by Heather Tomlinson
A local police sergeant facing a DUI charge is getting his license thanks to a legal technicality.
Pulaski District Judge Scott Lawless on Friday ordered that Somerset Police Department Sgt. Jason Griffith’s license be reinstated after special prosecutor Kevin Shearer acknowledged that Griffith had not been read an implied consent warning before refusing a Breathalyzer test on the night of his arrest.
Griffith, 41, of Somerset, was arrested Sunday, Oct. 27 by Kentucky Fish & Wildlife Officer Lucas Tucker and charged with one count of operating a vehicle under the influence of drugs or alcohol after Tucker pulled Griffith over at the intersection of East Ky. 80 and Ky. 914.
Griffith pleaded not guilty to that charge during an arraignment Monday.
According to the arrest citation, Tucker allegedly saw Griffith “driving at a high rate of speed on (Ky.) 80 ... crossing all lanes, going into the grass and shoulder on both sides of the road.”
Tucker also wrote in the citation that he smelled “a strong odor of (an) alcoholic beverage” on Griffith. Griffith was also allegedly swaying while standing outside the Ford F-150 he was driving when he was pulled over.
Griffith was not on duty when the arrest happened.
Tucker also reported that Griffith refused field sobriety tests and a Breathalyzer test, and Shearer during Monday’s arraignment moved to have Griffith’s license suspended.
Under the state’s implied consent law, those driving a vehicle in Kentucky are deemed to have given their consent to sobriety tests. If tests are refused, that may be used against the defendant in court as aggravating evidence of committing a DUI — but that only holds true if the defendant is warned of the consequences that stem from such a refusal.
Tucker apparently failed to read Griffith the implied consent warning during the arrest.
“Having discussed the matter, the Commonwealth agrees and stipulates that the arresting officer failed to administer the implied consent warning to the defendant at the location where the Breathalyzer was to be administered,” states Lawless’ order. “ ... the implied consent warning must be read in order to effectively suspend a defendant’s license under this section.
“Without the implied consent, the refusal may not form the basis of a pretrial license suspension pursuant to law,” the order continues.
Lawless ordered that Griffith’s license be reinstated immediately.
Griffith’s attorney, Scott Foster, said state law mandates that every defendant is read an implied consent warning, no mater whether they already know the law or not.
“Even though (Griffith) is a police officer, the law applies equally to him as to anybody else,” said Foster. “He’s got to be treated like every other citizen.”
A suspension hearing, set for this Tuesday in Russell County, has been canceled. A new hearing has been scheduled for Jan. 15, 2024 in Pulaski District Court.
Foster, who has emphasized Griffith’s “unblemished” record during his 15 years with the Somerset Police Department, has also said he takes issue with whether Tucker had the authority to carry out an arrest.
Foster has said state statute limits the legal jurisdiction of Kentucky Fish and Wildlife officers, pointing out that KRS 150.090 limits conservation officers’ powers to that of enforcement of laws and regulations directly related to fish and wildlife jurisdiction.
But Foster said that section also states that a “life-threatening” situation — something he said is open to interpretation — may give a fish and wildlife officer the power to carry out something like a DUI arrest. Foster said the question he intends to bring up is whether the Oct. 27 situation was a “life-threatening” one.
But, in a long-standing precedent used by state authorities, the Kentucky State Police in the 1990s officially asked that Fish and Wildlife help the agency enforce all laws.
In a letter signed by Kentucky State Police (KSP) Commissioner Rodney Brewer and sent to Jon Gassett, Commissioner of the Kentucky Department of Fish and Wildlife Resources, Brewer sought to “affirm and clarify ... that Conservation Officers assist the Kentucky State Police in enforcing all criminal laws of the Commonwealth.”
Griffith was suspended from his SPD duties with pay the Monday after his arrest.
According to SPD’s disciplinary section of its personnel manual, which was obtained by the Commonwealth Journal through an unrelated July 2013 open records request, criminal complaints filed against an SPD employee generally result in either the paid or unpaid suspension of the employee until criminal proceedings are completed.
Also included in the section is a statement that any decision handed down in court that may favor the employee (as in the employee has been found innocent, or the case has been dismissed), administrative action from within the department may still be carried out.