Request By:
Hon. Mark Fitzgerald
Attorney-at-Law
East Pike Street
P.O. Box 313
Cynthiana, Kentucky 41031
Opinion
Opinion By: Steven L. Beshear, Attorney General; Reid C. James, Assistant Attorney General
This is in response to your request for an opinion regarding HB 500 enacted by the 1980 session of the Kentucky General Assembly. Specifically you refer to subsection 7 of this legislation which added a new provision to KRS 186.565. This amendment permits an individual who has had no previous conviction of driving under the influence of intoxicating beverages, and who has refused to submit to a breathalyzer, to petition the district court to permit him to enter a driver's education program.
This amendment to KRS 186.565 specifically provides,
"Any person who has had no previous conviction for violation of KRS 189.520 and who has refused to submit to a chemical test of his blood, breath, urine, or saliva may apply to a district court of competent jurisdiction for permission to enter a driver's education program as provided pursuant to KRS 186.560. If he is permitted by the court to enter the program he shall be subject to the same terms and conditions as any other person entering the program. The department shall suspend the license for six (6) months of any person participating in such program if he fails to satisfactorily complete such driver's education program. "
You submit that subsection 7 of HB 500 was designed to permit a district court to refer qualified individuals to a driver's education program without requiring that they be convicted of driving under the influence. It is noted in your request, however, that the Department of Transportation intends to interpret the words ". . . he shall be subject to the same terms and conditions as any other person entering the program," as they appear in subsection 7, to mean the individual must have a D.U.I. conviction. You seek the correct interpretation of this new provision.
It is our opinion that a qualified individual -- one who has never previously been convicted of driving under the influence and who has refused to take a breathalyzer upon request -- need not necessarily have a D.U.I. conviction in order to petition the district court to attend a driver's education program.
By statute an individual convicted of D.U.I. for the first time may upon written recommendation of the district court retain his license if he attends and completes the driver's education program established by the Department of Transportation. KRS 186.560(4). A person may be convicted of D.U.I. based upon the presumptions of alcoholic blood content established by KRS 189.520(4), or upon any other competent evidence introduced by the arresting officer and addressing the question of whether the person was driving under the influence of intoxicants. KRS 189.520(5). Thus one may be convicted of D.U.I. whether breathalyzer evidence is obtained and introduced or not. In other words if an individual refused to take a breathalyzer test he could still be convicted of D.U.I. based upon other evidence, such as appearance when stopped, ability to physically control himself and his automobile, etc.
A distinction is perceived between administrative and criminal action. The actual trial and conviction of an individual for operating a motor vehicle under the influence of intoxicants is in the nature of a criminal action. KRS 189.520. However KRS 186.560, appearing in a chapter dealing with the licensing of vehicles and their operators, provides for a mandatory administrative act of revoking a violator's driver's license upon his conviction of D.U.I. This is subject again, of course, to the court's ability to recommend retention of the driver's license upon the violator's successful completion of the driver's education program. KRS 186.560(4).
KRS 186.565, the subject of the amendment at issue, provides for an administrative procedure for revoking the license of an individual who refuses to submit to a breathalyzer exam regardless of the determination of the trial court, or even whether the person comes to trial. Under this statute the mere refusal to take the test suffices as a reason for revoking the license. Certainly the intent of this legislation, and all legislation dealing with driving while intoxicated, is to maintain the safety of the Commonwealth's highways. It is a clearly valid exercise of the state's police powers to require submission to a breathalyzer test.
Considering the purpose of such legislation it should be of no significant concern to the Department of Transportation whether an individual who refuses to submit to a breathalyzer test is subsequently convicted of D.U.I. or not. The intent of the new subsection 7 was to permit the individual refusing to take the test to petition the court to allow him to attend the driver's education program. By doing so the purpose of the program would be fulfilled -- hopefully a safer driver would return to the highways.
The language of subsection 7 to the effect that "he sahll be subject to the same terms and conditions as any other person entering the program," should be interpreted as meaning the individual is to be treated and considered vis a vis the program one who was driving under the influence even though such a conviction does not appear of record. If he fails to successfully complete the program his license is automatically suspended just as one so failing who was convicted of D.U.I. based upon competent evidence at trial.
The statutes of this state are to be liberally construed with a view toward promoting their purpose and carrying out the intent of the legislature. KRS 446.080. KRS 186.565, as it existed prior to the amendment, providing for the administrative revocation of one's license who refuses to submit to a breathalyzer does not per se provide for the entry of a D.U.I. conviction. Neither does the amendment of this statute require such an interpretation. Subsection 7 simply permits the district court to allow one refusing to take a breathalyzer the same right to attend driver's education school that one convicted of D.U.I. would have.