RENDERED: MARCH 31, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0601-MR
JASON KINMAN APPELLANT
APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 21-CR-00285
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, LAMBERT, AND MCNEILL, JUDGES.
EASTON, JUDGE: The Appellant (“Kinman”) seeks reversal of the judgment
entered by the Boone Circuit Court after his conditional guilty plea to a driving
under the influence (“DUI”) fourth.1 Kinman argues the result of his blood test
should have been suppressed because he was not provided the required opportunity
1 Driving under the influence fourth or subsequent offense within a ten-year period in violation of Kentucky Revised Statutes (“KRS”) 189A.010. to obtain an independent test. From our review of the record, we hold the circuit
court correctly denied the suppression motion, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2020, Kinman struck another vehicle and then a utility
pole. Kinman’s vehicle was rendered inoperable. Florence City Police Officer
Jacob Whitford (“Whitford”) arrived at the scene. Whitford observed signs of
Kinman’s impairment. Whitford took Kinman to nearby St. Elizabeth Hospital.
The interaction between Kinman and Whitford was captured by a
body camera worn by Whitford. Whitford informed Kinman of Whitford’s
request for a blood test to which Kinman consented. Whitford properly read the
warnings required by KRS 189A.105 and asked Kinman if he wanted an
independent test. In response, Kinman just said he did not have his wallet or his
phone. Significantly, Whitford had previously allowed Kinman to use Whitford’s
phone when Kinman specifically requested an opportunity to call an attorney.
Kinman was unsuccessful in reaching an attorney.
The Boone County Grand Jury indicted Kinman for DUI 4th. A
review of Kinman’s entire criminal history indicates this was his seventh DUI,
including one while operating a boat. His DUI history is relevant when
considering his experience and understanding of testing procedures for such
charges and his prior interaction with police in such situations.
-2- The circuit court conducted a suppression hearing on October 26,
2021. After submission of written arguments, the circuit court denied Kinman’s
motion. Kinman subsequently entered his conditional guilty plea. This appeal
followed.
STANDARD OF REVIEW
“When reviewing a trial court’s denial of a motion to suppress, we
utilize a clear error standard of review for factual findings and a de novo standard
of review for conclusions of law.” Jackson v. Commonwealth, 187 S.W.3d 300,
305 (Ky. 2006). The factual findings of the circuit court are supported by the
evidence, and we accept them. Our analysis will address the legal question of what
accommodation Whitford was required to give in the circumstances.
ANALYSIS
The facilitation required of an officer is explained in the seminal case
of Commonwealth v. Long, 118 S.W.3d 178 (Ky. App. 2003). Long was arrested
for a DUI and provided a breath test at the local jail. Ironically, Long was a
phlebotomist working at nearby St. Joseph Hospital. Long clearly requested an
independent test. Id. at 180.
When Long was arrested, her roommate had driven the car away.
Long’s purse was in the car. Long requested an opportunity to call her roommate
to meet her at the hospital with her purse. The arresting officer refused this
-3- request. The sole question was whether the refusal to allow the phone call resulted
in a violation of the right to obtain an independent test. Id. at 180-81.
This Court in Long recognized the right to obtain an independent test
provided by KRS 189A.103 as well as the required process, which includes
informing the person charged of the right and giving them an opportunity to
request the test. KRS 189A.105. If the request is made, the arresting officer must
provide some level of facilitation. Long, 118 S.W.3d at 183. This Court used
various terms for this facilitation including allowance, assistance, and
accommodation. Id.
If the arresting officer does allow the independent test requested, a
series of factors borrowed from Georgia law are to be considered in determining if
the statutory right has been violated. Id. at 184. But this assumes an invocation of
the right by the person arrested. We must decide if the circuit court erred when it
concluded the undisputed interaction between Kinman and Whitford was not a
request for the independent test.
What specific answer is required to the question of “Do you want such
a test?” is not stated in the statute, although this Court has stated in dicta the
question calls for a yes or no answer. Commonwealth v. Morgan, 583 S.W.3d 432,
434 (Ky. App. 2019). In the context of an invocation of the right to counsel before
questioning, the Kentucky Supreme Court has recently held the invocation must be
-4- “unequivocal and unambiguous.” Cox v. Commonwealth, 641 S.W.3d 101, 119
(Ky. 2022). But we have found no reported Kentucky case addressing what the
officer is expected to do when the response to the question about an independent
test is less than clear.
