Slone v. Kentucky Department of Transportation

• Decision Date: 23 July 1974
• Docket Number: Civ. No. 74-10.
• Citation: 379 F. Supp. 652
• Court: U.S. District Court — Eastern District of Kentucky
• Parties: Denver SLONE, Plaintiff, v. KENTUCKY DEPARTMENT OF TRANSPORTATION, Defendant.

379 F. Supp. 652

Denver SLONE, Plaintiff, v. KENTUCKY DEPARTMENT OF TRANSPORTATION, Defendant.

Civ. No. 74-10.

United States District Court, E. D. Kentucky, Frankfort Division.

July 23, 1974.

Dean Hill Rivkin, Appalachian Research & Defense Fund of Kentucky, Inc., Lexington, Ky., Paul F. Fauri, Appalachian Research & Defense Fund of Kentucky, Inc., Prestonsburg, Ky., for plaintiff.

Mary Jo Arterberry, Dept. of Trans., Perry Lewis, Dept. of Highways, Frankfort, Ky., for defendant.

MEMORANDUM

SWINFORD, District Judge.

This action for injunctive and declaratory relief attacks portions of Kentucky's "Implied Consent" provision:

"Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical test . . . for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages." K. R.S. 186.565(1).

Refusal to submit to the test is punishable by a six-month revocation of driving privileges effective upon receipt by the Department of Public Safety (hereinafter: Department) of an affidavit submitted by a law enforcement officer stating:

"Reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages, that the person refused to submit to the test upon the request of the law enforcement officer, and that the person again refused to submit to the test after the law enforcement officer warned him of the effect of his refusal . . . ." K.R.S. 186.565(3).

Although a post-revocation hearing must be provided upon timely demand by the licensee, the statute specifically provides that the "(r)equest . . . does not suspend the order of revocation . . . ." K.R.S. 186.565(4).

The complaint alleges that on December 7, 1973, the plaintiff was arrested by the Kentucky State Police and charged with Driving While Intoxicated. A "breathalyzer" test was administered with Slone's permission, but the arresting officer subsequently prepared an affidavit stating that the motorist refused to submit to the procedure. Although advised on January 9, 1974, that his driver's license was withdrawn because of his refusal to submit to a chemical test, K.R.S. 186.565(3), the notification letter from the Bureau of Vehicle Regulation did not mention the administrative appeal provisions of the statute. The plaintiff accordingly did not demand a hearing following the filing away of the vehicular charges pending against him. It is alleged that K.R.S. 186.565 is unconstitutional for failure to provide notice and hearing prior to revocation.

Following a hearing on June 24, 1974, the court overruled the defendant's motion to dismiss for failure to state a claim, denied certification as a class action, and accorded the parties an opportunity for the submission of written arguments respecting the plaintiff's motion for summary judgment. The record is now before the court¹ for decision.

The plaintiff argues that the failure to accord prior notice and hearing contravenes due process requirements governing the revocation of protected entitlements. The defendant responds that (1) since the assailed provision embraces only those motorists who refuse a chemical analysis, acceptance of the allegation that Slone submitted to the test vitiates any claim of statutorily-inflicted harm; (2) the plaintiff's proper remedy is against the author of the false affidavit; (3) the six-month revocation period provided in the statute has terminated; (4) the denial of the pre-revocation hearing is not unconstitutional in view of the allowance for administrative review following revocation; (5) the legislation embodies a contract binding upon the motorist and enforceable under the state's police power.

The contention that the plaintiff is not adversely affected by the statute belies the very deprivation asserted: The failure to accord a pre-revocation hearing denies to motorists unjustly accused of declining the test an opportunity to demonstrate compliance with the statute. Similarly, a successful action for damages against the charging officer would not reverse the denial of driving privileges by the Commonwealth.

