Com. v. Howard, s. 97-SC-764-T

• Decision Date: 18 June 1998
• Docket Number: Nos. 97-SC-764-T,98-SC-06-TG,s. 97-SC-764-T
• Citation: 969 S.W.2d 700
• Parties: COMMONWEALTH of Kentucky and Commonwealth of Kentucky, Transportation Cabinet, Amicus Curiae, Appellants, v. Myren E. HOWARD, Appellee. Heard With, Gregory VAUGHN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 700

969 S.W.2d 700

COMMONWEALTH of Kentucky and Commonwealth of Kentucky, Transportation Cabinet, Amicus Curiae, Appellants, v. Myren E. HOWARD, Appellee.

Heard With, Gregory VAUGHN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 97-SC-764-TG, 98-SC-06-TG.

Supreme Court of Kentucky.

June 18, 1998.

A.B. Chandler, III, Attorney General, Janet M. Graham, Assistant Attorney General, Dana M. Todd, Assistant Attorney General, Frankfort, for appellant/appellee, Commonwealth of Kentucky.

James R. Cox, Mary R. Harville, Reed, Weitkamp, Schell, Cox & Vice, Louisville, for Amicus Curiae.

Henry E. Hayden, Owensboro, for appellee Howard.

Douglas G. Benge, Jensen & Benge, London, for appellant Vaughn.

WINTERSHEIMER, Justice.

These two consolidated cases were argued before the Court on the same day and involve the same issue. The Court, therefore, will resolve both cases in this single opinion.

Case No. 97-SC-764-TG

Howard's appeal comes before this Court on a motion to transfer from the Kentucky Court of Appeals. The Daviess Circuit Court affirmed a decision of the Daviess District Court which struck down the juvenile DUI statute, KRS 189A.010(1)(e), as a violation of the equal protection guarantees of both the federal and state constitutions. The Court of Appeals granted discretionary review but refused to transfer. On a motion for transfer, this Court granted transfer.

The issue before this Court is whether KRS 189A.010(1)(e) is constitutional.

On November 29, 1996, Howard was 18 years of age and was tested by a state trooper with an intoxilyzer and showed a 0.032 blood alcohol level. Consequently, he was charged with a violation of the statute. KRS 189A.010(1)(e) states:

A person shall not operate or be in physical control of a motor vehicle anywhere in this state ... while the alcohol concentration in his blood or breath is 0.02 or more based on the definition of the alcohol concentration in KRS 189A.005 if the person is under the age of twenty-one.

In district court, Howard challenged the constitutionality of the statute on the basis that it created a suspect class for those adults above 18 years of age, of which he was a member, and therefore violated his right to equal protection under the law. Both the district judge and the circuit judge were convinced that the statute did create a suspect class based solely on age without any other rational basis and therefore could not uphold the statute even if the interests, zero tolerance for underage drinkers it sought to protect, was indeed noble. The decision was based primarily on Praete v. Commonwealth, Ky.App., 722 S.W.2d 602 (1987) and Commonwealth v. Raines, Ky., 847 S.W.2d 724 (1993).

KRS 189A.010(1)(e) does not violate the equal protection clause of the United States Constitution or Sections 1, 2 and 3 of the Kentucky Constitution that reflect the equal protection provisions of the Fourteenth Amendment to the United States Constitution. Commonwealth v. Smith, Ky., 875 S.W.2d 873 (1994). In addition, Section 59 of the Kentucky Constitution provides equal protection guarantees in the form of a prohibition of special legislation which is also not violated.

