Commonwealth of Kentucky v. Jared McCarthy ( 2021 )


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  •                                                    RENDERED: APRIL 29, 2021
    TO BE PUBLISHED
    Supreme Court of Kentucky
    2019-SC-0380-DG
    COMMONWEALTH OF KENTUCKY                                             APPELLANT
    ON REVIEW FROM COURT OF APPEALS
    v.                          NO. 2017-CA-1927
    DAVIESS CIRCUIT COURT NO. 15-CR-00005
    JARED MCCARTHY                                                          APPELLEE
    OPINION OF THE COURT BY JUSTICE HUGHES
    AFFIRMING
    In Birchfield v. North Dakota, 
    136 S. Ct. 2160
    (2016), the United States
    Supreme Court altered the landscape in driving under the influence (DUI)
    investigations by announcing that the Fourth Amendment permits a
    warrantless breath test incident to an arrest for drunk driving, but not a
    warrantless blood test. For warrantless blood tests, the search is unreasonable
    under the Fourth Amendment unless valid consent is given or exigent
    circumstances justify the search. This appeal addresses the ramifications of
    Jared McCarthy’s exercise of his constitutional right to refuse to take a blood
    test when stopped for DUI and ultimately convicted of that offense pursuant to
    Kentucky Revised Statute (KRS) 189A.010.
    We conclude the trial court properly held that under Birchfield
    McCarthy’s refusal to submit to a blood test could not be used to enhance his
    criminal penalty for DUI and, under controlling Kentucky precedent, could not
    be used as evidence that he was guilty of DUI. The trial court erred, however,
    in allowing the Commonwealth to introduce the refusal evidence to explain to
    the jury the lack of scientific evidence as to McCarthy’s blood alcohol content
    (BAC). Upon review of the record, we cannot conclude that the erroneous
    admission of that evidence was harmless beyond a reasonable doubt and thus
    affirm the Court of Appeals’ decision reversing and remanding this case to the
    Daviess Circuit Court for further proceedings.
    FACTUAL AND PROCEDURAL BACKGROUND
    On November 1, 2014 at 1:00 a.m., an Owensboro police officer stopped
    Jared McCarthy on suspicion of DUI. The officer administered a series of field
    sobriety tests and placed McCarthy under arrest.1 The officer transported
    McCarthy to the hospital where he requested McCarthy submit to a blood test
    and informed McCarthy of the repercussions under KRS 189A.105(2)(a)1 for
    refusing the test. Specifically, the officer warned McCarthy that (1) if he
    refused the test, the fact of the refusal may be used against him in court as
    evidence of violating KRS 189A.010, the DUI statute, and (2) if he refused the
    test and was subsequently convicted of DUI under KRS 189A.010, then he
    would be subject to a mandatory minimum jail sentence twice as long as the
    1 McCarthy refused a preliminary breath test during the traffic stop prior to his
    arrest. Pursuant to KRS 189A.100, a person’s refusal to take a preliminary breath
    test cannot be used against him in a court of law or in any administrative proceeding.
    McCarthy moved in limine to exclude any reference to this refusal and an agreed order
    was entered to that effect.
    2
    mandatory minimum jail sentence imposed if he were to submit to the test.2
    McCarthy refused the blood test.
    Pretrial, McCarthy moved in limine to exclude any evidence of his refusal
    to take the warrantless blood test. Citing then-recently-decided Birchfield v.
    North Dakota as impacting KRS 189A.105(2)(a)1, he argued that a blood draw
    is a search of his person requiring a warrant and that he could not be deemed
    to have consented to the blood draw through statutory implied consent when
    facing a criminal penalty, namely additional jail time. McCarthy argued that
    his refusal to consent to a warrantless search,3 could not be used against him
    as an aggravator for penalty purposes or as evidence at trial of the DUI offense.
    The Commonwealth responded that Birchfield does not apply to KRS
    189A.105 because, unlike the North Dakota and Minnesota implied-consent
    statutes analyzed in Birchfield, the Kentucky General Assembly did not create a
    2   McCarthy was indicted under KRS 189A.010(5)(d) for operating a motor
    vehicle while under the influence, fourth or subsequent offense within the last five
    years, aggravating circumstance. At the time of McCarthy’s indictment, KRS
    189A.010(5)(d) provided that “[f]or a fourth or subsequent offense within a five (5) year
    period, [the violator is] guilty of a Class D felony. If any of the aggravating
    circumstances listed in subsection (11) of this section are present, the mandatory
    minimum term of imprisonment shall be two hundred forty (240) days, which term
    shall not be suspended, probated, conditionally discharged, or subject to any other
    form of release”; KRS 189A.010(11)(e) provided that “[r]efusing to submit to any test or
    tests of one’s blood, breath, or urine requested by an officer having reasonable
    grounds to believe the person was operating or in physical control of a motor vehicle in
    violation of [KRS 189A.010(1)]” was an aggravating factor; and KRS 189A.010(8) stated
    that “[f]or a fourth or subsequent offense under this section, the minimum term of
    imprisonment shall be one hundred twenty (120) days, and this term shall not be
    suspended, probated, or subject to conditional discharge or other form of early release.
    For a second or subsequent offense, at least forty-eight (48) hours of the mandatory
    sentence shall be served consecutively.” See 2010 Ky. Acts ch. 149.
    3   An exigent circumstance justifying the warrantless search was not discussed.
    3
    separate violation and criminal penalty for refusing the blood test, i.e., a
    freestanding offense which could be prosecuted regardless of whether the
    defendant was prosecuted for or found guilty of DUI. The Commonwealth
    noted that under KRS 189A.105, Kentucky’s mandatory minimum term of
    imprisonment cannot attach until a conviction for DUI occurs, requiring the
    Commonwealth first prove the DUI, and if the defendant is found guilty, then
    prove his refusal. The Commonwealth also argued that because Birchfield did
    not disturb the civil penalties and evidentiary consequences of a refusal, the
    fact of McCarthy’s refusal of the blood test could be used against him in court
    as evidence of violating KRS 189A.010, just as he was explicitly warned
    pursuant to KRS 189A.105. The Commonwealth further insisted that given
    common knowledge that scientific tests are often used as evidence in DUI
    cases, it should be allowed to explain to the jury why the Commonwealth did
    not have a scientific test as part of its proof against McCarthy.
    After considering Birchfield, the trial court ruled in McCarthy’s favor in
    terms of the implication of guilt and the enhanced penalty associated with the
    refusal. The circuit court concluded McCarthy’s trial would proceed as a DUI
    prosecution without the aggravating circumstance. Specifically, the circuit
    court ruled that the Commonwealth (1) could not use McCarthy’s refusal to
    take the warrantless blood test as evidence implying his guilt during its case-
    in-chief but could introduce the refusal to explain the absence of any scientific
    evidence to prove the DUI, and (2) could not use the refusal to enhance
    McCarthy’s penalty if he were found guilty of DUI. As to McCarthy, the circuit
    4
    court ruled that McCarthy (1) could argue that the Commonwealth offered no
    scientific evidence of his guilt, but (2) could not comment that the absence of
    scientific evidence was due to the Commonwealth’s failure to secure a warrant
    for his blood. The trial court did not allow questions about the warrant
    because issuance of a warrant is a question of law. McCarthy’s first trial ended
    in a mistrial with a deadlocked jury. The trial court’s rulings remained in effect
    for McCarthy’s second trial.
    At trial, Officer Fleury testified that he stopped McCarthy after observing
    his vehicle leave a bar parking lot and swerve across the roadway’s centerline.
    McCarthy was driving and had three passengers. Officer Fleury testified that
    the car, as well as McCarthy himself upon his removal from the car, smelled of
    alcoholic beverages; that McCarthy slurred his speech a little bit; that
    McCarthy was a bit lethargic; and that McCarthy’s cumulative performance on
    the field sobriety tests indicated that he was impaired. The jury saw the video
    of Officer Fleury stopping McCarthy and McCarthy performing the field sobriety
    tests. A search of the vehicle yielded three open containers of beer and
    prescription bottles of clonazapam and hydrocodone, prescribed for McCarthy.
