Newman v. Stinson

• Citation: 489 S.W.2d 826
• Parties: William O. NEWMAN et al., Appellants, v. Lee STINSON, Appellee.
• Decision Date: 20 October 1972
• Court: United States State Supreme Court (Kentucky)

Page 826

489 S.W.2d 826

William O. NEWMAN et al., Appellants, v. Lee STINSON, Appellee.

Court of Appeals of Kentucky.

Oct. 20, 1972.

Mary Jo Arterberry, Frankfort, for appellants.

Kenny Grantz, Louisville, for appellee.

VANCE, Commissioner.

The appellee, Lee Stinson, was arrested by police officers in Louisville, Kentucky, at a time when he was nearly 'passed out' behind the steering wheel of his automobile. The automobile was stopped at a street intersection with the motor running. It had not moved for some time although the traffic light had changed several times prior to the arrest.

The officers took the appellee to Louisville General Hospital and requested him to submit to a breathalyzer test. Appellee exhaled some breath into the equipment but the operator of the equipment was unable to obtain a reading from the sample given. The appellee was then requested to breathe again into the equipment. This he refused to do on the ground that he had already complied with the law.

Pursuant to KRS 186.565, an affidavit was filed with the Department of Public Safety certifying the refusal of appellee to submit to the test and thereupon appellee's operator's license was revoked by the Department. He requested and was given the administrative hearing provided by the statute and the revocation was upheld by the Commissioner of Public Safety.

Appellee then appealed to the Jefferson Circuit Court which set aside the revocation, and from the judgment setting aside the revocation the Department of Public Safety now appeals.

Four issues are raised by this appeal. They are: (1) Was there substantial proof that the appellee was in actual control of the motor vehicle, (2) did the appellee sufficiently comply with the requirement of submitting to the test, (3) was KRS 186.565 enforced against the appellee in an unconstitutionally discriminatory manner and (4) is KRS 186.565 unconstitutional as violative of the Fifth and Fourteenth Amendments of the Constitution of the United States and Section Eleven of the Constitution of Kentucky?

With respect to the first issue, it is undisputed that the appellee was nearly passed out over the steering wheel of his motor vehicle which, at the time of his arrest, was stopped at an intersection with the motor running. Appellee points out, however, that no witness saw him drive the car or exercise any control over it.

KRS 186.565(1) provides:

'* * * The test shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages. * * *.'

In DeHart v. Gray, Ky., 245 S.W.2d 434 (1952), we held that one who had left his motor vehicle parked on the street with the motor running and had gone into his house was nevertheless operating the automobile so as to sustain a drunk driving arrest when he staggered out of the house and announced his intention of moving the automobile.

Sitting behind the wheel of an automobile asleep with the motor running was held to be such actual control as to constitute driving while under the influence of intoxicating liquor in Ohio v. Wilgus, Ohio Com.Pl., 17 Ohio Supp. 34. Cf. State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954).

In this case the appellee may well have had very little control of himself but the motor vehicle was unquestionably subject to his control or lack of it as the case may have been. The applicable statute required only that the arresting officer have reasonable grounds to believe that the appellee was in actual control of the automobile or that he had been driving it and the circumstances of appellee's arrest would reasonably support either belief.

Next we come to appellee's contention that he sufficiently complied with the statute by exhaling into the breathalyzer equipment one time. He makes no contention that it was impossible for him to have submitted a further sample of his breath or that to have done so would have been injurious to him in any way. The statute does not prescribe any particular volume of air which must be breathed into the equipment to constitute compliance. In the absence of a showing of the impossibility of compliance or the likelihood of the harm resulting therefrom, we feel that the requirement of submission to the test contemplates that a sufficient sample be given to permit a test to be made and a test result obtained. The appellee did not sufficiently comply.

Appellee next contends that the statute was enforced against him in an unconstitutionally discriminatory manner. It was shown in evidence that in thirty of the one-hundred and twenty counties of the state the Department of Public Safety had received no record of any refusal of any person to submit to the test prescribed by KRS 186.565. From that fact the appellee and the trial court reasoned that the statute was not being uniformly enforced throughout the state and thus the appellee was denied equal protection of the law as required by the Fourteenth Amendment to the Constitution of the United States. Cf. City of Ashland v. Heck's, Inc., Ky., 407 S.W.2d 421 (1966).

We think the evidence does not warrant the conclusion reached. The fact that no record existed of a refusal of submission to a breathalyzer with respect to thirty counties could simply mean that all persons requested to submit to the test in those counties complied with the request.

Affidavits presented at the hearing before the Commissioner of Public Safety attest to the fact that facilities for administering the test are available in those counties and that the state police are actually enforcing the...