Com., Dept. of Public Safety v. Carpenter

• Decision Date: 14 May 1971
• Citation: 467 S.W.2d 338
• Parties: COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, W. O. Newman, Commissioner, Appellant, v. Tommy CARPENTER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 338

467 S.W.2d 338

COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, W. O Newman, Commissioner, Appellant, v. Tommy CARPENTER, Appellee.

Court of Appeals of Kentucky.

May 14, 1971.

Mary Jo Arterberry, Dept. of Public Safety, Division of Driver Licensing, Frankfort, for appellant.

Carl R. Clontz, Allen, Clontz & Cox, Mount Vernon, for appellee.

VANCE, Commissioner.

The Department of Public Safety revoked the driver's license of Tommy Carpenter for his alleged refusal to submit to a blood-alcohol test upon request of a state police officer. The order of revocation was set aside by a judgment of the Rockcastle Circuit Court and the department has appealed. We affirm the judgment.

The facts of this case are not in dispute. A state police officer arrested Tommy Carpenter for the offense of operating a motor vehicle while under the influence of intoxicating beverages. Mr. Carpenter requested a blood test and the officer took him to a hospital for the test. The hospital had a printed form which was described by the officer as a consent form. The officer filled out the form and asked Carpenter to sign it. Carpenter refused to sign and the officer then took him to jail.

On cross-examination at the hearing, the officer testified as follows:

'ATTY. CLONTZ: Of course, you never asked Tommy Carpenter or requested or directed him to take the blood test?

'GODBY: Well, I didn't feel it was necessary * * *.

'ATTY. CLONTZ: I--I--I-- know * * *

'GODBY: He had already asked me.

'ATTY. CLONTZ: But, you didn't did you?

'GODBY: No.'

Carpenter was acquitted at his trial on the charge of operating a motor vehicle while under the influence of intoxicants but the department revoked his operator's license pursuant to KRS 186.565(3) which provides:

'(3) If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency as provided in subsection (1) of this section, none shall be given, but the Department of Public Safety, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages and that the person refused to submit to the test upon the request of the law enforcement officer, shall revoke the license or permit of the person refusing to take the test for a period of not more than six months; * * *.' ¹

In order for a refusal to take a chemical test to result in revocation of the driver's license, the arrested person must first be requested by a law enforcement officer to submit to a chemical test. Timberlake v. Commonwealth, Department of Public Safety, Ky., 464 S.W.2d 283 (1971); Commonwealth, Department of Public Safety v. Powers, Ky., 453 S.W.2d 260 (1970). The request must be something more than an invitation. Timberlake, supra. This court stated in Commonwealth, Department of Public Safety v. Powers, Ky., 453 S.W.2d at 262 (1970),...