Com. Transp. Cabinet Dept. of Vehicle Regulation v. Cornell

• Decision Date: 21 September 1990
• Docket Number: No. 89-CA-2263-MR,89-CA-2263-MR
• Citation: 796 S.W.2d 591
• Parties: COMMONWEALTH of Kentucky TRANSPORTATION CABINET DEPARTMENT OF VEHICLE REGULATION, Appellant, v. Duane F. CORNELL, Appellee.
• Court: Kentucky Court of Appeals

Page 591

796 S.W.2d 591

COMMONWEALTH of Kentucky TRANSPORTATION CABINET DEPARTMENT OF VEHICLE REGULATION, Appellant, v. Duane F. CORNELL, Appellee.

No. 89-CA-2263-MR.

Court of Appeals of Kentucky.

Sept. 21, 1990.

Patricia K. Foley, Frankfort, for appellant.

John W. Wooldridge, Shepherdsville, for appellee.

Before HOWERTON, C.J., and HOWARD and MILLER, JJ.

HOWARD, Judge.

The appellant appeals from the Bullitt Circuit Court's decision overturning appellant's decision to suspend the appellee's driver's license pursuant to KRS 186.565 for refusing to submit to a breathalyzer test.

On December 18, 1988, St. Matthews' police officer Thomas Gilsdorf observed the appellee driving erratically and pulled him over for suspicion of driving while under the influence of intoxicants. He placed appellee under arrest and charged him with driving under the influence. After arresting appellee, Gilsdorf transported appellee to the Jefferson County Corrections Department where he was turned over to the custody of the corrections department. Gilsdorf apparently did not warn appellee of his rights and conducted no chemical tests upon appellee.

Officer Harvey Hunt at the Corrections Cabinet testified that he met with the appellee after he arrived at the facility. According to Hunt, the appellee arrived at the department at 4:10 a.m., and he first saw appellee at 4:15 a.m. He stated that he told the appellee of his Miranda rights. At some point thereafter, Hunt asked the appellee to submit to a chemical breathalyzer test which, according to Hunt, the appellee refused to do. Hunt testified that he then waited twenty minutes while observing the appellee, and once again asked the appellee to take the test. After the appellee refused again, Hunt stated that he explained the KRS 186.565 implied consent law and its ramifications to the appellee. The appellee apparently told Hunt that he understood the law. Hunt once again asked the appellee to take the test and he refused. Hunt then took the appellee to another part of the facility.

The appellee testified that after being informed of his Miranda rights, he immediately invoked his right to speak with counsel. He stated that he was not allowed to speak with an attorney until later, and after speaking with a friend, Judge Nicholson, he immediately agreed to take the test, but was refused. Judge Nicholson testified that he received this call and later received another call from the appellee informing him that Officer Hunt would not administer the test. Nicholson went to the corrections department, but could not convince Hunt to administer the test.

Subsequent to these events, the appellant received affidavits from Officer Gilsdorf and Officer Hunt outlining the events of December 18 and stating the appellee's refusal to submit to the test. A hearing was held on the matter of suspending the appellee's driver's license on June 8, 1989. The appellee and the officers were each allowed to present their respective sides of the case. The hearing officer issued a report to the acting commissioner of the Transportation Cabinet and, on June 18, 1989, the commissioner entered a final order suspending appellee's driver's license for six months pursuant to KRS 186.565.

The appellee filed suit in the Bullitt Circuit Court seeking relief from this final order. On October 12, 1989, the Bullitt Circuit Court entered an order in favor of the appellee and overturned the Transportation Cabinet's order. It ruled that the appellee's constitutional right to consult his attorney prior to refusing or accepting the test was violated, and that the order also had to be reversed due to the appellant's failure to file the transcript of the earlier hearing and the Cabinet's final order with the circuit court. The Bullitt Circuit Court also ruled that the appellant's final order was arbitrary and capricious. This appeal has followed.

Appellant's appeal contains three primary arguments. Appellant first contends that the circuit court erred when it ruled that the appellee was entitled to the benefit of counsel prior to submitting to the breathalyzer test required under KRS 186.565. After reviewing the relevant case law, we agree with the appellant's argument.

It has long been held in the Commonwealth of Kentucky that operating a motor vehicle on a public road is not a natural or unrestricted right but is a privilege granted by the state and is subject to reasonable regulation under the state's police power. A driver in using public roadways is subject to the applicable statutory limitations and conditions regulating traffic. Commonwealth v. Mitchell, Ky., 355 S.W.2d 686, 688 (1962).

It further has generally been held that requiring an accused to submit to a blood or breathalyzer test does not violate the accused's privilege against self-incrimination or invoke his right to counsel before interrogation. The United States Supreme Court has held that such tests do not involve testimonial compulsion or enforced communication. The accused's participation, except as a donor, is irrelevant to the results of the tests. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Compelling a suspect to submit to a withdrawal of blood for analysis for alcohol content and admitting the results of this analysis into evidence does not fall within the compulsion of the accused to give evidence having testimonial significance. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Kentucky's highest court has followed the above holdings of the United States Supreme Court. The former Court of Appeals concurred in the reasoning of the United States Supreme Court in ruling that a suspect's Fifth Amendment rights are not involved in the taking of breath samples for chemical analysis. Newman v. Stinson, Ky., 489 S.W.2d 826, 829 (1972). An accused has no right to have counsel present at the time a breathalyzer test is administered. Newman v. Hacker, Ky., 530 S.W.2d 376 (1975).

This Court addressed the issue raised by the appellant in the instant case in Elkin v. Commonwealth of Kentucky, Department of Transportation, Bureau of Vehicle Regulation, Ky.App., 646 S.W.2d 45 (1982). This Court clearly followed the Hacker and Stinson opinions. This Court ruled that there is no distinction between the right to consult an attorney before submitting to a test and the right to have an attorney present during the test. Elkin, supra, at 47. Thus, we find these cases dispositive here. We have reviewed the cases from other jurisdictions cited by appellee, but we find the Kentucky cases are controlling. The appellee had no right to consult with his attorney or to have his attorney present during the taking of the test so the Miranda rights were not applicable in this case. The evidence indicates that the appellee was apprised of the implied consent law.

Appellant in this case also argues that the Bullitt Circuit Court erred when it found that the final order of the Transportation Cabinet was arbitrary and capricious. We agree that the circuit court erred in this regard.

Judicial review of an administrative agency's action is concerned with the question of arbitrariness. American Beauty Homes Corporation v. Louisville and Jefferson County Planning and Zoning Commission, Ky.App., 379 S.W.2d 450, 456 (1964). The Constitution prohibits the exercise of arbitrary power by an administrative agency. In determining whether an agency's action was arbitrary, the reviewing court should look at three primary factors. The court should first determine whether the agency acted within the constraints of its statutory powers or whether it exceeded them. American Beauty Homes Corporation, supra. Second, the court should examine the agency's procedures to see if a party to be affected by an administrative order was afforded his procedural due process. The individual must have been given an opportunity to be heard. Finally, the reviewing court must determine whether the agency's action is supported by substantial evidence. American Beauty Homes Corporation, supra. If any of these three tests are failed, the reviewing court may find that the agency's action was arbitrary.

On factual issues however, a circuit court in reviewing the agency's decision is confined to the record of proceedings held before the administrative body and is bound by the administrative decision if it is supported by substantial evidence. Board of Education of Ashland School District v. Chattin, Ky., 376 S.W.2d 693, 697 (1964) (overruled on other grounds in Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967)); Taylor v. Coblin, Ky., 461 S.W.2d 78 (1970). It must be noted that the trier of facts in an administrative 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 driver's...