Request By:
Honorable Milo D. Bryant
Secretary, Transportation Cabinet
10th Floor, State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General
A question has arisen over the interpretation of certain statutes relating to the Transportation Cabinet's responsibilities when a driver refuses to take a breathalyzer test.
KRS 189.520 states:
"(1) No person under the influence of intoxicating beverages or any substance which may impair one's driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state.
"(2) No peace officer or state police officer shall fail to enforce rigidly this section and KRS 189A.010 through 189A.090.
"(3) In any criminal prosecution for a violation of KRS 189A.010 or subsection (1) of this section, wherein the defendant is charged with having operated a vehicle while under the influence of intoxicating beverages, the amount of alcohol in the defendant's blood as determined at the time of making an analysis of his blood, urine, breath or other bodily substance, shall give rise to the following presumptions:
"(a) If there was 0.05 percent (5/100%) or less by weight of alcohol in such blood, it shall be presumed that the defendant was not under the influence of intoxicating beverages;
"(b) If there was more than 0.05 percent (5/100%), but less than 0.10 percent by weight of alcohol in such blood, such fact shall not constitute a presumption that the defendant either was or was not under the influence of intoxicating beverages, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.
"(c) If there was 0.10 percent (1/10%) or more by weight of alcohol in such blood, it shall be presumed that the defendant was under the influence of intoxicating beverages.
"(4) The provisions of subsection (3) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the defendant was under the influence of intoxicating beverages.
"(5) No person may be compelled to submit to any test specified in subsection (3) of this section, but his refusal to submit to such test shall result in revocation of his license as provided in KRS 186.565(3).
"(6) Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a test under this section of KRS 186.565.
"(7) The person tested shall be permitted to have a duly licensed physician of his own choosing administer a test in addition to the one administered at the direction of the police officer." (Emphasis added.)
Subsection (1) of this statute creates a classification of drivers of vehicles which are not motor vehicles. See, Acts 1984, Chapter 165, § 18 [previous subsection (2) was deleted, referring to driver of motor vehicles] .
The other classification is obviously drivers of motor vehicles. KRS 186.565(1) states, in part:
"Any person who operates a motor vehicle in this state is deemed to have given his consent to a test of his blood, breath, urine or saliva for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages or other substances which may impair one's driving ability." (Emphasis added.)
Pursuant to KRS 186.565(3), if a person under arrest refuses upon the request of a law enforcement officer to submit to a test as provided in KRS 186.565(1) and refuses a second time after being warned by the officer of the effect of such refusal, then the Transportation Cabinet "shall immediately serve notice upon said person . . . to appear before the secretary or his duly authorized agent and show cause why his license to operate a motor vehicle, or if said person is a nonresident his privilege to operate a motor vehicle within this state should not be revoked. . ."
The Transportation Cabinet is then required to conduct a show cause hearing pursuant to KRS 186.565(4). Following the hearing, the Secretary of Transportation shall order either: "That the person's license to operate a motor vehicle, or, if the person is a nonresident, his privilege to operate a motor vehicle within this state be revoked for a period of not more than six (6) months or if the person is a resident without such license that there should be a denial of issuance of a license for a period of not more than six (6) months; or that no action be taken regarding said person's privilege to operate a motor vehicle. " KRS 186.565(4).
For drivers of vehicles other than motor vehicles, KRS 186.565(7) applies. If such a driver has had no previous convictions under KRS 189.520, he may apply to a district court of competent jurisdiction for permission to enter a driver's education program. If he fails to satisfactorily complete the program, his license shall be suspended for six months.
As applies to drivers of motor vehicles, no similar exemption from the revocation provisions of KRS 186.565 exists. The Cabinet must follow the requirements of that statute vis-a-vis the show cause hearing and a final determination either revoking for no more than six months or taking no action.
This procedure was followed and upheld in
Elkin v. Commonwealth, Dept. of Transportation, Bureau of Vehicle Regulation, Ky. App., 646 S.W.2d 45 (1982). No question was raised in that case as to the refusing driver's ability to avoid revocation by enrolling in a driver's education program.
In our opinion, the language of KRS 186.565 as it pertains to drivers of motor vehicles is mandatory. The Cabinet's only course of action is to conduct a show cause hearing and make a finding relative to revocation. The refusing driver has no statutory mechanism whereby he may avoid this hearing, such as enrollment in a driver's education program upon application to a district court. The district court would have no jurisdiction to entertain such an application. The district court's jurisdiction is set by statute, as it is a court of limited jurisdiction. See, KRS 24A.010 and KRS 24A.110. Any enlargement of the district court's jurisdiction other than by statute is invalid. OAG 83-251.
In conclusion, we reiterate our opinion: in the case where a driver of a motor vehicle who is arrested and properly requested by a law enforcement officer refuses to submit to a test to determine the alcohol content of his blood, then the Transportation Cabinet must conduct a show cause hearing and determine whether or not such driver's license shall be revoked.