KRS 189A.010(1)(e) is sometimes known as the "Juvenile DUI Statute" or the "Zero Tolerance Law." It was enacted in 1996 and makes it a crime for anyone under the age of twenty-one to drive with a blood alcohol content of 0.02 percent or higher. The Zero Tolerance Statute is one of several provisions which was enacted in 1996 by the General Assembly. In addition, the General Assembly provided a graduated driver's licensing system in which a novice driver begins driving with a learner's permit at age sixteen and progresses to driving with certain restrictions. Full licensing, without restriction, is obtained at age eighteen. See KRS 186.440 et seq. Approximately 43 states, as well as the District of Columbia, have zero tolerance laws for drivers under the age of twenty-one. See National Center for Statistics and Analysis, National Highway Transportation Safety Administration, Traffic Safety Facts-Young Drivers (1996). The necessity for establishing a zero tolerance statute and the graduated driver's licensing program comes at least in part from the Alcohol Impaired Driving Countermeasures Act, 23 U.S.C.A. 410 (1991), which provides federal highway grants to those states that establish measures to combat drunk driving. See 23 U.S.C. 410(d)(7).

It must be understood that driving an automobile is not a fundamental constitutional right, but a legitimately regulated privilege. Cf. Division of Driver's Licensing v. Bergmann, Ky., 740 S.W.2d 948 (1987). Thus, the review of this matter under a rational basis analysis is appropriate because the legislation in question does not infringe on a fundamental right, nor does it impact on a suspect class negatively. Probus v. Sirles, Ky.App., 569 S.W.2d 707 (1978), rejects the idea that statutes relating to motor vehicles necessarily implement the fundamental right to travel. In Sirles, supra, an uninsured automobile owner's suit was dismissed on the basis that he had not opted out of the provisions of the MVRA.

The United States Supreme Court used a rational basis analysis in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976), in reviewing the constitutionality of a mandatory retirement age statute. The court stated that an equal protection analysis requires strict scrutiny of legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class. Unless a classification requires some form of heightened review because it jeopardizes the exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the equal protection clause of the federal constitution requires only that the classification rationally further a legitimate state interest. Murgia, supra.

Here, the statute does not violate the Fourteenth Amendment to the United States Constitution because it is rationally related to a legitimate state purpose. Nordlinger v. Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Under the rational basis test, a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993), citing F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

Automobile drivers under the age of twenty-one do not constitute a suspect class. The U.S. Supreme Court defines a suspect class as one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); See also Heller, supra. The U .S. Supreme Court cited examples of suspect classes such as alienage, ancestry and race. The class of automobile drivers under twenty-one does not qualify under such a category just as the class of drivers under eighteen did not constitute a suspect class in Praete, supra. See also Transportation Cabinet v. Feige, Ky.App., 889 S.W.2d 52 (1994), which held that driver's license applicants with revoked out-of-state licenses because of DUI convictions are not a suspect class.

The statute does not operate to the disadvantage of a suspect class, and no fundamental right is unduly prejudiced. Consequently, a rational basis standard and not a strict scrutiny test must be used to assess the constitutionality of the statute. The statute furthers a legitimate state purpose and is therefore constitutional.

The U.S. Supreme Court used the rational basis test in a review of a challenge to the equal protection aspect of the involuntary commitment procedures of Kentucky in Heller, supra. In part, the Supreme Court noted that "rational basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness or logic of the legislative choices." Quoting Beach Communications, supra. In the appellate review of a statute involving classification, the law must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Cf. Heller.

Moreover, the state does not have the burden of establishing that a statute is constitutional. Rather the one challenging the legislation has that burden. The state has no obligation to produce evidence to sustain the rationality of statutory classifications. Heller. A statute is presumed constitutional. Heller, citing Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).

Legislative classification is not subject to a court-room fact-finding process and "may be based on rational speculation unsupported by evidence or empirical data." Heller, quoting Beach Communications. Merely because the statute may result in some practical inequity does not cause it to fail the rational basis test for review.

So long as the statute's generalization is rationally related to the achievement of a legitimate purpose; the statute is constitutional. Cf. Smith, supra. A state does not violate the equal protection clause merely because the classifications made by the statutes are imperfect. Stephens v. State Farm Mutual Auto Insurance Co., Ky., 894 S.W.2d 624 (1995).

Evidence of the rational classification can readily be found in the fact that the General Assembly, in KRS 2.015, prohibited the purchase of alcohol until one reaches the age of twenty-one. KRS 244 .085(3) also prohibits any person under 21 years of age from purchasing or possessing alcoholic beverages.

It...