    Officer Fleury did not open the containers to count the pills. Officer Fleury
    testified that the prescription labels contained a warning that they should not
    be used in combination with alcohol.
    5
    Officer Fleury testified that after arresting McCarthy, he transported
    McCarthy to the hospital for a blood draw, but McCarthy refused the draw.4
    On cross-examination, Officer Fleury also testified that he had never requested
    a search warrant for blood in a DUI case and did not even know whether he
    could request a warrant.5 During deliberations, the jury asked to view the
    video again. The jury found McCarthy guilty of operating a motor vehicle while
    under the influence of alcohol and/or other substances, fourth offense within
    the last five years. The trial court followed the jury’s recommendation and
    sentenced McCarthy to two years in prison, noting that under the statute
    McCarthy “must serve 120 days of his sentence.”
    McCarthy appealed to the Court of Appeals, arguing that the trial court
    erred (1) by allowing the Commonwealth to introduce evidence that McCarthy
    refused to submit to blood testing and then (2) by preventing him from
    countering that evidence by asking the police officer why he had not obtained a
    warrant for the blood test.6 In response, the Commonwealth expounded on its
    arguments before the trial court that Birchfield’s holding is inapplicable to
    4  Although the trial court ruled that the Commonwealth could use McCarthy’s
    refusal for the limited purpose of explaining the lack of scientific proof, an admonition
    was not requested.
    5 The Commonwealth did not object to this testimony. The Commonwealth
    objected when defense counsel asked Officer Fleury if he knew he could have obtained
    a warrant, whether he would have in fact done so.
    6  McCarthy also alleged the trial court erred by sua sponte giving the
    deliberating jury an Allen (term derived from Allen v. United States, 
    164 U.S. 492
    (1896)) charge. The Court of Appeals rejected that claim of error, and McCarthy does
    not pursue it before this Court.
    6
    Kentucky’s DUI statutes and that the Commonwealth is statutorily permitted
    to introduce evidence of McCarthy’s refusal.
    The Court of Appeals, addressing whether Birchfield is applicable to KRS
    189A.105’s sentence enhancement upon a DUI conviction, concluded an
    otherwise apparently relevant conclusion in then-recently-decided
    Commonwealth v. Brown, 
    560 S.W.3d 873
    (Ky. App. 2018), was dicta; the
    Brown court stated that although the doubling of a mandatory minimum jail
    sentence is a criminal sanction, unlike the statutes examined in Birchfield, it
    lacks the coercive force presented by an additional criminal charge for refusing.
    Rejecting this reasoning, the Court of Appeals in this case concluded that
    Birchfield applied to KRS 189A.105; that McCarthy’s refusal could not be used
    as evidence of guilt in the DUI prosecution; and considering Deno v.
    Commonwealth, 
    177 S.W.3d 753
    , 762 (Ky. 2005), and Coulthard v.
    Commonwealth, 
    230 S.W.3d 572
    , 582 (Ky. 2007), the Commonwealth
    improperly commented on McCarthy’s refusal, especially in light of the trial
    court’s ruling that McCarthy could not comment on the officer’s failure to seek
    a search warrant. We granted discretionary review and, after careful
    consideration, affirm the Court of Appeals.
    ANALYSIS
    McCarthy initially raised the issues before us by filing a motion in limine
    to exclude evidence of his refusal and the trial court ultimately entered an
    “Order Limiting Introduction of Refusal to Take Warrantless Blood Test.”
    Neither McCarthy nor the court treated the matter as a suppression motion.
    7
    On appeal, however, McCarthy argued that evidence of his refusal should be
    “suppressed” and the Court of Appeals then analyzed the issues through the
    lens of a suppression motion. Although this is not a typical scenario where a
    government search has yielded evidence such as drugs, weapons or, most
    pertinently, a BAC result which the defendant asks the court to suppress, the
    officer’s request did result in McCarthy’s refusal and that refusal was evidence
    that the Commonwealth intended to use against him. Given that fact and that
    the taking of a blood sample in these circumstances is a search implicating
    Fourth Amendment rights, Schmerber v. California, 
    384 U.S. 757
    , 767-68
    (1966), we conclude a defendant’s refusal to allow such a search and his
    subsequent efforts to preclude the government from using that refusal as
    evidence against him may properly be addressed as a suppression motion.
    Generally, when reviewing the trial court’s decision on a suppression
    motion it is a two-part process and “we first review the trial court’s findings of
    fact under the clearly erroneous standard.” Davis v. Commonwealth, 
    484 S.W.3d 288
    , 290 (Ky. 2016). Here, the material fact upon which McCarthy’s
    motion was based, McCarthy’s refusal of the blood test, is not disputed.
    McCarthy’s motion required the trial court, as a matter of law, to consider how
    Birchfield applied to McCarthy’s refusal within KRS Chapter 189A, Kentucky’s
    Driving Under the Influence statutory framework, particularly KRS
    189A.105(2). Therefore, we review de novo the circuit court’s conclusions of
    law.
    Id. A trial court’s
    allegedly erroneous Fourth Amendment evidentiary
    rulings are reviewed under the “harmless beyond a reasonable doubt”
    8
    standard. Chapman v. California, 
    386 U.S. 18
    (1967); Ward v. Commonwealth,
    
    587 S.W.3d 312
    , 331 (Ky. 2019).
    The trial court’s rulings were: (1) the Commonwealth could not use
    McCarthy’s refusal to submit to a warrantless blood test to enhance his penalty
    if he was convicted of DUI; (2) the Commonwealth could not use McCarthy’s
    refusal as evidence to imply his guilt; (3) the Commonwealth could introduce
    the refusal to explain why the Commonwealth lacked scientific evidence to
    prove the DUI; (4) McCarthy could comment on the fact the Commonwealth
    presented no scientific evidence of his guilt; and (5) McCarthy could not
    comment that the absence of any scientific evidence of his guilt was due to the
    Commonwealth’s failure to secure a warrant for his blood. The trial court’s
    unexpressed conclusions of law encompassed in those rulings were: (1)
    because McCarthy has the constitutional right to refuse to submit to an illegal
    warrantless blood test, his lawful refusal to consent could not (a) serve as the
    basis of a criminal penalty or (b) be used as evidence of his guilt as prescribed
    by KRS 189A.105; (2) evidence of McCarthy’s refusal was otherwise relevant
    because the Commonwealth, faced with proving McCarthy was driving under
    the influence, was entitled to let the jury know it did not have BAC evidence
    because McCarthy refused the blood test; and (3) even if the jury heard that the
    Commonwealth lacked objective scientific evidence of McCarthy’s guilt because
    of his refusal to submit to a blood test, evidence as to whether the officer could
    have secured a warrant for the blood test was not admissible.
    9
    We begin with a review of pertinent KRS Chapter 189A statutes and the
    Birchfield decision.
    I. Kentucky’s Implied-Consent Law
    As the United States Supreme Court describes, the states’ approach to
    combating drunk driving has evolved over time. 
    Birchfield, 136 S. Ct. at 2166
    -
    70. Early DUI laws did not contain a BAC measure to define intoxication and
    case prosecution was largely dependent on a witness’s observations that the
    defendant’s behavior showed signs of intoxication.
    Id. at 2167.
    With scientific
    advancement in the understanding of BAC levels and their relationship to
    impaired driving, even in the absence of behavioral indications of impairment,
    states have defined the minimum BAC level at which a person is illegal to drive.