The defendant incorrectly suggests that this challenge is barred by the expiration of the six-month suspension mandated by K.R.S. 186.565. There is little doubt that the revocation of the plaintiff's license conferred the requisite "threatened or actual injury resulting from the putatively illegal action . . . ." S. v. D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973); see also Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). It is equally apparent that this action was not mooted by the expiration of the penalty term. While federal courts will not decide abstract questions, Caldwell v. Craighead, 6th Cir., 432 F.2d 213 (1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1617, 29 L.Ed.2d 123 (1971); Women Strike For Peace v. Hickel, 137 U.S.App.D.C. 29, 420 F.2d 597 (1969), the constitutionality of Slone's brief period of actual suspension is no less justiciable than the rulings examined in So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L.Ed. 310 (1911); "(t)he questions involved . . . ought not to be . . . defeated, by short-terms orders, capable of repetition, yet evading review . . . ." The subject controversy is comparable to the review of temporary agency action in Nader v. Volpe, 154 U.S.App.D.C. 332, 475 F.2d 916, 917 (1973):

"Where a court is asked to adjudicate the legality of an agency order, it is not compelled to dismiss the case as moot whenever the order expires or is withdrawn."

See Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Carroll v. Princess Anne, 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632-633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).

The defendant's final arguments rely heavily on Craig v. Commonwealth, Dept. of Public Safety, Ky., 471 S.W.2d 11, 15 (1971), approving K.R.S. 186.565 as a "valid exercise of the police power"; the opinion noted that the implied consent statute incorporates a rapid administrative review following suspension and properly reflected the superior public interest in safe motoring. Accord, Newman v. Stinson, Ky., 489 S.W.2d 826 (1972). In a strong dissent, Judge Osborne posited that the provision was unconstitutional (1) under Sections 10 and 11 of the Kentucky Constitution; (2) as contrary to the Supreme Court's prior hearing mandate:

"(T)he statute in question is invalid because of its failure to provide for a meaningful hearing prior to the revocation of the license . . . .

* * * * * *

"I do not agree with the majority that a post-suspension hearing can in any way supply due process when a citizen's license has already been revoked." Id. 471 S.W.2d at 17.

While deference must be accorded the pronouncements of the Kentucky Court, the Craig and Newman decisions do not properly reflect the evolving federal concern for the continuing right to use the public highways. The State's pervasive supervisory authority in this area, Bibb v. Navajo Freight Lines, 359 U.S. 520, 523, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959), has on several occasions been subordinated to the individual's interest in the continued enjoyment of a motor vehicle. In Wall v. King, 1st Cir., 206 F.2d 878 (1953), cert. denied, 346 U.S. 915, 74 S.Ct. 275, 98 L.Ed. 411 (1953), the First Circuit Court of Appeals categorized the operation of an automobile as a "liberty" deserving due process protection, but declined to require a hearing as a condition precedent to its revocation.

"Liberties are not absolute. `Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interest of the community.' . . .

"The incidental hardship upon an individual motorist, in having his license suspended pending investigation and review, must be borne in deference to the greater public interest served by the statutory restriction. . . . (T)he concept of due process of law does not necessarily require the granting of a hearing prior to the taking of official action . . . ." Id. at 883, quoting Chicago, B. & Q. R. R. Co. v. McGuire, 219 U.S. 549, 567, 31 S.Ct. 259, 55 L.Ed. 328 (1911).

Accord, Rivas v. Cozens, N.D.Cal., 327 F.Supp. 867 (1971), vacated 409 U.S. 55, 93 S.Ct. 444, 34 L.Ed.2d 265 (1972); Brockway v. Tofany, S.D.N.Y., 319 F. Supp. 811 (1970); Llamas v. Dept. of Transportation, Div. of Motor Vehicles, E.D.Wis., 320 F.Supp. 1041 (1969); Roberts v. Burson, N.D.Ga., 322 F. Supp. 380 (1969); Cf. Pollion v. Lewis, N.D.Ill., 320 F.Supp. 1343 (1970), vacated and remanded for reconsideration in light of Bell v. Burson, infra, 403 U.S. 902, 91 S.Ct. 2212, 29 L.Ed.2d 678 (1971).

This restrictive judicial philosophy was dispelled in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), which held that the Due Process Clause of the Fourteenth Amendment required a hearing prior to the revocation of a driver's license:

"Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. 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. . . . (R)elevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a `right' or a `privilege'." Id. at 539, 91 S.Ct. at 1589.

Noting the adaptability of the due...