Finding it is again consistent with Kentucky precedent, we will again
borrow from Georgia law as we did in Long:
An officer does not unjustifiably fail to obtain an additional, independent chemical test when a suspect makes only an unclear, ambiguous, or equivocal statement that could have been, with the benefit of hindsight, interpreted as a request for additional testing. Whether a clear request was made is determined by examining the words used by the suspect, the context of the conversation between the officer and the suspect regarding chemical testing, and other circumstances relevant to whether or not the suspect expressed a desire for such testing.
State v. Henry, 864 S.E.2d 415, 420 (Ga. 2021) (citation omitted).
When Whitford asked Kinman whether he wanted an independent
test, Kinman said only that he did not have his wallet or phone. Kinman did not
say that he wanted another test at that hospital or elsewhere. He did not ask
Whitford to get his wallet for him or to again borrow his phone. From Whitford’s
perspective Kinman was just offering an excuse for why he was not asking for an
independent test. After this interaction, Kinman is asked to check “no” on the
-5- form to indicate he was not asking for an independent test. Kinman is seen writing
on the form which is returned to Whitford.
Kinman makes much of the inventory of his effects when he was
incarcerated, which included $720 in cash in the wallet. But no evidence was
offered of Whitford’s knowledge of that during the interaction about the
independent test. Whitford would not necessarily have known of the availability of
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RENDERED: MARCH 31, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0601-MR
JASON KINMAN APPELLANT
APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JAMES R. SCHRAND, II, JUDGE ACTION NO. 21-CR-00285
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: EASTON, LAMBERT, AND MCNEILL, JUDGES.
EASTON, JUDGE: The Appellant (“Kinman”) seeks reversal of the judgment
entered by the Boone Circuit Court after his conditional guilty plea to a driving
under the influence (“DUI”) fourth.1 Kinman argues the result of his blood test
should have been suppressed because he was not provided the required opportunity
1 Driving under the influence fourth or subsequent offense within a ten-year period in violation of Kentucky Revised Statutes (“KRS”) 189A.010. to obtain an independent test. From our review of the record, we hold the circuit
court correctly denied the suppression motion, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2020, Kinman struck another vehicle and then a utility
pole. Kinman’s vehicle was rendered inoperable. Florence City Police Officer
Jacob Whitford (“Whitford”) arrived at the scene. Whitford observed signs of
Kinman’s impairment. Whitford took Kinman to nearby St. Elizabeth Hospital.
The interaction between Kinman and Whitford was captured by a
body camera worn by Whitford. Whitford informed Kinman of Whitford’s
request for a blood test to which Kinman consented. Whitford properly read the
warnings required by KRS 189A.105 and asked Kinman if he wanted an
independent test. In response, Kinman just said he did not have his wallet or his
phone. Significantly, Whitford had previously allowed Kinman to use Whitford’s
phone when Kinman specifically requested an opportunity to call an attorney.
Kinman was unsuccessful in reaching an attorney.
The Boone County Grand Jury indicted Kinman for DUI 4th. A
review of Kinman’s entire criminal history indicates this was his seventh DUI,
including one while operating a boat. His DUI history is relevant when
considering his experience and understanding of testing procedures for such
charges and his prior interaction with police in such situations.
-2- The circuit court conducted a suppression hearing on October 26,
2021. After submission of written arguments, the circuit court denied Kinman’s
motion. Kinman subsequently entered his conditional guilty plea. This appeal
followed.
STANDARD OF REVIEW
“When reviewing a trial court’s denial of a motion to suppress, we
utilize a clear error standard of review for factual findings and a de novo standard
of review for conclusions of law.” Jackson v. Commonwealth, 187 S.W.3d 300,
305 (Ky. 2006). The factual findings of the circuit court are supported by the
evidence, and we accept them. Our analysis will address the legal question of what
accommodation Whitford was required to give in the circumstances.
ANALYSIS
The facilitation required of an officer is explained in the seminal case
of Commonwealth v. Long, 118 S.W.3d 178 (Ky. App. 2003). Long was arrested
for a DUI and provided a breath test at the local jail. Ironically, Long was a
phlebotomist working at nearby St. Joseph Hospital. Long clearly requested an
independent test. Id. at 180.