    Id. DUI laws have
    also evolved to criminalize use of other substances which
    may impair driving. See, e.g., KRS 189A.010(1). In Kentucky,
    [a] person shall not operate or be in physical control of a motor
    vehicle anywhere in this state:
    (a) Having an alcohol concentration of 0.08 or more as measured
    by a scientifically reliable test or tests of a sample of the
    person’s breath or blood taken within two (2) hours of cessation
    of operation or physical control of a motor vehicle;
    (b) While under the influence of alcohol;
    (c) While under the influence of any other substance or
    combination of substances which impairs one’s driving ability;
    (d) While the presence of a controlled substance listed in
    subsection (12) of this section [which includes hydrocodone] is
    detected in the blood, as measured by a scientifically reliable
    test, or tests, taken within two (2) hours of cessation of
    operation or physical control of a motor vehicle;
    10
    (e) While under the combined influence of alcohol and any other
    substance which impairs one’s driving ability; or
    (f) Having an alcohol concentration of 0.02 or more as measured
    by a scientifically reliable test or tests of a sample of the
    person’s breath or blood taken within two (2) hours of cessation
    of operation or physical control of a motor vehicle, if the person
    is under the age of twenty-one (21).
    KRS 189A.010(1). These prohibitions were in effect at the time of McCarthy’s
    arrest.7 See 2016 Ky. Acts ch. 85. For prosecutions under KRS 189A.010(1)(b)
    7 At the time of McCarthy’s arrest KRS 189A.010(5), prescribing a five-year look
    back, set out that one violating KRS 189A.010(1)(a), (b), (c), (d), or (e) shall:
    (a) For the first offense within a five (5) year period, be fined not less than
    two hundred dollars ($200) nor more than five hundred dollars ($500), or
    be imprisoned in the county jail for not less than forty-eight (48) hours
    nor more than thirty (30) days, or both. Following sentencing, the
    defendant may apply to the judge for permission to enter a community
    labor program for not less than forty-eight (48) hours nor more than
    thirty (30) days in lieu of fine or imprisonment, or both. If any of the
    aggravating circumstances listed in subsection (11) of this section are
    present while the person was operating or in physical control of a motor
    vehicle, the mandatory minimum term of imprisonment shall be four (4)
    days, which term shall not be suspended, probated, conditionally
    discharged, or subject to any other form of early release;
    (b) For the second offense within a five (5) year period, be fined not less
    than three hundred fifty dollars ($350) nor more than five hundred
    dollars ($500) and shall be imprisoned in the county jail for not less than
    seven (7) days nor more than six (6) months and, in addition to fine and
    imprisonment, may be sentenced to community labor for not less than
    ten (10) days nor more than six (6) months. If any of the aggravating
    circumstances listed in subsection (11) of this section are present, the
    mandatory minimum term of imprisonment shall be fourteen (14) days,
    which term shall not be suspended, probated, conditionally discharged,
    or subject to any other form of early release;
    (c) For a third offense within a five (5) year period, be fined not less than
    five hundred dollars ($500) nor more than one thousand dollars ($1,000)
    and shall be imprisoned in the county jail for not less than thirty (30)
    days nor more than twelve (12) months and may, in addition to fine and
    imprisonment, be sentenced to community labor for not less than ten
    (10) days nor more than twelve (12) months. If any of the aggravating
    circumstances listed in subsection (11) of this section are present, the
    11
    or (e), it is presumed that a motorist with an alcohol concentration of less than
    0.04 is not under the influence of alcohol and there is no presumption either
    way for a motorist with an alcohol level of 0.04 or greater or less than 0.08, but
    the alcohol concentration may be considered with other evidence in
    determining guilt. KRS 189A.010(3)(a)-(b).
    With DUI charges and case prosecution being dependent upon or
    otherwise aided by BAC levels (and detection of other substances which impair
    driving ability), states have created consequences for a motorist refusing to
    take the scientific tests used to determine BAC, typically a breath test or a
    blood test.8 
    Birchfield, 136 S. Ct. at 2166
    . These consequences are codified in
    what is generally referred to as implied-consent laws.
    Id. With driving being
    a
    privilege regulated by the state, Kentucky, like other states, imposes conditions
    on those who choose to operate a vehicle on its roadways, one being consenting
    to testing for alcohol or other substances if an officer has reasonable grounds
    to believe the motorist is violating Kentucky’s DUI statute, KRS 189A.010(1).
    mandatory minimum term of imprisonment shall be sixty (60) days,
    which term shall not be suspended, probated, conditionally discharged,
    or subject to any other form of early release;
    (d) For a fourth or subsequent offense within a five (5) year period, be
    guilty of a Class D felony. If any of the aggravating circumstances listed
    in subsection (11) of this section are present, the mandatory minimum
    term of imprisonment shall be two hundred forty (240) days, which term
    shall not be suspended, probated, conditionally discharged, or subject to
    any other form of release.
    8   Kentucky’s statute also includes a urine test. See KRS 189A.103(1).
    12
    See id.; Commonwealth v. Duncan, 
    483 S.W.3d 353
    , 355–56 (Ky. 2015); KRS
    189A.103(1).
    Under KRS 189A.103(1), a motorist impliedly consents to testing for
    alcohol or other substances. KRS 189A.103(1) states:
    The following provisions shall apply to any person who operates or
    is in physical control of a motor vehicle or a vehicle that is not a
    motor vehicle in this Commonwealth:
    (1) He or she 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
    or presence of a substance which may impair one’s driving
    ability, if an officer has reasonable grounds to believe that a
    violation of KRS 189A.010(1) or 189.520(1) [(pertaining to
    operating a vehicle which is not a motor vehicle)] has occurred.[9]
    (Emphasis added.)
    If the motorist affirmatively refuses consent–declines to cooperate with a
    test–he faces certain statutorily-defined consequences. At the time of
    McCarthy’s arrest, KRS 189A.105(1) and (2)(a)1 provided:
    (1) A person’s refusal to submit to tests under KRS 189A.103 shall
    result in revocation of his driving privilege as provided in this
    chapter.
    (2)(a) At the time a breath, blood, or urine test is requested, the
    person shall be informed:
    1. That, if the person refuses to submit to such tests, the fact
    of this refusal may be used against him in court as evidence
    of violating KRS 189A.010 and will result in revocation of his
    motorist’s license, and if the person refuses to submit to the
    tests and is subsequently convicted of violating KRS
    189A.010(1) then he will be subject to a mandatory
    9 Other than the addition of the pronouns referring to female defendants, KRS
    189A.103’s content has not changed since its amendment in 2000. See 2007 Ky. Acts
    ch. 85.
    13
    minimum jail sentence which is twice as long as the
    mandatory minimum jail sentence imposed if he submits to
    the tests, and that if the person refuses to submit to the tests
    he will be unable to obtain a hardship license.10
    (Emphasis added.) The Supreme Court’s 2016 Birchfield decision changed the
    landscape for implied-consent laws such as ours by addressing the Fourth
    Amendment implications of both breath and blood tests relied upon by states
    in DUI prosecutions.
    II. Birchfield’s Fourth Amendment Analysis
    The Fourth Amendment provides in relevant part that “[t]he right of the
    people to be secure in their persons, houses, papers, and effects, against
    unreasonable searches and seizures, shall not be violated, and no Warrants
    shall issue, but upon probable cause.” “The purpose of the Fourth Amendment
    is to prevent unreasonable governmental intrusions into the privacy of one’s
    10   KRS 189A.105(2)(a) currently states:
    At the time a breath, blood, or urine test is requested, the person shall
    be informed:
    1. That, if the person refuses to submit to such tests:
    a. The fact of this refusal may be used against him or her in court as
    evidence of violating KRS 189A.010 and will result in suspension
    of his or her driver’s license by the court at the time of
    arraignment; and
    b. Is subsequently convicted of violating KRS 189A.010(1):
    i. For a second or third time within a ten (10) year period, he or
    she will be subject to a mandatory minimum jail sentence which is
    twice as long as the mandatory minimum jail sentence imposed if
    he or she submits to the tests; and
    ii. His or her license will be suspended by the Transportation
    Cabinet.
    14
    person, house, papers, or effects.” United States v. Calandra, 
    414 U.S. 338
    ,
    354 (1974). “In the usual context of a criminal trial, the defendant is entitled
    to the suppression of, not only the evidence obtained through an unlawful
    search and seizure, but also any derivative use of that evidence.”
