Timberlake v. Com., Dept. of Public Safety
Decision Date | 19 February 1971 |
Citation | 464 S.W.2d 283 |
Parties | Gregg TIMBERLAKE, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellee. |
Court | United States State Supreme Court — District of Kentucky |
James F. Clay, Jr., Clay & Clay, Danville, for appellant.
Mary Jo Arterberry, Dept. of Public Safety, Frankfort, for appellee.
The question in this case is whether the driver's license of the appellant, Gregg Timberlake, may be revoked under the authority of KRS 186.565 by reason of his alleged refusal to submit to a blood alcohol test following an arrest for driving a motor vehicle while under the influence of intoxicating liquors. KRS 189.520. The judgment under appeal upheld the revocation.
The case was briefed before our decision in Commonwealth, Dept. of Public Safety v. Powers, Ky., 453 S.W.2d 260 (1970), was handed down, in which it was held that there cannot be a refusal without a request that amounts to something more than an invitation. The officer's testimony concerning Timberlake's refusal to submit to the test was as follows.
It is our opinion that there was no positive, unequivocal 'request' within the meaning of the word as discussed in the Powers case.
The judgment is reversed with directions that the revocation be set aside.
All concur.
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