RENDERED: SEPTEMBER 30, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0704-DG
JOSE ELADIO ORTIZ APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
V. NO. 2018-CA-0304
LOGAN CIRCUIT COURT NO. 17-CI-00218
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
REVERSING AND REMANDING
This case is an appeal of Court of Appeals’ decision reversing the Logan
Circuit Court’s denial of a writ of prohibition. The writ seeks to prohibit
enforcement of a suppression order of the Logan District Court. The underlying
issue of the writ is whether the district court properly suppressed a blood
alcohol concentration (BAC) result collected from Jose Eladio Ortiz (Ortiz), the
Appellant, who is a Spanish-speaking person suspected of drunk driving. Ortiz
was read Kentucky’s implied consent law by his arresting officer in English, not
Spanish, before submitting to a blood draw. The Court of Appeals reversed the
circuit court’s denial, granting the Commonwealth’s writ of prohibition.
For the following reasons, we reverse and remand to the circuit court.
I. FACTUAL AND PROCEDURAL HISTORY
On September 10, 2016, Russellville Police Officer Chad Eggleston
responded to a report that a vehicle was operating on the wrong side of the
road. Officer Eggleston pulled the vehicle over and approached. He was wearing
a body cam. As he neared the vehicle, Officer Eggleston noticed a strong order
of alcohol on both the driver, Ortiz, and the car. Officer Eggleston questioned
Ortiz and asked if he spoke and understood English. Ortiz responded
affirmatively. Officer Eggleston asked Ortiz to complete three field sobriety
tests. Ortiz failed all three. Additionally, Officer Eggleston performed a
preliminary breath test, which showed the presence of alcohol.
Officer Eggleston believed Ortiz to be highly intoxicated. He arrested Ortiz
and transported him to Logan Memorial Hospital. At the hospital, Officer
Eggleston read Ortiz Kentucky’s implied consent warning aloud in English.
Ortiz agreed to have his blood drawn by medical personnel. The blood test
came back with a BAC of .233. Ortiz was charged with operating a motor
vehicle under the influence of alcohol—first offense—and having no operator’s
license.
Six months after the traffic stop, on March 9, 2017, Ortiz moved to
suppress the BAC result, arguing Ortiz could not understand English and that
he did not understand he could refuse the blood test. Ortiz also moved to
exclude evidence of the failed field sobriety tests.
The district court watched the body camera footage from the traffic stop
and the hospital visit. The district court found, based on a totality of the
2
circumstances, that the arresting officer used the tools provided to him during
the stop but violated the implied consent statute by not “informing” Ortiz in a
way that “might” have avoided the search or resulted in a less abusive search.
As a result, the district court suppressed the BAC result. However, the district
court found that Officer Eggleston had probable cause to make both the stop
and the arrest. The district court ruled the prosecution could move forward
with its case.
The Commonwealth, alleging irreparable injury, petitioned the circuit
court for a writ of prohibition to prevent enforcement of the suppression order.
After hearing argument, the circuit court denied the writ of prohibition,
agreeing that KRS1 189A.105 requires that a person suspected of drunk driving
be “informed” of the consequences of submitting to the testing as well as
refusing testing. The Commonwealth appealed to the Court of Appeals as a
matter of right.
The Court of Appeals disagreed with the circuit court and reversed,
granting the Commonwealth’s writ of prohibition. The Court of Appeals
determined that Ortiz gave no indication to Officer Eggleston that he did not
understand English well enough to comprehend what was being asked. As a
result, they held that no statutory violation had occurred because the statute
does not require a suspect to understand the implied consent warning, but
only that it must be read to the suspect.
Ortiz moved for discretionary review, which we granted.
1 Kentucky Revised Statutes.
3
II. ANALYSIS
The issuance of a writ of prohibition is an extraordinary remedy. Allstate
Prop. & Cas. Ins. Co. v. Kleinfeld, 568 S.W.3d 327, 331 (Ky. 2016). As explained
in Southern Financial Life Ins. Co. v. Combs:
[C]ourts are decidedly loath to grant writs as a specter of
injustice always hovers over writ proceeding. This specter is
ever present because writ cases necessitate an abbreviated
record which magnifies the chance of incorrect rulings that
would prematurely and improperly cut off the rights of
litigants.
413 S.W.3d 921, 925 (Ky. 2013) (internal citations and quotations omitted).
Thus, this Court has a two-class analysis in writ cases.