    Id. As noted above,
    drawing blood to test for BAC constitutes a search under the Fourth
    Amendment. 
    Schmerber, 384 U.S. at 767
    –68. The pertinent question then
    under a Fourth Amendment analysis is whether such a search is reasonable.
    
    Birchfield, 136 S. Ct. at 2173
    . The Fourth Amendment generally requires
    police to obtain a valid search warrant in order for a search to be reasonable
    , id. (citing Kentucky v.
    King, 
    563 U.S. 452
    , 459 (2011)), but consent is a
    recognized exception which renders a warrantless search reasonable.
    Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219 (1973).
    Birchfield, consolidating two cases from North Dakota and a case from
    Minnesota, addressed whether the Fourth Amendment is violated when
    implied-consent laws go beyond the typical penalties for noncompliance (e.g.,
    license suspension) and attach criminal consequences to a motorist’s refusal of
    a breath or blood test after being lawfully arrested as a DUI suspect. While
    common consequences of refusing a test are suspension or revocation of the
    motorist’s license and use of the refusal of a test as evidence of likely
    intoxication in a DUI prosecution, a defendant facing a greater penalty for
    driving with an elevated BAC or for repeat violations has incentive to refuse
    
    testing. 136 S. Ct. at 2166
    , 2169. Some states, like North Dakota and
    15
    Minnesota, have made it a separate crime to refuse a breath or blood test.
    Id. at 2169-70.11
    In each of the three Birchfield cases, the defendant was arrested for
    drunk driving and warned of the consequences of refusing the BAC test.
    Id. at 2170-72.
    However, each defendant responded differently to the warning.
    Birchfield, after being informed blood test refusal would lead to criminal
    punishment, refused to let his blood be drawn, was charged with a
    misdemeanor violation of North Dakota’s refusal statute, entered a conditional
    guilty plea, and argued on appeal that the Fourth Amendment prohibited
    criminalizing his refusal to submit to the test.
    Id. at 2170-71.
    Beylund, upon
    being informed that test refusal is a crime, agreed to have his blood drawn and
    with a BAC level three times North Dakota’s legal limit, had his license
    suspended for two years after an administrative hearing; he argued on appeal
    that his consent to the blood test was coerced by the officer’s warning.
    Id. at 2172
    . 
    Bernard, having been informed that refusal to submit to a BAC test is a
    crime, refused to take a breath test, was charged with test refusal in the first
    degree, and had his charges dismissed by the Minnesota District Court on the
    basis that the warrantless breath test was not permitted under the Fourth
    11  In North Dakota, in addition to mandatory addiction treatment, refusing to
    take blood, breath or urine tests exposed the defendant to “sentences rang[ing] from a
    mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and
    imprisonment of at least one year and one day (for serial offenders).”
    Id. at 2170.
    The
    Birchfield Court also noted that “test refusal in Minnesota [could] result in criminal
    penalties ranging from no more than 90 days’ imprisonment and up to a $1,000 fine
    for a misdemeanor violation to seven years’ imprisonment and a $14,000 fine for
    repeat offenders.”
    Id. at 2171.
                                              16
    
    Amendment.
    Id. at 2171.
    After the North Dakota and Minnesota Supreme
    Courts rejected Fourth Amendment arguments in the defendants’ respective
    cases, the United States Supreme Court “granted certiorari in all three cases
    and consolidated them . . . in order to decide whether motorists lawfully
    arrested for drunk driving may be convicted of a crime or otherwise penalized
    for refusing to take a warrantless test measuring the alcohol in their
    bloodstream,” recognizing that the initial question was whether a motorist may
    be compelled to take a blood test or a breath test in the absence of a warrant.
    Id. at 2172
    . 
    If a warrantless test is permissible, then a defendant’s refusal to
    take the required test may be criminalized.
    Id. at 2173.
    Upon considering the factual differences between the three cases, the
    Supreme Court stated:
    Despite these differences, success for all three petitioners
    depends on the proposition that the criminal law ordinarily may
    not compel a motorist to submit to the taking of a blood sample or
    to a breath test unless a warrant authorizing such testing is issued
    by a magistrate. If, on the other hand, such warrantless searches
    comport with the Fourth Amendment, it follows that a State may
    criminalize the refusal to comply with a demand to submit to the
    required testing, just as a State may make it a crime for a person
    to obstruct the execution of a valid search warrant.
    Id. at 2172
    (citations omitted).
    The Court began its analysis “by considering whether the [breath and
    blood] searches demanded in these cases were consistent with the Fourth
    Amendment,” and particularly the states’ contention that the searches were
    reasonable, following each defendant’s arrest.
    Id. at 2173-85.
    Addressing for
    the first time whether the search-incident-to-arrest warrant exception applied
    17
    to a DUI defendant’s breath or blood, the Court performed the Fourth
    Amendment reasonableness analysis and examined the degree to which the
    breath and blood tests intrude upon an individual’s privacy and the degree to
    which the tests are needed to promote legitimate governmental interests.
    Id. at 2174-83.
    The Court concluded categorically: “Because breath tests are
    significantly less intrusive than blood tests and in most cases amply serve law
    enforcement interests, . . . a breath test, but not a blood test, may be
    administered as a search incident to a lawful arrest for drunk driving.”
    Id. at 2185
    . 
    As to blood tests, the Court considered the necessity of piercing the skin
    to extract a vital bodily fluid versus the ease of administering a breath test, the
    increased expectation of privacy in blood as compared to breath, and the
    information which may be obtained from a blood sample beyond a mere BAC
    reading.
    Id. at 2178.
    The Court concluded that unlike breath tests, blood tests
    do not qualify for categorical exception from the warrant requirement under the
    search-incident-to-arrest doctrine as “[b]lood tests are significantly more
    intrusive, and their reasonableness must be judged in light of the availability of
    the less invasive alternative of a breath test.”
    Id. at 2184.
    Exigent
    circumstances may justify a warrantless blood test in a given case but
    otherwise the police must seek a warrant.12
    Id. 12
     The Supreme Court confronted an exigent circumstances case soon after
    Birchfield. In Mitchell v. Wisconsin, 
    139 S. Ct. 2525
    (2019), the Court addressed the
    constitutionality of a Wisconsin statute which authorized a warrantless blood draw
    from an unconscious DUI suspect incapable of providing a breath test. The Supreme
    Court granted review to decide “[w]hether a statute authorizing a blood draw from an
    18
    The Birchfield Court next considered the states’ alternative argument
    that a search warrant for a blood test was unnecessary because consent was
    implied under their respective implied-consent statutes.
    Our prior opinions have referred approvingly to the general concept
    of implied-consent laws that impose civil penalties and evidentiary
    consequences on motorists who refuse to comply. See, e.g.,
    [Missouri v.] McNeely, [
    569 U.S. 141
    , 160-61 (2013)] (plurality
    opinion); [South Dakota v.] Neville, [
    459 U.S. 553
    , 560 (1983)].
    Petitioners do not question the constitutionality of those laws, and
    nothing we say here should be read to cast doubt on them.
    It is another matter, however, for a State not only to insist
    upon an intrusive blood test, but also to impose criminal penalties
    on the refusal to submit to such a test. There must be a limit to
    the consequences to which motorists may be deemed to have
    consented by virtue of a decision to drive on public roads.
    . . . [Applying the Fourth Amendment “reasonableness”
    standard,] we conclude that motorists cannot be deemed to have
    consented to submit to a blood test on pain of committing a
    criminal offense.
    Id. at 2185
    -86.
    
    Having outlined the intersection of implied-consent laws with the Fourth
    Amendment, the Supreme Court addressed the consequences for the three
    individual defendants. Given the legality of a warrantless breath test, Bernard
    “had no right to refuse,” and was properly prosecuted for his refusal to provide
    a breath test.
    Id. at 2186.
    By contrast, Birchfield had the right to refuse a
    warrantless blood test and his conviction for asserting that constitutional right
    had to be reversed.
    Id. As for the
    third defendant, Beylund, who submitted to
    unconscious motorist provides an exception to the Fourth Amendment warrant
    requirement.”
