CONCURS IN RESULT ONLY:
I concur in the result reached by the majority in this case, but would analyze the issues in a more linear fashion. There are two stated issues: Did the police violate Bedway’s statutory right to contact an attorney at the time he was to be administered a breath test, and if his statutory right was violated, is Bedway entitled to suppression of the breath-test results?
On the first question, it is clear that KRS 189A.105(3) provides that a suspect must be informed that he has “at least ten (10) minutes, but not more than (15) minutes to attempt to contact and communicate with an attorney.” The statute is entirely silent on the method or means the suspect may use. In today’s world, if available to them, most suspects would use their own cell phones. Lacking that, the jail invariably has a ground line phone available. Because the suspect is allowed to consult with the attorney he reaches, I fully agree with the majority that there must be reasonable accommodations for a suspect to make contact and consult with an attorney, including providing a reasonable amount of privacy because such consultation can be a privileged communication. The factors the majority sets forth provide an excellent guide for determining the reasonableness of such accommodations.
However, I would simply address the second question about whether suppression must occur when a suspect’s right to contact and communicate with an attorney has been thwarted by the police or the jailor by saying that a suspect does not have a constitutional right to counsel at that point in the testing, because by driving under his license to drive granted by the Commonwealth, he has bound himself to submit to the breath test, and regardless of what advice a lawyer may give him, he is still bound, even though he may physically refuse to comply. See KRS 189A.103 (stating that any person operating a motor vehicle “has given his or her consent to one (1) or more tests of his or her blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration”). That consent, given by operating a motor vehicle in this state, is in no way qualified, other than that the officer must have “reasonable grounds to believe that” the suspect has been driving under the influence before he may be tested. Id. If the suspect nevertheless does refuse, that breach of his agreement will be remedied by immediate revocation of his driver’s license, KRS 189A.105(1), and by enhancing his penalty if he is convicted, KRS 189A.010(5).
Consequently, whether a suspect has been allowed to contact and communicate with a lawyer or not, the police officer has not engaged in misconduct by administering the test, because the defendant was legally bound to take it. The officer has *479simply done what the statute requires, and the suspect’s consultation with a lawyer— or the lack thereof — has no bearing on the officer’s duty or the suspect’s obligation to take the test.
But it is also indisputable that a statutory right has been granted to the suspect in this situation to have the 10-to-15 minute period to contact and communicate with an attorney. The acts of the legislature have purpose, and are not optional. For that reason, I also agree with the majority that the analysis in Copley v. Commonwealth, 361 S.W.3d 902 (Ky. 2012), as applied to violations of criminal procedural rules, clearly and succinctly states the rule that applies here. Suppression may be warranted for a violation of a nonconstitutional right if there is prejudice to the suspect by his loss of the right, or if there is deliberate disregard of the statutory requirements.
The point I find somewhat difficult to get past is whether denying a suspect the right to attempt to contact and communicate with an attorney results in any prejudice to him. It is true that the actual advice an attorney can give a suspect at this point is limited. It does encompass, however, making the suspect aware of what his legal position is. I am confident that many Kentucky drivers are not aware that they are bound to submit to a breath test because they have performed the act of driving on a Kentucky highway under their driver’s license. And, after my many years as a lawyer and on the bench, I am aware that attorneys often advise their clients to refuse the test. It is more difficult to prove actual driving under the influence without an objective measure of blood alcohol, and refusal could increase the chances of acquittal. And it is important for the suspect to be informed that if he refuses and gets convicted, his penalty will be significantly higher. So I believe a suspect could be prejudiced by being denied this statutory right.
But there is no evidence in the record of actual prejudice to Bedway because he did not get to contact an attorney, and the things that I perceive as potentially prejudicial here are particularly dependent on only subjective proof or after-the-fact assertions of what the suspect would have done. This evidence has little to no weight.
But what is clear to me is that there was no deliberate disregard of the statutory requirement, or bad faith, on the part of the officers. In fact, Bedway was informed of his right to contact an attorney and offered a phone book. While that was not much help to him since he could not remember the attorney’s name, the officers did give him the opportunity. And the officers testified they believed the contact was only to be for an attorney, and Bedway wanted to call his daughter. I can certainly understand the officer’s skepticism about such a call. It is equally foreseeable that a suspect would simply want to “phone home” to let his family know where he was or to arrange bail. That is not the right the statute gives him.
Consequently, I agree with the result reached by the majority, and would simply express my reasoning a little differently.