Newman v. Smith

Citation481 S.W.2d 679
PartiesW. O. NEWMAN, Commissioner of Public Safety, Frankfort, Kentucky, Appellant, v. Claude SMITH, Appellee.
Decision Date23 June 1972
CourtUnited States State Supreme Court — District of Kentucky

Mary Jo Arterberry, Frankfort, for appellant.

Jessie Horn, Hazard, for appellee.

REED, Judge.

The Commissioner of Public Safety appeals from a decision of the circuit court which set aside the revocation of the driver's license of the appellee, Claude Smith. The basis of revocation was Smith's refusal to submit to a chemical test of his breath after he had been arrested for operating a motor vehicle while under the influence of intoxicating beverages. The trial court found that although there was support for the administrative finding that Smith refused to take the test within the meaning of the statute (KRS 186.565), the evidence presented before the administrative agency was insufficient to establish that the arresting officer had reasonable grounds to believe that Smith was driving while under the influence of intoxicating beverages at the time of arrest. We reverse the decision of the circuit court because the record establishes that the commissioner's action in revoking Smith's license was supported by substantial evidence, and therefore cannot be disturbed upon judicial review.

State Trooper Shelby Nease arrested Claude Smith and charged him with operating a motor vehicle while under the influence of intoxicating beverages. Nease testified that he first noticed Smith's car on the wrong side of the yellow line in the trooper's line of traffic. Nease said that he turned his cruiser around and proceeded to follow Smith's car. He then observed the Smith car illegally enter an exit, apparently from a limited-access highway. Smith drove his car the wrong way on the exit. According to Nease, Smith was speeding. The trooper testified that he directed Smith to pull his car over and stop. The officer stated that he requested Smith to walk a straight line, which he was unable to accomplish; that the driver weaved; that his eyes were red; and that he smelled of alcoholic beverages.

Nease requested Smith to take the chemical breath test. Smith orally agreed. While they were en route to the testing location, however, Smith started to light a cigarette and was stopped from doing so by the officer who informed him that he must not smoke, eat or drink anything for 20 minutes before taking the test. Following this, Smith extracted a candy breath mint and the officer again warned him against eating prior to the test. Nevertheless, Smith proceeded to eat the mint and remarked, 'God damn your old test.' The officer concluded this was a refusal and filed the sworn report required by statute (KRS 186.565(3)) that Smith had refused to take the chemical breath test.

The Department of Public Safety notified the driver that his license was revoked for a period of 6 months. The driver requested an administrative hearing which was conducted and in which the driver was afforded full opportunity to give his version of the facts. (KRS 186.565(4)).

Smith's verson was that he had drunk only 1 1/2 to 2 beers, that his car weaved and crossed the...

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5 cases
  • Duncan v. Safety Responsibility Unit, Dept. of Revenue
    • United States
    • Missouri Court of Appeals
    • April 26, 1977
    ...1121, 25 L.Ed.2d 396 (1970) motorist insisted on taking all three tests authorized by statute which amounted to a refusal; Newman v. Smith, 481 S.W.2d 679 (Ky.1972) "God damn your old test" is a refusal; State v. Lyon, 129 Vt. 141, 274 A.2d 478 (1971) driver would take test if officer would......
  • Cummins v. Lentz
    • United States
    • Kentucky Court of Appeals
    • June 7, 1991
    ...the vehicle while under the influence of intoxicants. Bearing in mind that no more than "reasonable grounds" are required, Newman v. Smith, Ky., 481 S.W.2d 679 (1972), we find it difficult to perceive how the trooper could have concluded otherwise when we have but one car with the individua......
  • Com., Dept. of Public Safety v. Walker
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 23, 1972
    ...When Walker failed to appear at the clinic, the notice of revocation to which his appeal was addressed was issued. Unlike Newman v. Smith, Ky., 481 S.W.2d 679 (this day decided) no administrative evidentiary hearing was afforded Walker. The only evidentiary hearings in the case are the unre......
  • Elkin v. Com., Dept. of Transp., Bureau of Vehicle Regulation
    • United States
    • Kentucky Court of Appeals
    • September 17, 1982
    ...control of his automobile while under the influence of intoxicating beverages. Therefore, his arrest was proper. See Newman v. Smith, Ky., 481 S.W.2d 679 (1972). Also, there is sufficient evidence in the record that appellant refused to take the breathalyzer test after repeated requests and......
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