    Id. at 2532.
    The Supreme Court found that the statute in question did
    not violate the Fourth Amendment provision against unreasonable searches because it
    fit into the exigent circumstance exception.
    Id. at 2539. 19
    the blood test and was convicted, his case was remanded for an assessment of
    the voluntariness of his consent under the totality of the circumstances.
    Id. With this guidance,
    we turn to the issues in McCarthy’s case.
    III. The Trial Court Properly Held That the Commonwealth
    Could Not Penalize McCarthy’s Refusal to Submit to a Blood
    Test as Provided in KRS 189A.105
    The first issue in this case is whether the trial court properly concluded
    that McCarthy could not be subject to an enhanced criminal penalty for refusal
    to submit to a blood test. As quoted above, KRS 189A.105(2)(a) provides that a
    person who refuses a test and is subsequently convicted of DUI is subject “to a
    mandatory minimum jail sentence which is twice as long as the mandatory
    minimum jail sentence imposed if he submits to the tests.” Birchfield holds
    that because warrantless blood tests are invalid under the Fourth Amendment
    absent a valid exception to the warrant requirement such as exigent
    circumstances a defendant cannot be criminally sanctioned for refusing to
    consent.
    The Commonwealth concedes the KRS 189A.105 sanction is a criminal
    penalty but maintains as it did before the trial court and Court of Appeals, that
    Birchfield’s holding is narrowly tailored to address only those state laws which
    attach separate criminal sanctions to refusals. Although the Commonwealth
    views Birchfield to be limited to statutes that make refusal a crime independent
    of any DUI charge, the Supreme Court did not make that distinction.
    Admittedly, Birchfield states at one point that “motorists cannot be deemed to
    have consented to submit to a blood test on pain of committing a criminal
    20
    offense,” 
    135 S. Ct. 2186
    , but the Court states a broader objective in granting
    certiorari: “We granted certiorari in all three cases and consolidated them . . .
    in order to decide whether motorists lawfully arrested for drunk driving may be
    convicted of a crime or otherwise penalized for refusing to take a warrantless
    test measuring the alcohol in their 
    bloodstream.” 136 S. Ct. at 2172
    (emphasis
    added). Later in specifically addressing implied-consent laws, the Court
    criticizes such laws as incapable of providing valid consent when the State
    “impose[s] criminal penalties” on the refusal to take “an intrusive blood test.”
    Id. at 2185
    (emphasis added). Simply put, Birchfield’s guidance is not limited
    to statutes which create separate criminal charges for refusal alone. The
    mandatory additional jail time imposed in KRS 189A.105 following conviction
    for DUI is an unauthorized criminal penalty and was properly considered as
    such by the trial court.
    The Commonwealth also cites the Court of Appeals’ analysis in 
    Brown, 560 S.W.3d at 873
    , to persuade this Court that Birchfield should not apply to
    Kentucky’s implied-consent statutory scheme because our laws are not as
    coercive as those in states which criminalize refusal to consent to a test
    regardless of whether the defendant is ultimately convicted of DUI. As noted
    earlier, Brown concluded that mandating that an accused undergo an intrusive
    blood test or else accrue a criminal charge was coercive while simply increasing
    the mandatory minimum jail sentence upon any eventual conviction of DUI
    was not. The Commonwealth maintains it is evident that this added penalty
    upon a DUI conviction would not coerce consent.
    21
    In this vein, the Commonwealth, citing KRS 189A.010(5)(a), points out
    that a refusal carries no minimum sentence on first-offense DUI, and under
    KRS 189A.010(5)(b), (c), and (d), respectively, refusal is just an aggravating
    circumstance on second, third, or fourth (or greater) DUI offenses.13 Under
    KRS 189A.105(2)(a)1, only if a person is convicted of the DUI offense after they
    refuse the test will they be subject to the mandatory minimum sentence. The
    Commonwealth further notes that a person who complies with the blood or
    breath test is not automatically entitled to the minimum sentence; DUI
    penalties provide a range of fines and a range of possible jail time; and the
    mandatory doubling of the minimum sentence due to refusal, not adding jail
    time on top of the maximum possible sentence, remains within the penalties
    authorized for the DUI. Finally, the Commonwealth emphasizes that viewing
    the penalty for refusal in KRS 189A.105 as subjecting a person to increased
    penalties assumes that the person is entitled to the minimum sentence if they
    consent to the test, when in fact a jury could impose the maximum sentence
    regardless of whether the defendant takes the test or not.
    Accepting all of these facts as true does not change our conclusion that
    KRS 189A.105 imposes an unauthorized penalty on a motorist’s refusal to
    submit to a warrantless blood test. That the penalty does not apply until after
    the defendant is convicted of DUI does not lessen its punitive nature nor does
    the fact that the mandatory doubled minimum sentence is within the range of
    13   See n.7 for contents of KRS 189A.010(5) at the time of McCarthy’s arrest.
    22
    potential penalties even for a person who does consent to a blood test. Here,
    McCarthy’s penalty for refusal if convicted of violating KRS 189A.010(5)(d)
    would have doubled his mandatory minimum jail sentence from 120 to 240
    days in jail. See KRS 189A.010(5)(d); KRS 189A.010(8).14 While a defendant
    may or may not have an idea of the minimum sentence they are facing, a
    reasonable person can at least recognize from the warning that by making the
    choice to refuse the test, they are subject to a higher minimum penalty.
    Although the defendant obviously could face a sentence higher than the
    mandatory minimum for the DUI offense if convicted, it is absolutely clear that
    the sentence will be higher than the mandatory minimum due to the refusal.
    Or said another way, upon a DUI conviction, because of the refusal, the
    defendant is subject to a criminal penalty that would not apply otherwise, and
    that result is not allowed under Birchfield.
    In closing we acknowledge that some courts have read Birchfield very
    narrowly and have concluded that it does not prohibit statutes such as ours
    that make refusal to consent to a blood test grounds for enhanced penalties
    upon conviction for DUI. See, e.g., Maine v. LeMeunier-Fitzgerald, 
    188 A.3d 183
    (Me. 2018); Vermont v. Rajda, 
    196 A.3d 1108
    (Vt. 2018). Other states
    recognize, as we do, that the Supreme Court spoke in terms of “criminal
    penalties” in Birchfield, and a criminal penalty imposed after conviction for DUI
    is no less a penalty than one imposed by a freestanding criminal statute. See,
    14 See n.2 for contents of KRS 189A.010(5)(d) and KRS 189A.010(8) at the time
    of McCarthy’s indictment.
    23
    e.g., Pennsylvania v. Monarch, 
    200 A.3d 51
    (Pa. 2019); Wisconsin v. Dalton, 
    914 N.W.2d 120
    (Wis. 2018); New Mexico v. Vargas, 
    404 P.3d 416
    (N.M. 2017). The
    trial court did not err in concluding that McCarthy could not be subjected to an
    enhanced penalty due to his refusal to submit to a warrantless Fourth
    Amendment search in the form of a blood test.
    IV. The Trial Court Properly Held That McCarthy’s Refusal to
    Consent Could Not Be Used Against Him Pursuant to KRS 189A.105
    as Evidence of His Guilt of Driving Under the Influence
    Next we turn to the trial court’s ruling that the Commonwealth could not
    use McCarthy’s refusal to consent to the blood test against him at trial even
    though KRS 189A.105(2) specifically provides that “the fact of [a] refusal may
    be used against him in court as evidence of violating KRS 189A.010 [the DUI
    statute].” In an excerpt from Birchfield quoted above, the Supreme Court
    observed that it had previously approved state laws attaching evidentiary
    consequences to a motorist’s refusal to submit to a test, citing South Dakota v.
    Neville, 
    459 U.S. 553
    (1983).
    In Neville, the motorist refused to submit to a blood alcohol test after
    being warned that his refusal could result in the loss of his license.
    Id. at 555.
    Apparently through oversight, the motorist was not informed that his refusal
    could also be used as evidence against him at trial.
