to apprehend what Trooper Davis was saying to him. There is no evidence of duplicity or confusion, nor any indication that Mr. Towne was “tricked” into submitting to the blood test. Lastly, we

-6- note that Trooper Davis appears to have acted in good faith by reading an implied consent warning that was current, enforceable law at the time. For all of these reasons, this Court finds that consent was voluntarily given to the blood draw and that the evidence obtained therefrom will not be suppressed.

Following the entry of this order, Towne entered a conditional guilty

plea to charges of DUI and wanton endangerment, and the circuit court sentenced

him to two years’ imprisonment via a January 10, 2024, judgment. This appeal

followed.

STANDARD OF REVIEW

We review a circuit court’s denial of a motion to suppress under a

two-part analysis. Cox v. Commonwealth, 641 S.W.3d 101, 113 (Ky. 2022). First,

the circuit court’s findings of fact are reviewed for clear error, and we defer to the

findings if they are supported by substantial evidence. Id. “Substantial evidence is

‘evidence, taken alone or in light of other proof, that a reasonable mind would find

sufficient to support a conclusion.’” Id. (quoting Goncalves v. Commonwealth,

404 S.W.3d 180, 189 (Ky. 2013)). Second, we review the circuit court’s

application of the law to the facts de novo, giving no deference to the circuit

court’s ruling. Id.

More specifically, whether Towne’s consent to submit to a DUI blood

test was voluntary or coerced is a question of fact that must be assessed from a

careful scrutiny of all of the surrounding circumstances. Hampton v.

-7- Commonwealth, 231 S.W.3d 740, 749 (Ky. 2007) (citing Schneckloth v.

Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854 (1973));

see also Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992). “Questions of

fact are subject to review only for clear error, the most deferential standard of

review.” Id. (citing Miller v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004)).

ANALYSIS

On appeal, Towne argues that the circuit court erred in finding that his

consent was voluntary because it focused on Trooper Davis’s demeanor and

thereby disregarded that Towne was in his early 20’s at the time of his arrest

(Towne was less than a month shy of his 25th birthday), his emotional state, the

fact that he could not get legal advice, and that the unconstitutional warning was

the determinative factor in Towne’s consent as he did not want to increase his jail

sentence or the duration of his license suspension. The Commonwealth asserts the

court’s finding is supported by the record and is therefore conclusive on the issue.

Undoubtedly there is no evidence that the interaction between Towne

and Trooper Davis was anything but amicable, given the circumstances, but we fail

to appreciate how this alleviates the express and directly coercive statement that

Towne faced increased penalties if he refused to consent to the blood test.

However, we do find support for the court’s finding in Towne’s testimony that he

was concerned with the impact his refusal would have on his license. Indeed, on

-8- appeal, Towne stated unequivocally that avoiding an increased suspension was one

of the two determinative factors to him giving consent, the other, unsurprisingly,

being the increased minimum jail sentence. Neither McCarthy nor any case that

this Court is aware of has invalidated the portions of KRS 189A.105 pertaining to

license suspension. See Haney, 653 S.W.3d at 570 n.11 (Conley, J. concurring).

As Towne admittedly consented at least in part to avoid a lawful consequence of

his refusal, we agree that the decision was voluntary, and the circuit court did not

err in denying his motion to suppress.

Moreover, we agree with the circuit court that Trooper Davis acted in

good faith, and we further agree with the Commonwealth that the good faith

exception to the exclusionary rule serves as an independent basis for denying

suppression.3

The exclusionary rule holds that “unlawfully obtained evidence and

the fruits resulting therefrom are inadmissible in criminal proceedings.” Parker v.

Commonwealth, 440 S.W.3d 381, 386 (Ky. 2014). The purpose of the rule is to

deter future Fourth Amendment violations, but “[w]here suppression fails to yield

appreciable deterrence, exclusion is clearly . . . unwarranted.” Davis v. United

3 Though the trial court found that Trooper Davis acted in good faith, it did not specifically address this exception to the exclusionary rule. The issue was, however, raised by the Commonwealth in its response filed with the circuit court and again to this Court on appeal, and we are permitted to affirm for any reason supported by the record. Fischer v. Fischer, 348 S.W.3d 582, 589-90 (Ky. 2011), abrogated on other grounds by Nami Res. Co., L.L.C. v. Asher Land & Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018).