Writ cases are divided into two classes, which are
distinguished by whether the lower court allegedly is (1) acting
without jurisdiction (which includes beyond its jurisdiction),
or (2) acting erroneously within its jurisdiction . . . When a
writ is being sought under the second class of cases, a writ
may be granted upon a showing . . . that the lower court is
acting or is about to act erroneously, although within its
jurisdiction, and there exists no adequate remedy by appeal or
otherwise and great injustice and irreparable injury will result
if the petition is not granted. There is, however, a narrow
exception to the irreparable harm requirement. Under this
exception, certain special cases will allow a writ to be issued
in the absence of a showing of specific great and irreparable
injury . . . provided a substantial miscarriage of justice will
result if the lower court is proceeding erroneously, and
correction of the error is necessary and appropriate in the
interest of orderly judicial administration.
Id. at 926.
In this case, we must consider whether the requirements of the second
class of writs have been met. The Commonwealth must show that (1) the lower
court is acting or is about to act erroneously; (2) it had no adequate remedy by
appeal, and (3) it would suffer great and irreparable injury if denied relief.
4
“[U]ltimately, the decision whether or not to issue a writ of prohibition is
a question of judicial discretion. So review of a court’s decision to issue a writ
is conducted under the abuse-of-discretion standard. That is, we will not
reverse the lower court’s ruling absent a finding that the determination was
arbitrary, unfair, or unsupported by sound legal principles.” Appalachian
Racing, LLC v. Commonwealth, 505 S.W.3d 1, 3 (Ky. 2016) (internal citations
and quotations omitted).
As noted above, the Court of Appeals focused its analysis on the first
requirement for a second-class writ: whether the lower court was acting or
about to act erroneously. In this analysis, the Court of Appeals attempted to
reach and resolve the substantive issue on the meaning of informed consent in
KRS 189A.105. We need not weigh in on the substantive informed consent
issue at this time because we hold that the Commonwealth has not met one of
the threshold requirements for a second-class writ.
The Commonwealth fails to prove great injustice or irreparable harm.
While a blood test is compelling evidence, it is not strictly necessary to try a
DUI case. The district court makes clear in the May 10, 2017 Order, which
granted Ortiz’s motion to suppress, there was (1) probable cause for Officer
Eggleston to initiate the stop due to the careless or reckless manner of Ortiz’s
driving; (2) reasonable and articulate suspicion for Officer Eggleston to begin a
DUI investigation; and (3) probable cause for Officer Eggleston to effectuate a
DUI arrest of Ortiz. These determinations were based on a totality of the
circumstances analysis, specifically the initial call reporting a vehicle fitting the
5
description of Ortiz’s vehicle, Officer Eggleston’s firsthand observation of Ortiz
driving off the shoulder, the smell of alcohol Officer Eggleston detected on Ortiz
and in the car, and Ortiz’s failure to pass the field sobriety tests. This evidence
has not been suppressed. The Commonwealth can use all of it in trial when
prosecuting Ortiz. Ortiz’s blood test, while useful, is not the gravamen of the
Commonwealth’s case. Thus, there has been no great injustice or irreparable
harm done.
We reiterate that a writ is an extraordinary remedy and should only be
granted when a writ of prohibition meets the requirements. In this case, we
hold that the Commonwealth failed to show a great injustice and irreparable
harm if its requested writ of prohibition was not granted. Accordingly, we hold
that the writ should not be granted. Accordingly, it is not appropriate for us to
address the issue of informed consent at this time.
III. CONCLUSION
For the forgoing reasons, we reverse the Court of Appeals opinion and
remand to the Logan Circuit Court for reinstatement of the order denying the
Commonwealth’s petition for writ of prohibition.
Minton, C.J., Hughes, Keller, Lambert, VanMeter, and Conley, JJ, sitting.
All concur. Nickell, J., not sitting.
6
COUNSEL FOR APPELLANT:
Ami L. Brooks
Ami Brooks Law, PLLC
157 West 5th Street
Russellville, KY 42276
COUNSEL FOR APPELLEE:
Mark D. Barry
Assistance Attorney General
Office of the Solicitor General
Criminal Appeals Unit
1024 Capital Center Drive, Suite 200
Frankfort, KY 40601
7
Supreme Court of Kentucky
2019-SC-0704-DG
JOSE ELADIO ORTIZ APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
V. NO. 2018-CA-0304
LOGAN CIRCUIT COURT NO. 17-CI-00218
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER CORRECTING
The Opinion issued on September 30, 2021 inadvertently listed an
incorrect trial court and case number and is hereby corrected.
ENTERED: September 30, 2021.
_______________________________________
CHIEF JUSTICE
Jose Eladio Ortiz v. Commonwealth of Kentucky
Combined Opinion