Request By:
Ms. Mildred Hilton, Victim Advocate
Mothers Against Drunk Driving
P.O. Box 2167
Louisville, Kentucky 40201-2167
Opinion
Opinion By: Chris Gorman, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to the Attorney General in which you have asked the following two questions:
1. Does a defendant charged with DUI, who refuses the breathalyzer test administered by the police/corrections department, have a right to another test of his choice?
2. Can a prosecutor agree to a 90 day versus a six month suspension for a breathalyzer refusal in any DUI case?
As to your first question, Kentucky's "Implied Consent Statute" is KRS 189A.103, which states, in pertinent part, as follows:
(7) The person tested shall be permitted to have a person listed in subsection (6) of this section of his own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. . . . Provided, however, the nonavailability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.
(Emphasis added). The statute clearly contemplates that the suspected driver must first submit to an alcohol test requested by the officer prior to obtaining a test from a physician of his own choosing. We believe that the phrase, "in addition to," which is used twice in the statute, requires the suspected driver to first submit to an alcohol test requested by the arresting officer before he will be permitted to have his own test. Brent and Stiller, Handling Drunk Driving Cases, state:
[S]tatutes often provide for the right to have a second test performed by a physician of the motorist's own choosing. For this right to come into play, the motorist must have consented to a test and then requested that a second independent test be performed.
Id. § 15:4, p. 249, emphasis added. We are therefore of the opinion that a person arrested for driving under the influence of intoxicants who refuses to submit to the alcohol test requested by a police officer is not allowed to have his own test administered by a physician of his own choosing.
As to your second question, KRS 189A.107 outlines the periods of suspension required for refusing to submit to a blood alcohol test, as follows:
(a) For a first refusal in a five (5) year period, six (6) months;
(b) For a second refusal within a five (5) year period, eighteen (18) months;
(c) For a third refusal within a five (5) year period, thirty six months; and
(d) For a fourth or subsequent offense within a five (5) year period, sixty (60) months.
However, KRS 189A.070 provides license revocations for those convicted of driving under the influence of intoxicants, as follows:
(a) For the first offense within a five (5) year period, ninety days;
(b) For the second offense within a five (5) year period, twelve (12) months;
(c) For the third offense within a five (5) year period, twenty-four (24) months; and
(d) For the fourth or subsequent offense within a five (5) year period, sixty (60) months.
(Emphasis added). It might appear that a person who refuses to submit to a blood alcohol test would be subjected to a stiffer license suspension (6 months) than a person who pleads guilty to the offense (90 days); however, KRS 189A.220(2) resolves this conflict as follows:
If there is a conviction prior to a judicial review of a pretrial suspension for refusal to take an alcohol concentration or substance test, then the period of revocation applicable to the conviction shall apply.
(Emphasis added). The new Kentucky drunk driving statutes require the district court to make a judicial determination, at a pretrial hearing, whether the defendant actually refused to submit to a blood alcohol test. KRS 189A.200. This procedure is unlike the prior statute (KRS 189.565(3)), where the arresting officer merely filled out a sworn affidavit attesting that the driver refused a test. Upon receipt of the affidavit, the Transportation Cabinet suspended the license. Although a suspension of six months is required by the new statute for the first refusal to submit to an alcohol test, we are of the opinion that the suspension period can be reduced to 90 days if the defendant pleads guilty to DUI before the trial court has made a determination at a pretrial hearing that the defendant refused to take the test. We are therefore of the opinion that a prosecutor may properly agree to the ninety day suspension when a defendant pleads guilty to a drunk driving charge, if the guilty plea is entered before the trial judge determines that he refused to submit to a blood alcohol test.
We trust that this opinion will be of some assistance to you.