¶1dissenting.
¶2I respectfully dissent. Section 29 of our constitution gives all legislative power to the General Assembly. Section 28 forbids us to exercise any legislative power. The plain wording of KRS 189.520(6) defines the groups authorized to withdraw blood. Paramedics and phlebotomists are not the duly licensed, qualified medical technicians mentioned in the statute. If the General Assembly had wanted to include them they could have done so. (The 1991 amendment to the statute, which in any event does not apply in this case, mentions phlebotomists but does not mention paramedics.) We have no rightful authority to substitute our views for those of the legislature, or to construe unambiguous statutes to suit ourselves.
¶3I also disagree with the majority’s treatment of KRS 186.565(1). First, by its own reasoning, the majority’s holding that the statute is irrelevant here because express consent was freely and voluntarily given renders its analysis of the implied consent statute unnecessary. Second, the statute is not ambiguous, and therefore does not lend itself to judicial construction. Nevertheless, the majority in effect decrees ambiguity, despite the fact that the statute by its own pellucid terms operates to imply consent only «/the subject is arrested. We are not at liberty to apply our “constructions” to such a statute. But even if we were, giving effect to the plain statutory language would not “lead to an anomalous or absurd result,” as contended by the majority (ante at 6). If we are all free to speculate as to legislative intent, one might argue that the General Assembly made implied consent conditional upon arrest in order to satisfy the Fourth Amendment. For, as the majority itself points out, consent must be actual and voluntary when the subject is not in custody. Ante at 641. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The majority cites Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), for the proposition that evanescent evidence may be seized without consent and without a warrant. Given the holding here of express consent, the relevance escapes me, but in any event the majority fails to recognize that in Schmerberthe defendant had been placed under formal arrest and advised of his constitutional rights, and that in Cuppthe defendant, although not advised of his rights, was in custody at the police station, detained against his will with probable cause to believe that he had committed a felony, and with counsel present. Cuppwas decided on the principle of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which upheld a search incident to a valid arrest.
¶4In my view, the majority’s re-writing of the implied consent statute is not only gratuitous, but unconstitutional as well.