Com., Dept. of Public Safety v. Cheek

Citation451 S.W.2d 394
PartiesCOMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Warren Filmore CHEEK, Appellee.
Decision Date20 February 1970
CourtUnited States State Supreme Court (Kentucky)

Mary Jo Arterberry, Department of Public Safety, Frankfort, for appellant.

Weldon Shouse, Lexington, for appellee.

WADDILL, Commissioner.

The question presented on this appeal is whether the Commissioner of Public Safety revoked appellee's driver's license in accordance with the provisions of KRS 186.565. The revocation of the license was based on the Commissioner's finding that appellee had refused to submit to a blood test when he was requested to take such a test following his arrest for driving while intoxicated. On appeal, the Spencer Circuit Court found that there was not sufficient substantial evidence to support the Commissioner's finding and the order revoking appellee's driver's license was set aside.

Appellee was arrested by the town marshal of Taylorsville on June 30, 1968 for operating a motor vehicle while under the influence of intoxicating beverages. Appellee entered a plea of guilty to an amended charge of reckless driving. Later the town marshal filed an affidavit with the Department of Public Safety in which he stated that appellee had refused to submit to a blood test although affiant had placed him under arrest and had requested him to submit to the test.

Upon receipt of this affidavit the Department suspended appellee's driver's license for a period of six months. KRS 186.565(3). Appellee timely requested an administrative hearing and challenged the legality of the revocation of his license. The main issues raised at the administrative hearing were whether the town marshal had properly requested appellee to take a chemical test to determine the alcoholic content of his blood, and whether appellee had refused.

The town marshall testified in pertinent part as follows:

'* * * on the 30th of August I observed this 1967 or 1968, blue, pickup, truck coming down Kentucky highway 55 toward Taylorsville. Subject had a wagon in tow behind the vehicle. He was operating his vehicle on the lefthand side of the road, completely out of control. * * *. I advised him that he was under arrest, and I requested that he take the blood alcohol test. He said, 'No'. Then's when I put him in the back seat of the police car and proceeded to the county jail.

'MISS ARTERBERRY: (Counsel for the Department of Public Safety). Did he give you any reason for refusing?

OFFICER LESLIE: No mam.

'MISS ARTERBERRY: Do you believe he understood what you were asking him to do?

'OFFICER LESLIE: Well, it is a rather new law. I'm not sure whether, you know, most people understand it or not. I didn't explain it to him, if that's what you mean.

'MISS ARTERBERRY: But he--do you believe he understood what a blood alcohol test was?

'OFFICER LESLIE: I believe--I don't think so.

'EXAMINER: Was he coherent enough that he would understand if he had knowledge of this? Was he--this is what--

'OFFICER LESLIE: I believe so sir.

'EXAMINER: He would have known if--

'OFFICER LESLIE: I believe he would sir. In my opinion, he was very highly intoxicated; but on different people, you know, you can't really tell.

'MISS ARTERBERRY: Is there a place available in Taylorsville where the test could have been administered?

'OFFICER LESLIE: Skaggs Clinic. Yes, mam, there are two doctors--Dr. William Skaggs and his father operate the thing.

'MISS ARTERBERRY: And did you--I--from my own thoughts, did you say that Mr. Cheek didn't give any reason for refusing?

'OFFICER LESLIE: No, mam. * * *.'

Appellee claimed at the hearing that he had been willing to submit to the blood test and that the arresting officer had misunderstood his answer. We quote from some of his recorded testimony:

'* * *.

'ATTORNEY SHOUSE: (Attorney for appellee Cheek). And did he (arresting officer) have any discussion with you whether or not you were willing to take a blood alcohol test?

'CHEEK: He said, 'You are supposed to take a blood alcohol test.' He said, 'Do you mind taking it?'

'ATTORNEY SHOUSE: What did you say to him?

'CHEEK: No.

'ATTORNEY SHOUSE: Alright, after--

'EXAMINER: You're answering--you say no that you don't want to...

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6 cases
  • Craig v. Com., Dept. of Public Safety
    • United States
    • United States State Supreme Court — District of Kentucky
    • September 24, 1971
    ...this case from Powers and Timberlake and that here there was substantial compliance with KRS 186.565(3). Cf. Com., Dept. of Public Safety v. Cheek, Ky., 451 S.W.2d 394 (1970). Craig demands that we declare KRS 186.565 to be unconstitutional as the procedures specified therein violate the du......
  • Com. Transp. Cabinet Dept. of Vehicle Regulation v. Cornell, 89-CA-2263-MR
    • United States
    • Kentucky Court of Appeals
    • September 21, 1990
    ...agency may consider all of the evidence and choose the evidence that he believes. See Commonwealth of Kentucky, Department of Public Safety v. Cheek, Ky., 451 S.W.2d 394 (1970). KRS 186.565(5), in establishing the procedure for an appeal of the Transportation Cabinet's revocation of a drive......
  • Cummins v. Lentz
    • United States
    • Kentucky Court of Appeals
    • June 7, 1991
    ...the effect of refusing the test was that she could not remember. We, as did the Court in Commonwealth, Department of Public Safety v. Cheek, Ky., 451 S.W.2d 394, 396 (1970), conclude Under KRS 186.565(5) the finding and decision of the Commissioner become final unless on appeal to the circu......
  • Newman v. Smith
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 23, 1972
    ...the commissioner's ruling is arbitrary or capricious, or is not supported by substantial evidence. Commonwealth, Dept. of Public Safety v. Cheek, Ky., 451 S.W.2d 394 (1970). The issue is not whether Smith was guilty beyond a reasonable doubt of the offense of driving a motor vehicle while u......
  • Request a trial to view additional results

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