When Long was arrested, her roommate had driven the car away.
Long’s purse was in the car. Long requested an opportunity to call her roommate
to meet her at the hospital with her purse. The arresting officer refused this
-3- request. The sole question was whether the refusal to allow the phone call resulted
in a violation of the right to obtain an independent test. Id. at 180-81.
This Court in Long recognized the right to obtain an independent test
provided by KRS 189A.103 as well as the required process, which includes
informing the person charged of the right and giving them an opportunity to
request the test. KRS 189A.105. If the request is made, the arresting officer must
provide some level of facilitation. Long, 118 S.W.3d at 183. This Court used
various terms for this facilitation including allowance, assistance, and
accommodation. Id.
If the arresting officer does allow the independent test requested, a
series of factors borrowed from Georgia law are to be considered in determining if
the statutory right has been violated. Id. at 184. But this assumes an invocation of
the right by the person arrested. We must decide if the circuit court erred when it
concluded the undisputed interaction between Kinman and Whitford was not a
request for the independent test.
What specific answer is required to the question of “Do you want such
a test?” is not stated in the statute, although this Court has stated in dicta the
question calls for a yes or no answer. Commonwealth v. Morgan, 583 S.W.3d 432,
434 (Ky. App. 2019). In the context of an invocation of the right to counsel before
questioning, the Kentucky Supreme Court has recently held the invocation must be
-4- “unequivocal and unambiguous.” Cox v. Commonwealth, 641 S.W.3d 101, 119
(Ky. 2022). But we have found no reported Kentucky case addressing what the
officer is expected to do when the response to the question about an independent
test is less than clear.
Finding it is again consistent with Kentucky precedent, we will again
borrow from Georgia law as we did in Long:
An officer does not unjustifiably fail to obtain an additional, independent chemical test when a suspect makes only an unclear, ambiguous, or equivocal statement that could have been, with the benefit of hindsight, interpreted as a request for additional testing. Whether a clear request was made is determined by examining the words used by the suspect, the context of the conversation between the officer and the suspect regarding chemical testing, and other circumstances relevant to whether or not the suspect expressed a desire for such testing.
State v. Henry, 864 S.E.2d 415, 420 (Ga. 2021) (citation omitted).
When Whitford asked Kinman whether he wanted an independent
test, Kinman said only that he did not have his wallet or phone. Kinman did not
say that he wanted another test at that hospital or elsewhere. He did not ask
Whitford to get his wallet for him or to again borrow his phone. From Whitford’s
perspective Kinman was just offering an excuse for why he was not asking for an
independent test. After this interaction, Kinman is asked to check “no” on the
-5- form to indicate he was not asking for an independent test. Kinman is seen writing
on the form which is returned to Whitford.
Kinman makes much of the inventory of his effects when he was
incarcerated, which included $720 in cash in the wallet. But no evidence was
offered of Whitford’s knowledge of that during the interaction about the
independent test. Whitford would not necessarily have known of the availability of
enough cash to pay for the test at the relevant time.
It is important to consider the other interaction between Whitford and
Kinman. When Kinman specifically asked for the opportunity to call an attorney,
Whitford accommodated this. Whitford had gone to his cruiser to obtain items
during the visit to the hospital and prior to the interaction about the independent
test.
Providing accommodation or allowance or any other similar word for
assistance does not rise to the level of turning the officer into an advocate for the
arrested person. Whitford was not required to cajole out of Kinman a more
specific statement such as asking “well, do you want the test here or somewhere
else, or do you want me to fetch your wallet?”
Kinman did not unambiguously or unequivocally request an
independent test. In these circumstances, when considered as a whole, Whitford
-6- did not fail to accommodate a request for an independent test. Whitford acted
reasonably.
CONCLUSION
The Boone Circuit Court did not err in denying Kinman’s Motion to
Suppress. As a result, the Judgment based upon Kinman’s conditional guilty plea
is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Harry P. Hellings, Jr. Daniel Cameron Covington, Kentucky Attorney General of Kentucky
Mark D. Barry Assistant Attorney General Frankfort, Kentucky
-7-