Request By:
Hon. Robert Hines, Jr.
Assistant County Attorney
McCracken County
Paducah, Kentucky 42001
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to this office in which you request an Opinion of the Attorney General with regard to whether the driver of a motor vehicle may be charged with violating KRS 189A.090 if he fails to have his driver's license reinstated after the actual period of suspension imposed by the Transportation Cabinet for a conviction of violating KRS 189A.010 has elapsed. In your letter, you note that a driver whose license has been revoked or suspended for driving under the influence bears the responsibility of having his driver's license reinstated by the Department of Transportation.
We are of the opinion that a person may be charged with a violation of KRS 189A.090 only if he operates a motor vehicle while his driver's license is revoked or suspended for violation of KRS 189A.010. If the driver fails to have his driver's license reinstated after the period of suspension for driving under the influence has elapsed, he may still be charged with operating a vehicle without a valid driver's license, but this charge would fall under KRS 186.620.
In reaching our opinion, we note that KRS 189A.070 provides for mandatory suspension of a driver's license for drivers who are convicted of driving under the influence of intoxicants, contrary to KRS 189A.010. The suspension periods are outlined in KRS 189A.070(1) which states, in pertinent part, as follows:
(1) Unless the person is under eighteen (18) years of age, in addition to the penalties specified in KRS 189A.010, a person convicted of violation of KRS 189A.010 shall have his license to operate a motor vehicle or motorcycle revoked as follows:
(a) For the first offense, six (6) months, unless the person enrolls in the driver improvement program specified by the transportation cabinet pursuant to KRS 186.560 or (at the option of the defendant) a licensed comprehensive care center education program, in which case the suspension shall be for thirty (30) days. If the person fails to successfully complete the driver improvement program or (at the option of the defendant) a licensed comprehensive care center education program, or alcohol or substance abuse education or treatment program specified in subsection (1) of KRS 189A.040, then the court shall order the license suspended for six (6) months;
(b) For the second offense, twelve (12) months;
(c) For the third or subsequent offense, twenty-four (24) months. . . .
We also note that the Transportation Cabinet is empowered to enhance the period of suspension in the case of habitual violators, under KRS 186.642(2) and 186.646(1).
The wording of KRS 189A.010 states, in pertinent part, "(1) No person shall operate a motor vehicle while his license is revoked or suspended for violation of KRS 189A.010. . . ." (Emphasis added.) We believe that KRS 189A.090 requires that a determination be made as to why the driver's license was revoked or suspended at the moment of the offense. The driver may be charged under KRS 189A.090 if he drives a motor vehicle while his license is revoked or suspended for violating KRS 189A.010, but when the period of license suspension expires, the driver is normally entitled to have his license reinstated. If the driver fails to have his license reinstated, the suspension continues to be in effect, but the reason for the suspension is really his failure to seek reinstatement, not due to a conviction for driving under the influence of intoxicants. In this case, the driver should be charged with violating KRS 186.620.
We are therefore of the opinion that a person may be charged with a violation of KRS 189A.090 only if he operates a motor vehicle while his driver's license is revoked or suspended for violation of KRS 189A.010. If the driver fails to have his driver's license reinstated after the period of suspension for driving under the influence has elapsed, he should be charged with operating a vehicle without a valid driver's license, contrary to KRS 186.620.