Request By:
Mr. A. Jack May, Director
Division of Judicial Training
Department of Justice
Box 608,
Eastern Kentucky University
Richmond, Kentucky 40475
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Please excuse our delay in responding to your request for an opinion of this Office regarding the offense of operating a motor vehicle while under the influence of intoxicants. You have indicated a particular concern relative to KRS 189.520(8), which provides that a person tested for this offense shall be permitted to have a physician of his own choosing administer a test in addition to that conducted by the state. Specifically you inquire,
1) What steps should a police agency take when a request is made by a person so charged to be permitted to have an independent test conducted,
2) Would the police agency be required to transport the person to a hospital for the purpose of having a blood test administered, and
3) If such transportation would be required what, if any, limitations would apply?
Initially it is to be noted that an accused is only entitled to have a physician of his choice conduct such a test where the original test was conducted at the direction or request of a police officer. Where a test is not conducted by or at the request of the state, KRS 189.520(8) does not require that the accused be allowed to have an independent physician conduct a second examination.
Newman v. Hacker, Ky., 530 S.W.2d 376 (1975). The accused's refusal to submit to the original test must however be a positive refusal in response to a specific request. KRS 186.565(2)(3);
Commonwealth, Department of Public Safety v. Hayden, Ky., 484 S.W.2d 97 (1972);
Commonwealth, Department of Public Safety v. Tuemler, Ky., 526 S.W.2d 304 (1975).
The nature of the test conducted, whether it be of the blood, breath, urine, or saliva, is to be designated by the law enforcement agency by which the arresting officer is employed. KRS 186.565(1). However it is to be noted that only a physician, registered nurse, or qualified medical technician, acting at the request of the officer, may withdraw blood from one submitting to that particular type of examination. KRS 189.520(7).
The specific language of KRS 189.520(8) provides,
The person tested shall be permitted to have a duly licensed physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer. (Emphasis added).
KRS 446.010(23), dealing with statutory construction, states that the word "shall" is to be construed as mandatory unless otherwise indicated. Therefore it is our opinion that a law enforcement agency is required to provide for the testing of one accused of driving while under the influence of intoxicants by a physician of his own choosing where a chemical test was conducted by the state.
This requirement must be viewed with an eye toward reasonableness, however. It would, of course, be unreasonable for an individual to request that his personal physician conduct such a test while he is some distance from home. The agency having custody of the accused must face this question when it arises on a case-by-case basis. When a request is made for an independent examination, provision should be made for a physician of the accused's choosing to come to the place of detention to conduct the test, or arrangements made for transporting the accused to a doctor. If the accused has no preference as to the doctor conducting the independent examination, it would appear reasonable that he be transported to the nearest medical facility for such testing.
In
Sharp v. Commonwealth, Ky., 414 S.W.2d 902, 903 (1967), the Court of Appeals held as to reasonableness,
What may be reasonable in one locality may not necessarily be reasonable in another. . . . The request is considered unreasonable if it is inconsistent with safe custody, if it is unavailable with reasonable effort or, in some cases, if the party requesting the test does not propose to pay for it.
Since an accused may be entitled to such an examination as a part of his right to due process, every reasonable effort should be made to fulfill a request by the accused.
No limitations would appear to apply to the transportation of an accused to a medical facility for testing. It would be assumed, however, that the independent examination should be conducted as quickly as possible after the original test.
I trust that we have satisfactorily answered your inquiries. Should we be of further assistance please contact me.