    Id. at 565.
    Addressing the
    argument that admitting the evidence of refusal offended Neville’s Fifth
    Amendment right against self-incrimination, the Supreme Court held “that a
    refusal to take a blood-alcohol test, after a police officer has lawfully requested
    it [and offered a valid choice of either submitting to the test or refuse and
    24
    endure the licensure and evidentiary consequences], is not an act coerced by
    the officer, and thus is not protected by the privilege against self-
    incrimination.”
    Id. at 564.
    The Supreme Court further held that although the
    motorist was not warned that the test results could be used against him, the
    other warning received put the motorist on notice that other adverse
    consequences may result from refusing the test and thus use of the evidence of
    refusal after the warning comported with the fundamental fairness required by
    Due Process.
    Id. at 566.
    Contrary to the Commonwealth’s position, Neville does not answer the
    issue before us. There the Court referred to “simple blood-alcohol test[s]” as
    “safe, painless and commonplace,”
    id. at 563,
    a premise certainly undermined
    as to blood tests after Birchfield, which found the intrusive tests unreasonable
    and held a warrant is required absent exigent circumstances, a recognized
    exception to the warrant requirement. Moreover, Neville did not involve a
    refusal under threat of criminal penalties. In any event and more importantly,
    Neville was focused solely on the Fifth Amendment15 and Birchfield now
    outlines the Fourth Amendment ramifications of BAC tests. One leading
    commentator has noted this distinction is significant:
    While it has been established as a Fifth Amendment matter
    that a defendant being prosecuted for driving under the influence
    may not object to the admission in evidence against him his
    refusal to submit to a sobriety test at the time of arrest, what of the
    claim that such evidence is inadmissible as a Fourth Amendment
    15Similarly, Hager v. Commonwealth, 
    702 S.W.2d 431
    (Ky. 1986), cited in the
    concurring in part, dissenting in part opinion, is also solely focused on the Fifth
    Amendment.
    25
    matter? The Court in Birchfield noted in passing (just as it did
    earlier in McNeely) that “evidence of the motorist’s refusal is
    admitted as evidence of likely intoxication in a drunk-driving
    prosecution,” and later cautioned that “nothing we say here should
    be read to cast doubt” on such “evidentiary consequences on
    motorists who refuse to comply,” which has been relied upon by
    those post-Birchfield lower court decisions that have upheld
    admission of such refusal evidence in those circumstances. But
    that assertion is misleading at best, for Birchfield’s emphasis on
    the distinction between when a defendant’s refusal to submit is
    constitutionally significant (i.e., for a blood test absent exigent
    circumstances) and when it is not (i.e., for all breath tests and for
    other blood tests) is, by well-established pre-existing authority,
    also relevant to the question of whether refusal may be admitted
    into evidence to show defendant’s guilt. What the cases indicate is
    that when defendant’s refusal was within the context of a
    recognized search-warrant-required category, then the Fourth
    Amendment prohibits admission of that refusal into evidence. . . .
    But on the other hand, when it is first determined that no warrant
    was required in any event (e.g., taking a breath sample), comment
    on the refusal is permissible.
    4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §
    8.2(l) (6th ed., Thomson Reuters 2020) (footnotes and citations omitted).
    As the Court of Appeals aptly noted in this case, Kentucky courts have
    already recognized that where a search warrant was required to conduct a
    search, a defendant’s refusal to consent to that search cannot be used against
    him as evidence of guilt. In Deno v. Commonwealth, 
    177 S.W.3d 753
    (Ky.
    2005), this Court held that a defendant charged with first-degree rape could
    not have his refusal to consent to a warrantless search of his bodily fluids used
    against him at trial. Citing cases from the United States Court of Appeals for
    the Ninth Circuit, including three cases noted in the LaFave treatise, we held
    that because the defendant was constitutionally entitled to withhold consent
    his exercise of that right “was privileged conduct that cannot be considered as
    26
    evidence of criminality.”
    Id. at 761.
    The trial court’s admission of the evidence
    was deemed “a violation of [Deno’s] rights under the Fourth Amendment and
    Section 10 of the Constitution of Kentucky.”
    Id. at 762.
    The Commonwealth attempts to distinguish Deno, noting that Deno was
    not under arrest as McCarthy was and that the Deno court specifically
    excluded DUI cases from its analysis.16 Neither of these points matters post-
    Birchfield because the Supreme Court has now held that a blood test cannot be
    constitutionally justified in DUI cases under the search-incident-to-arrest
    exception. Prior to Birchfield, many courts, including the Deno Court, assumed
    that the “incident to arrest” exception to the warrant requirement applied in
    the case of blood tests following DUI arrests. Birchfield settled that issue and
    thus the distinctions Deno made between DUI cases and non-DUI cases no
    longer matter. In all cases, a criminal defendant has the constitutional right to
    refuse consent to a blood test.
    Later, in Coulthard, 
    230 S.W.3d 572
    , this Court confirmed its
    commitment to Deno, but recognized that the prohibition on admitting evidence
    of refusal to consent to a warrantless search, in some circumstances, is not
    absolute. In that manslaughter case, we held Coulthard’s refusal to consent to
    fingerprint sampling could not be offered by the Commonwealth as evidence of
    his guilt, but it could be used for rebuttal and to impeach Coulthard’s
    16 The Deno Court described the issue presented as “whether the refusal of one,
    other than a DUI suspect, to submit to a warrantless seizure of bodily fluids may be
    introduced at trial and argued as evidence of 
    guilt.” 177 S.W.3d at 761
    .
    27
    testimony that he acted in self-defense.
    Id. at 582
    -84. 
    Coulthard initially
    claimed no knowledge of the crime.
    Id. at 582
    -83. 
    As the investigation
    progressed, officers found fingerprints at the crime scene and asked if he would
    agree to fingerprinting.
    Id. at 583.
    Coulthard refused and later changed his
    story from having no knowledge of the shooting to having acted in self-defense.
    Id. The Court noted
    that in the context of Fifth Amendment rights the United
    States Supreme Court, when analyzing whether a constitutional right has been
    impermissibly burdened, has deemed it appropriate to consider the legitimacy
    of the challenged governmental practice.
    Id. at 582
    (citing Jenkins v. Anderson,
    
    447 U.S. 231
    (1980)). Emphasizing that “[a]s the traditional truth testing
    devices of the adversarial process, impeachment and rebuttal are vital to a just
    and fair trial,” the Court held those important devices should weigh heavily
    when counterbalancing “constitutional privilege” claims.
    Id. at 583.
    Generally, such as in Deno, exercising one’s privilege to be free of
    warrantless searches is simply not probative (or has low probative
    value) to a determination of guilt, and thus, the defendant’s right
    to not be penalized for exercising such a privilege is paramount.
    However, in circumstances when such evidence is probative for
    some purpose other than to simply penalize the defendant for
    exercising a constitutional right, then notions of fair play and the
    need to preserve the truth-testing functions of the adversarial
    process may outweigh the defendant’s interest in suppressing the
    evidence.
    Id. at 584
    (internal citations omitted). While not admissible as evidence of
    Coulthard’s guilt of manslaughter, his refusal was properly admitted through
    rebuttal evidence and through impeachment of Coulthard’s testimony claiming
    self-defense.
    28
    In this case, the Commonwealth intended to introduce McCarthy’s
    refusal of a blood test as evidence of his guilt of DUI. Indeed, that is precisely
    what KRS 189A.105(2) allowed but Birchfield now establishes that a DUI
    defendant has a constitutional right to withhold consent to a blood test. Under
    Deno, use of McCarthy’s now-constitutionally-recognized right to refuse a blood
    test as evidence of guilt of DUI was improper, and unlike in Coulthard, nothing
    arose via McCarthy’s defense of the charges that would have rendered it
    admissible as rebuttal or impeachment evidence.17 The trial court properly
    held that McCarthy’s refusal to consent to the blood test could not be offered as
    evidence of his guilt, despite the statutory statement to that effect in KRS
    189A.105.
