Defendant had a head injury and couldn’t remember the accident. Still, she was lucid when the officer talked to her, and she objectively consented on the objective facts. Her subjective belief wasn’t important. The trial court clearly erred in finding lack of consent. Commonwealth v. Brown, 2018 Ky. App. LEXIS 143 (May 18, 2018):
In light of the evidence, we find fault in the trial court’s finding as to express consent. Examining Adams’ conduct objectively, rather than from Brown’s subjective position, reveals no error by Adams. He waited until after medical personnel cleared Brown to speak with her. He read the implied consent warning to her, and she indicated her understanding of the warning three times. He then asked her permission for a blood draw and received an answer indicating agreement. The Commonwealth offered sufficient evidence to meet its burden of proving voluntariness by a preponderance of the evidence.