The Kentucky Supreme Court in Common­wealth v. McCarthy determined a defendant now has a constitutionally protected right to refuse a blood test in suspected cases of DUI.

With this ruling, which was published April 29, the Supreme Court has said that unlike a breath test, which drivers have impliedly consented to take as a condition of driving on public roadways, a blood test is more intrusive, Hardin County Attorney Jennifer Oldham said.

Therefore, it may be necessary to obtain a search warrant from a judge to obtain a blood test for a driver suspected of DUI, she said.

“We prosecute over 800 cases of DUI a year in Hardin County. About one-third of those involve drug impairment and could be potentially affected by this decision,” Oldham said.

The long-running case stems from the DUI arrest of Jared McCarthy by Owensboro police in 2014. The trial judge properly decided that McCarthy’s refusal to take the warrantless blood test could not be used as evidence of guilt, nor could it be used to enhance his sentence, the state’s high court said.

According to Old­ham in a statement she released Friday, Com­monwealth v. Mc­Carthy reinforces why Ken­tuc­ky’s county attorneys have been pushing the legislature to amend the state’s DUI statute to clarify that search warrants for blood are appropriate in all DUI cases, not just those involving death or physical injury.

Oldham said they hope next session Ken­tucky will join the majority of other states, including all the states bordering Kentucky, by authorizing expedited search warrants for blood in all DUI cases, not just those involving death or physical injury.

“Most states have a statute that explicitly clarifies that a search will be obtained in the case of a refusal. We believe this issue needs further court clarification and perhaps a legislative solution to make that clear,” she said.

Oldham said as the drug epidemic has gripped Kentucky and deepens daily in Hardin County, drugged driving cases have increased. Someone driving under the influence of drugs is equally as dangerous as someone driving under the influence of alcohol, she said.

Prosecutors need to have every tool in the tool kit to keep drugged drivers off our roadways, Oldham said in the statement.

“Someone on drugs should not be given a free pass just because an alcohol test cannot be used to show drug activity and a blood test is required in that instance,” she said.

According to Oldham, her office along with the Kentucky County Attorney’s Association continues to monitor this case, including whether the Kentucky Attorney General’s Office intends to file a Motion for Reconsideration or seek certiorari with the United States Supreme Court.

Although disappointed by the decision, Oldham said local law enforcement and prosecutors are prepared and are not be deterred in “our united efforts to aggressively combat both alcohol and drugged-driving in Kentucky.”

“We will continue to seek search warrants and pursue convictions in these cases. There are no free passes here and it is my priority to continue to rid our roadways of impaired drivers,” she said in her statement.

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