    V. As the Court of Appeals Correctly Held, the Trial Court Erred in
    Allowing the Commonwealth to Introduce the Refusal to Explain Its
    Lack of Scientific Evidence That McCarthy Was Driving Under the
    Influence
    Although the trial court recognized that McCarthy’s refusal to submit to
    a blood test should not be admitted as evidence of his guilt of DUI, it
    nevertheless was persuaded to allow the evidence to be admitted at trial. The
    Commonwealth insisted that jurors are aware of the scientific evidence
    typically available in a DUI prosecution and consequently the Commonwealth
    should be allowed to explain that such evidence did not exist in this case
    17  We recognize that the trial court allowed McCarthy to comment on the
    absence of scientific testing establishing his BAC, a ruling that seemed to stem from
    the trial court’s erroneous conclusion that the Commonwealth should be able to
    present the refusal evidence to explain the absence of any scientific testing.
    29
    because McCarthy refused to submit to a blood test. Even though admitted
    ostensibly for this limited purpose, the record reflects that the refusal evidence
    came in without any admonition that the jury consider that evidence solely for
    this limited purpose.
    We agree with McCarthy and the Court of Appeals that the refusal
    evidence was inadmissible under the principles clearly enunciated in Deno and
    Coulthard and should not have been accepted through the back door simply
    because the Commonwealth wanted to explain why it did not have scientific
    evidence to prove its case. This ruling eviscerated the protections accorded
    McCarthy’s Fourth Amendment rights as recognized in Deno and Coulthard.
    We also reject the Commonwealth’s stated premise for introducing the
    evidence. The absence of scientific evidence was primarily the result of the
    Commonwealth’s own actions or rather inactions. As recognized in Birchfield,
    officers could have properly asked McCarthy to submit to a breath test as
    opposed to the more invasive blood test. If he submitted to the breath test, the
    Commonwealth would have had the desired scientific BAC evidence and if he
    refused, nothing in Birchfield, Deno or Coulthard, would have precluded
    admission of that refusal of a breath test as evidence against him in the DUI
    prosecution. The difficulty the Commonwealth found itself in with regard to an
    absence of scientific evidence was largely its own doing.
    Finally, although the refusal evidence was improperly admitted, we agree
    with the Court of Appeals that once admitted McCarthy was entitled to respond
    appropriately. He should have been allowed to raise the issue of the
    30
    Commonwealth’s right to seek a warrant for the blood test; his refusal was not
    the end of the officer’s options for obtaining a blood test that night, even if the
    officer was personally unaware of the availability of a warrant. So, the refusal
    evidence should never have been admitted in the first instance but once it was
    the trial court erred in limiting McCarthy’s response to that evidence.18
    VI. The Erroneous Admission of the Refusal Evidence Was Not
    Harmless Beyond a Reasonable Doubt, Requiring Reversal of
    McCarthy’s Conviction
    Having concluded that the trial court erred by allowing the
    Commonwealth to introduce into evidence McCarthy’s refusal to submit to the
    blood test, we consider whether the constitutional error was harmless beyond a
    reasonable doubt because, if not, the conviction must be set aside. 
    Chapman, 386 U.S. at 23
    –24. Chapman advises:
    An error in admitting plainly relevant evidence which possibly
    influenced the jury adversely to a litigant cannot . . . be conceived
    of as harmless. . . . [Before a federal constitutional error can be
    held harmless beyond a reasonable doubt] we consider whether
    there is a reasonable possibility that the evidence complained of
    might have contributed to the conviction.
    Id. (internal citation and
    quotation omitted).
    18  The Commonwealth also raises the very confusing argument that because
    McCarthy refused the blood test, he lacks standing to challenge the search, citing
    Commonwealth v. Duncan, 
    483 S.W.3d 353
    (Ky. 2015). However, as we explained in
    Warick v. Commonwealth, 
    592 S.W.3d 276
    (Ky. 2019), rather than focusing on
    standing, a defendant’s right to raise a Fourth Amendment claim is properly analyzed
    under substantive Fourth Amendment doctrine. Here, McCarthy has a clear
    cognizable Fourth Amendment interest in the search at issue–“any compelled
    intrusion into the human body implicates significant, constitutionally protected
    privacy interests.” 
    McNeely, 569 U.S. at 159
    ; accord 
    Birchfield, 136 S. Ct. at 2178
    .
    Consequently, McCarthy’s claim for relief because of an alleged infringement of his
    constitutional right to refuse consent to a warrantless search of his blood is one
    properly before the courts.
    31
    “The Court has the power to review the record de novo in order to
    determine an error’s harmlessness. In so doing, it must be determined
    whether the [Commonwealth] has met its burden of demonstrating that the
    admission” of McCarthy’s refusal to submit to the blood test did not contribute
    to McCarthy’s conviction. Arizona v. Fulminante, 
    499 U.S. 279
    , 295–96 (1991)
    (internal citations omitted). “The admission of [the refusal is] quantitatively
    assessed in the context of other evidence presented in order to determine
    whether its admission is harmless beyond a reasonable doubt.”
    Id. at 280
    (citation omitted). “To say that an error did not ‘contribute’ to the ensuing
    verdict is not, of course, to say that the jury was totally unaware of that feature
    of the trial later held to have been erroneous,” but “to find that error
    unimportant in relation to everything else the jury considered on the issue in
    question, as revealed in the record.” Yates v. Evatt, 
    500 U.S. 391
    , 403 (1991).
    Our precedent acknowledges the reasonableness of inferring that one is
    guilty of being intoxicated when he refuses to take a BAC test, the belief being
    that the accused sober person would take a test to provide evidence in his
    favor, while the accused intoxicated person would refuse a test to avoid
    producing evidence against himself. See Cook v. Commonwealth, 
    129 S.W.3d 351
    , 360 (Ky. 2004). Nevertheless, a refusal may not have a relationship to
    guilt. When a defendant decides to testify, he may be asked his reason for
    refusing a test, and that reason may have no relation to his consciousness of
    guilt. But when a defendant decides not to testify, even if the prosecution does
    not explicitly comment that the defendant’s refusal of the test is an indication
    32
    of guilt, without an admonition otherwise,19 the jury is left with the task of
    drawing reasonable inferences from the evidence.
    Given the jury could reasonably infer McCarthy’s guilt from Officer
    Fleury’s testimony that after arresting McCarthy he refused the test, we must
    assess the admission of the refusal in the context of other evidence presented
    in order to determine whether its admission was harmless beyond a reasonable
    doubt. We consider various factors including “the importance of the witness’
    testimony in the prosecution’s case, whether the testimony was cumulative, the
    presence or absence of evidence corroborating or contradicting the testimony of
    the witness on material points, the extent of cross-examination otherwise
    permitted, and, of course, the overall strength of the prosecution’s case.”
    Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986) (citations omitted). In order
    to convict McCarthy, the Commonwealth had the burden to prove beyond a
    reasonable doubt that while operating the motor vehicle, McCarthy was under
    the influence of alcohol and/or any other substance(s) which impaired his
    driving ability.
    Officer Fleury testified that he was parked in an alley near a bar and
    shortly after he heard a vehicle spinning tires on gravel, he saw a vehicle
    traveling at a high rate of speed from the bar’s parking lot into another parking
    19 Although the trial court discussed giving a limiting instruction during the
    hearing of McCarthy’s motion to exclude his refusal from evidence, a KRE 105
    admonition was not requested during trial. Without the issue before us, we do not
    address whether such an admonition would have cured any error from the evidence as
    introduced.
    33
    lot, turn onto the roadway, fishtail, almost lose control, and continue to travel
    at a high rate of speed down the street. Officer Fleury caught up with the
    vehicle which McCarthy was driving, and McCarthy turned onto a side street
    and stopped.