-9- States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 2426-27, 180 L. Ed. 2d 285 (2011)

(internal quotation marks omitted).

An exception to the exclusionary rule, recognized both federally and

by the Commonwealth, is for good faith conduct by law enforcement. Parker, 440

S.W.3d at 386-87. The doctrine was first recognized in the context of police

officers conducting searches in objectively reasonable reliance on warrants that

were later held invalid and has since been expanded. Id. at 386 (citing United

States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). In

Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987),

the Supreme Court held that “evidence obtained by an officer acting in objectively

reasonable reliance on a statute” need not be suppressed when the statute is later

determined to be unconstitutional. And, although Kentucky has yet to apply the

specific good faith exception articulated in Krull, “we have consistently interpreted

Section 10 of our state Constitution in congruence with the Fourth Amendment

regarding the application of both rights and remedies.” Parker, 440 S.W.3d at 387.

Applying Krull, the question is whether Trooper Davis’s reliance on

KRS 189A.105 was objectively reasonable when he advised Towne of the

consequences of his decision to refuse a blood draw, 480 U.S. at 349-50, 107 S. Ct.

at 1167, and we conclude that it was. Unquestionably, Trooper Davis’s warning

-10- was consistent with the plain language of KRS 189A.105, and McCarthy was

rendered only after the events at issue took place.

Towne suggests that the unconstitutionality of Kentucky’s implied

consent law was a foregone conclusion in light of Birchfield v. North Dakota, 579

U.S. 438, 455, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), undermining Trooper

Davis’s reasonable reliance on KRS 189A.105, but we cannot agree.

In Birchfield, decided approximately four years before McCarthy, the

United States Supreme Court held that state laws implying a motorist’s consent to

submit to a DUI blood test on pain of committing a separate criminal offense

violated Fourth Amendment protections against unreasonable searches. Id.

However, its application to Kentucky’s implied consent statute, which only

enhances the minimum penalty if the motorist is ultimately convicted of DUI, was

not clear. Indeed, a panel of this Court in Commonwealth v. Brown, 560 S.W.3d

873 (Ky. App. 2018), overruled by implication by McCarthy, 628 S.W.3d at 33,

expressly rejected that Birchfield invalidated Kentucky’s implied consent statutes.

Brown, as the only appellate guidance at the time of these events, certainly bolsters

the trooper’s reliance on the statute.

Moreover, the plain language of McCarthy refutes Towne’s assertion:

In closing we acknowledge that some courts have read Birchfield very narrowly and have concluded that it does not prohibit statutes such as ours that make refusal to consent to a blood test grounds for enhanced penalties

-11- upon conviction for DUI. See, e.g., Maine v. LeMeunier- Fitzgerald, 188 A.3d 183 (Me. 2018); Vermont v. Rajda, 208 Vt. 324, 196 A.3d 1108 (2018). Other states recognize, as we do, that the Supreme Court spoke in terms of “criminal penalties” in Birchfield, and a criminal penalty imposed after conviction for DUI is no less a penalty than one imposed by a freestanding criminal statute. See, e.g., Pennsylvania v. Monarch, 650 Pa. 394, 200 A.3d 51 (2019); Wisconsin v. Dalton, 383 Wis.2d 147, 914 N.W.2d 120 (2018); New Mexico v. Vargas, 404 P.3d 416 (N.M. 2017).

Accordingly, Trooper Davis’s good faith reliance on KRS 189A.105

precludes exclusion of the evidence, and the circuit court did not err in denying

Towne’s motion to suppress.

CONCLUSION

For the foregoing reasons, the judgment of the Warren Circuit Court is

affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Dennie Hardin Russell Coleman Bowling Green, Kentucky Attorney General of Kentucky

Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

-12-