Craig v. Com., Dept. of Public Safety

• Citation: 471 S.W.2d 11
• Parties: Wesley Thomas CRAIG, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, William O. Newman, Commissioner, Appellee.
• Decision Date: 24 September 1971
• Court: United States State Supreme Court (Kentucky)

Page 11

471 S.W.2d 11

Wesley Thomas CRAIG, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY William O. Newman, Commissioner, Appellee.

Court of Appeals of Kentucky.

Sept. 24, 1971.

Cabell D. Francis, Ben K. Wilmot, Stanford, for appellant.

John B. Breckinridge, Atty. Gen., Mary Jo Arterberry, Midway, for appellee.

STEINFELD, Judge.

Kentucky State Police Officers lifted appellant, Craig, out of a motor vehicle parked on a highway. He appeared to be unconscious but he promptly revived. When the officers smelled the presence of alcoholic beverages and observed his demeanor they placed him under arrest, then according to appellant invited him to take the chemical test authorized by KRS 186.565. By obtaining a license to operate a motor vehicle on the highways of this state Craig had impliedly consented to take this test but he declined. ¹ On trial he was acquitted of the charge of operating a motor vehicle while under the influence of intoxicants. ² Later, pursuant to statutory procedure he was notified that his license to operate a motor vehicle was being revoked for a period of six months. He sought to prevent the revocation before the Department of Public Safety but being unsuccessful he appealed to the circuit court which upheld the department. He appeals--we affirm .

Craig claims that the officers failed to make the type of request required by KRS 186.565(3) which in part reads: '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 * * *' the agency shall revoke the license for the periods specified in the statute.

Officer Kenneth Keith testified:

'He was asked if he would like to have a blood-alcohol test and he declined, stating that he didn't want it himself, but to give it to his buddy. He was sick. And he was asked three different times, the best I remember, during the course of his arrest and on the way to the jail, if he would like to have a blood-alcohol test and it was also explained to him that if he refused the blood-alcohol test, that his license would be suspended.'

Keith also said Craig '* * * was asked if he requested a blood-alcohol test * * *' and '* * * if he wanted the blood test * * *'.

Officer James Gay said: '* * * I asked Mr. Craig again if he desired to take the B--A test * * *' and Gay warned Craig that he would lose his license if he did not take the test.

In Com., Dept. of Public Safety v. Powers, Ky., 453 S.W.2d 260 (1970), and Timberlake v. Com., Dept. of Public Safety, Ky., 464 S.W .2d 283 (1971), we held that the requests did not comply with KRS 186.565(3). We said in Timberlake '* * * that there was no positive, unequivocal 'request' within the meaning of the * * *' statute. That type of request is a prerequisite to subsequent revocation of a license. The Commonwealth argues that because the officers told Craig he would lose his license if he did not take the test this case is unlike Powers and Timberlake.

It should be noted Officer Keith testified that on three different occasions he asked Craig 'if he would like to have a blood-alcohol test', however, both officers warned Craig that failure to take the test would result in his license being suspended. It therefore appears to us that the warnings distinguish 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 due process and equal protection clauses of the United States and the Kentucky Constitutions. ³ That statute requires the officer to file with the Department of Public Safety an affidavit that he had reasonable grounds to believe that the arrested person had been operating a motor vehicle while under the influence of intoxicating beverage and that the request for the chemical test had been made and refused. The department then notifies the licensee that his license has been revoked for a period of not less than six months. The licensee is required within five days to surrender his license to the department or suffer severe penalties. He may within ten days after receiving the notice request a hearing before the department. KRS 186.565(4). The commissioner must conduct a hearing within not more than twenty days and reach a decision within ten days of the completion of the hearing. The scope of the hearing covers the issues of whether the officer had reasonable grounds to believe that the licensee was the operator or in control of the vehicle while intoxicated, if he was arrested, if the officer requested the test and if it was refused.

Craig argues that inasmuch as the procedure does not require a due process hearing before the license is required to be surrendered the statute is unconstitutional. He cites Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), ⁴ which held invalid a procedure authorizing garnishment of an employee's wages. Next he cites Pack v. Dietz, Ky., 455 S.W.2d 575 (1970), and Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). ⁵ The latter two cases declared the right to a hearing prior to discontinuance of payment of welfare subsistence money. He also relies on Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189 (1954), in which we ruled that a statute allowing the Kentucky Alcoholic Beverage Control Board to padlock licensed premises amounted to denial of due process. Several cases from foreign jurisdictions are cited but it would unreasonably lengthen this opinion to discuss them.

The department responds that the orderly and rapid procedure provided by the statute satisfies the requirements of due process. It demonstrates that the shortest time one can be deprived of his license prior to determination is six days and the longest time forty-two days. Of course, should the licensee be unsuccessful and exercise his right of appeal to the circuit court there may be substantial delays. It notes that in Sturgill v. Beard, Ky., 303 S.W.2d 908 (1957) ⁶ we said:

'It is now too late to contend that a citizen of this Commonwealth is born with a natural and irrevocable 'right' to operate a motor vehicle on our public roads, because it is now a privilege granted by a license of the state, subject to reasonable regulations by the state in the exercise of its police powers. (citing cases and texts). Hence, when the conditions imposed by the license are violated by the licensee, the suspension of the privilege to operate a vehicle is not a denial of 'due process of law'. (citing cases).'

These principles were reaffirmed in Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962).

The department argues that Craig had no 'vested property right' in his driver's license. After this case was tried Bell v. Burson, Director, Georgia Department of Public Safety, 402 U.S. 535, 91 S.Ct . 1586, 29 L.Ed.2d 90 (1971), in which the Georgia Motor Vehicle Safety Responsibility Act was tested, was decided. That act required an uninsured motor vehicle operator to post security to cover the amount of claimed damages arising out of a motor vehicle accident or suffer suspension of his driver and vehicle licenses. The court said since the Georgia act deprived the motorist '* * * of his driver's license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident', that '* * * due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective.' It declared that:

'Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege'.'

To the extent that our opinions in Sturgill v. Beard, supra, and Commonwealth v. Mitchell, supra, conflict with Bell v. Burson, supra, they are overruled, however, in all other respects they are reaffirmed.

Cases have upheld statutes requiring a motorist to impliedly consent to service of process through an agent. Williams v. Carter Bros. Co., Ky., 390 S.W.2d 873 (1965); Tankersley v. Gilkey, Ky., 414 S.W.2d 589 (1967); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); and Carby v. Greco, D.C., 31 F.Supp. 251 (1940). Financial responsibility laws have been approved. Ballow v . Reeves, Ky., 238 S.W.2d 141 (1951). The public can and must be protected against the improper use of a motor vehicle, therefore, the necessity of regulation of drivers becomes readily apparent. Reitz v. Mealey, 314 U.S. 33, 62 S.Ct. 24, 86 L.Ed. 21 (1941).

KRS 186.565 affords a motorist procedure for rapid determination as to whether he has violated the conditions imposed by a statute designed to protect against the devastation being inflicted by intoxicated drivers. Kesler v. Department of Motor Vehicles, 1 Cal.3d 74, 81 Cal.Rptr. 348, 459 P.2d 900 (1969). The department and commissioner must comply strictly with the statutory procedure. 60 C.J.S. Motor Vehicles, § 131, p. 730; 88 A.L.R.2d 1077. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), said that:

'As previously noted, there is a high degree of probability that a...