    Officer Fleury described his initial assessment of McCarthy which
    included red glassy eyes, a little bit of slurred speech, being a little lethargic, a
    pungent smell of alcohol coming from the vehicle, and the smell of alcohol
    present when McCarthy was removed from the vehicle. He described
    McCarthy’s difficulties on the field sobriety tests, including difficulties on the
    three eye tests, such as jerkiness and lack of smooth pursuit in the eyes; not
    being able to maintain balance on one leg without swaying and using his arms
    for balance and contemporaneously losing count, repeating and jumbling
    numbers; swaying, using his arms for balance, and not being able to
    continuously walk in a straight line because of stopping and also stepping off
    the line. The Commonwealth played a video of the stop and field sobriety tests
    for the jury and the jury requested to view it a second time during deliberation.
    The driving behaviors which caused Officer Fleury to stop McCarthy were not
    part of the video.
    Officer Fleury was cross-examined about McCarthy’s driving behavior
    shown on the video, driving which did not indicate impairment. Defense
    counsel, while playing the video, also questioned Officer Fleury about his
    interpretation of McCarthy’s field sobriety test behavior, specifically what he
    viewed as indicating impairment. Officer Fleury explained that his description
    34
    of McCarthy hopping referred to McCarthy moving his foot in order to maintain
    his balance and, at one point, his assessment of slurred speech came from
    McCarthy’s change in pitch.
    Three witnesses who spent time with McCarthy that evening testified.
    None of them knew McCarthy was prescribed pain medicine or was aware if
    McCarthy was taking any, but all three testified they did not observe McCarthy
    drinking alcohol that evening. One witness who did not go to the bar testified
    McCarthy stated he was going to call his friends and offer to be a designated
    driver that evening. Two of the witnesses went to the bar with McCarthy about
    11:00 p.m., one of whom had not been drinking alcohol and was sober when
    the stop occurred. That witness testified that he would not have ridden with
    McCarthy if he was impaired and as a licensed driver, he could have driven.
    Although the jury heard on the video McCarthy tell Officer Fleury during the
    1:00 a.m. stop that he went to the bar to pick up his friends, the two witnesses
    testified that was not the circumstance. The jury also heard McCarthy provide
    inconclusive answers to Officer Fleury’s question as to whether he had been
    drinking before McCarthy denied that he had been drinking.
    The Commonwealth during its opening statement informed the jury that
    it would not be presenting BAC results as part of its evidence of impairment
    because McCarthy refused the test. During trial, the Commonwealth
    introduced McCarthy’s refusal to take the test. Because McCarthy did not
    testify, his reason for refusing the blood test was not offered and without an
    35
    admonition from the trial court, the jury could reasonably infer that McCarthy
    refused the blood test because he was intoxicated.
    On its review, the Court of Appeals concluded that admitting McCarthy’s
    refusal was not harmless beyond a reasonable doubt “in light of the weak
    evidence used to convict” McCarthy. Having considered the record, we find this
    a close case. With the video evidence, the jury was able to see some of
    McCarthy’s driving behavior and, except for McCarthy’s eye movement during
    the eye specific tests, McCarthy’s field sobriety performance, which Officer
    Fleury relied upon to arrest McCarthy. McCarthy’s performance was not
    perfect, but defense counsel challenged Officer Fleury’s interpretation of the
    behaviors he viewed as indicative of impairment and the fact that McCarthy did
    not “fail” any test.
    Under the standard for determining whether admission of the blood test
    refusal into evidence must result in a reversal of McCarthy’s conviction–is there
    a reasonable possibility that the evidence complained of might have
    contributed to the conviction–we agree with the Court of Appeals. Officer
    Fleury’s testimony was the foundation of the Commonwealth’s case and his
    testimony about the refusal was not cumulative. McCarthy chose not to testify,
    which left the jury, absent an admonition to the contrary, free to infer
    McCarthy’s consciousness of guilt from the refusal. With the Commonwealth’s
    evidence being less than overwhelming and McCarthy having credible
    witnesses in his favor, a reasonable possibility exists that the inference of guilt
    associated with the refusal tainted the jury’s view of McCarthy’s behavior
    36
    during the stop and performance on the field sobriety tests, contributing to his
    conviction. Under these circumstances, we cannot say the erroneous
    admission of the refusal evidence was harmless beyond a reasonable doubt.
    CONCLUSION
    For the foregoing reasons, the Court of Appeals’ decision is affirmed, and
    this matter is remanded to Daviess Circuit Court for further proceedings
    consistent with this Opinion.
    All sitting. Minton, C.J.; Keller, Lambert, and Nickell, JJ., concur.
    VanMeter, J., concurring in part and dissenting in part by separate opinion in
    which Conley, J., joins.
    VANMETER, J., CONCURRING IN PART AND DISSENTING IN PART.
    Respectfully, I concur in part and dissent in part. I agree that McCarthy’s
    refusal to permit the blood draw cannot be used to enhance his DUI penalty. I
    dissent however from so much of the majority opinion as holds that McCarthy’s
    refusal cannot be admitted into evidence, as statutorily permitted under KRS
    189A.105. The majority opinion is predicated largely on an expansive
    interpretation of Birchfield v. North Dakota, 
    136 S. Ct. 2160
    (2016). At issue in
    Birchfield was whether the Fourth Amendment permitted North Dakota to
    criminalize Birchfield’s refusal to submit to a chemical test, as a stand-alone
    act, in an effort to coerce his acquiescence.
    Id. at 2185
    . 
    While the Court
    distinguished between blood and breath tests, significantly, it stated,
    Our prior opinions have referred approvingly to the general concept
    of implied-consent laws that impose civil penalties and evidentiary
    consequences on motorists who refuse to comply. See, e.g.,
    37
    [Missouri v.] McNeely, [569 U.S. ____, 
    133 S. Ct. 1552
    , 1565–66
    (2013)] (plurality opinion); 
    Neville, supra, at 560
    , 
    103 S. Ct. 916
    .
    Petitioners do not question the constitutionality of those laws,
    and nothing we say here should be read to cast doubt on 
    them. 136 S. Ct. at 2185
    (emphasis added). Two points. First, the Supreme Court
    explicitly tells us that the evidentiary consequence of McCarthy’s refusal has
    no constitutional implication. The majority opinion therefore errs in imposing
    one. And second, if an evidentiary prohibition exists, that prohibition must be
    found in our state law. In my view, the majority erroneously extrapolates such
    a prohibition primarily from Deno v. Commonwealth, 
    177 S.W.3d 753
    (Ky.
    2005).
    Without unduly lengthening this opinion, suffice to note that in Deno,
    this Court drew valid distinctions between its facts and those in
    Commonwealth v. Hager, 
    702 S.W.2d 431
    (Ky. 1986), involving a DUI arrest. In
    Hager, this Court held as constitutional the ability to comment on a
    defendant’s refusal to submit to a blood-alcohol test.
    Id. at 432
    (citing South
    Dakota v. Neville, 
    459 U.S. 553
    (1983)). Admittedly, the test in Hager was a
    breath test, but the Deno court’s distinction was not based on the type of test,
    breath or blood. Rather, it was based on the non-exigent circumstances of the
    police investigation of Deno and the fact that he was not then under 
    arrest. 177 S.W.3d at 760-61
    . In this case, as in Hager, McCarthy was under arrest
    and exigent circumstances existed.
    Finally, I agree with the majority, as recognized in Coulthard v.
    Commonwealth, 
    230 S.W.3d 572
    (Ky. 2007), that the prohibition on the
    admission into evidence of a refusal to consent to a warrantless search is not
    38
    absolute. While the majority accurately relates the facts in Coulthard, I would
    extend its holding to DUI arrests/refusals, as recognized in both Hager and
    Deno, and give effect to the legislative policy as expressed in KRS 189A.105.
    I would reverse the Court of Appeals and affirm the Daviess Circuit
    Court’s judgment of conviction of McCarthy.
    Conley, J., joins.
    COUNSEL FOR APPELLANT:
    Daniel J. Cameron
    Attorney General of Kentucky
    Mark Daniel Barry
    Assistant Attorney General
    COUNSEL FOR APPELLEE:
    Kathleen Kallaher Schmidt
    Erin Hoffman Yang
    Assistant Public Advocates
    39