affirming Court of Appeals' reversal of trial court's suppressing defendant's blood alcohol test results in vehicular homicide case due to appellate courts' conclusion that defendant voluntarily consented and noting that "[t]here is nothing in the record that shows the defendant's mental or physical condition was such that he was unable to give his permission to allow the police to obtain a blood sample."
How later courts described this case
- affirming Court of Appeals' reversal of trial court's suppressing defendant's blood alcohol test results in vehicular homicide case due to appellate courts' conclusion that defendant voluntarily consented and noting that "[t]here is nothing in the record that shows the defendant's mental or physical condition was such that he was unable to give his permission to allow the police to obtain a blood sample."
- “It is fundamental that all searches without a warrant are unreasonable unless it can be shown that they come within one of the exceptions to the rule that a search must be made pursuant to a valid warrant.”
Written by the judges who cited it.
The opinion
COMBS, Justice,
dissenting.
I respectfully dissent. The Court of Appeals and the majority here believe that the trial court imposed an undue burden upon the Commonwealth when he suppressed the results of the blood test. Taking blood from a semi-conscious individual constitutes a seizure, which is prohibited except upon a showing of probable cause. If so much is necessary to justify the issuance of a writ, should not an individual subjected to a warrantless search, and not under arrest, at least be advised of the circumstances of the seizure?
The Court of Appeals and this Court have found that appellant freely consented. How can one consent to a thing without knowing what one is consenting to? Here, appellant had been seriously injured, to such an extent that a minister had come to the hospital to attend him. According to Trooper Westbrook’s testimony he had to tell appellant where he was. Appellant remembers seeing the minister but doesn’t remember seeing a policeman, and doesn’t remember talking about a blood test. His condition was such that the officer did not feel that he could safely place him under arrest. In addition to this, this man reportedly had a blood alcohol content of .21, more than twice the statutory level for intoxication.
The undisputed sequence of events seem to be as follows. Trooper Miller arrived at the scene first. When Trooper Westbrook arrived, Miller told him to go with the victim to the hospital and obtain a blood sample. The trooper followed his instructions and took the blood sample kit with him to the hospital and gave it to an appropriate hospital employee. The nurse thought that the trooper had obtained written consent and Trooper Westbrook thought that she had obtained it. Neither had. The Court of Appeals noted that Westbrook did not commence talking to appellant until after he’d given the kit to *333 the technician, who immediately commenced taking the blood. This conversation, from which the Court of Appeals found voluntary consent, was commenced after they had started taking the blood. This being the case, and in view of the patient’s injured and intoxicated state, I cannot see how either court could conclude that he voluntarily consented to the taking of his blood. I think it goes without saying that a person “consenting” to something must know what she/he is consenting to.
Even assuming that the conversation took place before the blood was taken, I cannot see how the Court could conclude that the dialogue between the officer and appellant was evidence of a voluntary consent. This dialogue is as follows:
Q: Did you advise Mr. Cook that he was under suspicion for some future charges?
A: I told him that there might be alcohol, that there was alcohol involved, and that’s why we wanted the blood.
Q: Tell us how you informed Mr. Cook, if you can remember. Can you remember what you said to him about the blood alcohol test?
A: Just that there might be alcohol involved, that’s why we wanted the test. That he’d been involved in an accident and the best I remember, he wanted to cooperate because — you know—
Q: So, can I take it from that you didn’t say — that you didn’t get into this aspect, ‘This could be used against you and it might be evidence against you in a criminal case.’
A: I’m sure he understood that, because—
Q: But did you tell him that, that’s my point?
A: I don’t remember telling him that specifically.
I also disagree with my brethren’s construction of RCr 9.78. The concluding portion of that rule is as follows: “If supported by substantial evidence the factual finding of the trial court shall be conclusive.” There are no qualifications, no limitations.
The trial court unequivocally found that there was no consent. This was a finding of fact. Who better than the trial court, who heard the evidence and observed the witnesses, is in a position to evaluate that testimony? I submit that neither the Court of Appeals nor we enjoy such an advantage.
It appears that the Court of Appeals and this Court have placed too much reliance on the testimony of Trooper Westbrook. Perhaps it was an analogous situation which prompted the Barons to secure from King John Chapter 28 of the Magna Carta, which provides: “No bailiff from henceforth shall put any man to his law upon his own hare saying, without credible witnesses to prove it.”
From 1850 until January 1976 the people had denied the judiciary rule-making power. According to Article 8, Section 22 of the 1850 constitution the General Assembly possessed that power. It was empowered to employ three learned men to promulgate rules of practice and procedure governing the practice of both civil and criminal law.
Our constitutional amendment took that power from the General Assembly and gave it to this Court. Section 116 of our present constitution empowers this Court to “prescribe rules governing its appellate jurisdiction ... and rules of practice and procedure for the Court of Justice.”
RCr 9.78 was adopted pursuant to that power and as such is now an adjunct of the constitution which we are sworn to support. Justice Douglas, in an article appearing in the 49 Columbia Law Review, pp. 735-36, 1949, dealing with stare decisis, had this to say:
A judge looking at a constitutional decision may have compulsion to revere past history and accept what was once written. But remember above all else that it is the constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.