Criminal (DUI Testing): COMMONWEALTH V. FILBEN (COA 7/21/2006)

COMMONWEALTH V. FILBEN
CRIMINAL:  DUI and reasonable opportunity for second BA test must be afforded;  BA test not critical for trial

2004-CA-002207
TO BE PUBLISHED
REVERSING IN PART AND REMANDING; MILLER
Date Rendered: 7/21/2006

Suppression of BA test affirmed due to officer’s failure to meet the the "reasonable efforts" standard for independent test as set forth in Commonwealth v. Long, 118 S.W.3d 178 (Ky. 2003).  However, dismissal of the case was not an appropriate sanction, therefore, case remanded for trial without the BA test.The police did not undertake the required reasonable efforts to facilitate Filben’s statutory entitlement to an independent alcohol concentration test. Officer Curtis testified that he was aware beforehand that Suburban Hospital administered private blood testing. Upon the refusal of University Hospital to administer the private test, Officer Curtis failed to undertake the minimal additional step of offering to transport Filben to the nearby Suburban Hospital for testing.  Upon the initial failure to obtain the test, at minimum, the reasonable efforts requirement imposed in Long would oblige an officer to inform an arrestee of a known nearby alternative testing site and an offer to transport him there.

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