Elkin v. Com., Dept. of Transp., Bureau of Vehicle Regulation

Decision Date17 September 1982
PartiesRobert S. ELKIN, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF TRANSPORTATION, BUREAU OF VEHICLE REGULATION, and Frank Metts, Secretary, Commonwealth of Kentucky, Department of Transportation, Appellees.
CourtKentucky Court of Appeals

David B. Sloan, Ruberg, Osborne & Taylor, Covington, for appellant.

Owen W. Serey, Covington, for appellees.

Before HOWARD, McDONALD and REYNOLDS, JJ.

HOWARD, Judge.

Robert Elkin appeals an order entered by the Kenton Circuit Court, said order affirming an order of the Commissioner of the Bureau of Vehicle Regulations suspending appellant's driver's license for six months.

The appellant was stopped by Officer Edward J. Burk of the Kenton County Police Department on September 18, 1980, between 2:30-3:00 a.m. after the officer noticed appellant weaving while driving his automobile on Dixie Highway in Kenton County. Officer Burk testified that appellant smelled of alcohol, was unsteady while standing, staggered as he walked, his eyes were glazed and bloodshot and his speech was slurred. Officer Burk administered three sobriety tests to appellant--the standard tests of touching one's nose, standing on one foot, and walking a straight line. Appellant failed all three tests.

Officer Burk then arrested appellant for operating a motor vehicle while under the influence of intoxicating beverages and asked him to take a breathalyzer test to determine the alcohol content of his blood. Officer Burk testified that appellant agreed to take the test and was taken to the Fort Mitchell police station so that the test could be administered. At the station, appellant asked to talk to his attorney prior to taking the test. Officer Burk refused this request and said that the appellant could call his attorney only after he was booked. Appellant then refused to take the test.

Officer Burk warned appellant that his refusal to submit to the breathalyzer test could result in suspension of his operator's license for six months. Officer Burk asked appellant at least three times to take the test and warned him twice of the effect of his refusal. Appellant continued to refuse to take the test and asked to call his lawyer. Appellant was then taken to the Kenton County jail.

Subsequently, a hearing was held on May 11, 1981, before the Department of Transportation, Bureau of Vehicle Regulations, in Frankfort. The hearing officer concluded that Officer Burk had reasonable grounds to believe that the appellant was driving while under the influence of intoxicating beverages and that the arrest was proper. Since appellant refused to submit to a breathalyzer test in accordance with KRS 186.565, the hearing officer recommended that appellant's license should be revoked for six months. On May 20, 1981, the Commissioner of the Bureau of Vehicle Regulation entered an order suspending appellant's license for six months.

Appellant appealed to the Kenton Circuit Court on June 9, 1981, arguing that the hearing officer's recommendations and the order of the Commissioner were arbitrary and capricious and not supported by the evidence. On February 3, 1982, the Kenton Circuit Court affirmed the order of the Commissioner and appellant appealed on February 16, 1982.

Appellant advances two arguments on appeal. The first is that he had a right to consult counsel prior to deciding whether to submit to the requested breathalyzer test. For support, appellant cites decisions from six states and a decision from the United States Supreme Court which he argues either directly or impliedly recognize an individual's right to counsel in determining whether to submit to such a test.

Appellee, on the other hand, cites decisions from nine jurisdictions which have held that no right to counsel in these circumstances exists. Appellee also argues that a Kentucky case, Newman v. Hacker, Ky., 530 S.W.2d 376 (1975), has held that a motorist has no right to have counsel present at the time a breathalyzer test is administered.

We find Newman v. Hacker, supra, to be applicable and dispositive of this case. In Newman, the Kentucky...

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5 cases
  • Durrum v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 25, 2021
  • Litteral v. Com., No. 2007-CA-001982-DG.
    • United States
    • Kentucky Court of Appeals
    • December 5, 2008
    ...of DUI even to telephone his attorney, this Court held that no right of the suspect was affected. Elkin v. Com., Dept. of Transp., Bureau of Vehicle Regulation, 646 S.W.2d 45 (Ky. App.1982). Building upon Newman, we said there was no right even "to consult counsel prior to deciding whether ......
  • Snell v. Commonwealth
    • United States
    • United States State Supreme Court — District of Kentucky
    • March 26, 2020
  • Mounce v. Com.
    • United States
    • United States State Supreme Court — District of Kentucky
    • September 6, 1990
    ... ... Holthaus, Dept. of Public Advocacy, Frankfort, for appellant ... ...
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