Wеsley Thomas CRAIG, Appellant, v. COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, William O. Newman, Commissioner, Appellee.
Court of Appeals of Kentucky.
Sept. 24, 1971.
472 S.W.2d 11
We know of nothing to require the Commonwealth to later place these in evidence before the jury as there was no question for the jury to determine concerning them.
Judgment affirmed.
All concur.
Cabell D. Francis, Ben K. Wilmot, Stanford, for appellant.
John B. Breckinridge, Atty. Gen., Mary Jo Arterberry, Midway, for appellee.
STEINFELD, Judge.
Kentucky State Police Officers lifted appellant, Craig, out of a motor vehicle parked on a highway. He appeared to be
Craig claims that the officers failed to make the type of request required by
Officer Kenneth Keith testified:
“He was asked if he would like to have a blood-alcohol test and he declined, stating that he didn‘t want it himself, but to give it to his buddy. He was sick. And he was asked three different times, the best I remember, during the course of his arrest and on the way to the jail, if he would like to have a blood-alcohol test and it was also explained to him that if he refused the blood-alcohol test, that his license would be suspended.”
Keith also said Craig “* * * was asked if he requested a blood-alcohol test * * *” and “* * * if he wanted the blood test * * *“.
Officer James Gay said: “* * * I asked Mr. Craig again if he desired to take the B-A test * * *” and Gay warned Craig that he would lose his license if he did not take the test.
In Com., Dept. of Public Safety v. Powers, Ky., 453 S.W.2d 260 (1970), and Timberlake v. Com., Dept. of Public Safety, Ky., 464 S.W.2d 283 (1971), we held that the requests did not comply with
It should be noted Officer Keith testified that on three differеnt occasions he asked Craig “if he would like to have a blood-alcohol test“, however, both officers warned Craig that failure to take the test would result in his license being suspended. It therefore appears to us that the warnings distinguish this case from Powers and Timberlake and that here there was substantial compliance with
Craig demands that we declare
Craig argues that inasmuch as the procedure does not require a due process hearing before the license is required to be surrendered the statute is unconstitutional. He cites Sniadach v. Family Finance Corporation of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969),4 which held invalid a procedure authorizing garnishment of an employee‘s wages. Next he cites Pack v. Dietz, Ky., 455 S.W.2d 575 (1970), and Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).5 The latter two cases declared the right to a hearing prior to discontinuance of payment of welfare subsistence money. He also relies on Kentucky Alcoholic Beverage Control Board v. Jacobs, Ky., 269 S.W.2d 189 (1954), in which we ruled that a statute allowing the Kentucky Alcoholic Beverage Control Board to pаdlock licensed premises amounted to denial of due process. Several cases from foreign jurisdictions are cited but it would unreasonably lengthen this opinion to discuss them.
The department responds that the orderly and rapid procedure provided by the statute satisfies the requirements of due process. It demonstrates that the shortest time one can be deprived of his license prior to determination is six days and the longеst time forty-two days. Of course, should the licensee be unsuccessful and exercise his right of appeal to the circuit court there may be substantial delays. It notes that in Sturgill v. Beard, Ky., 303 S.W.2d 908 (1957)6 we said:
“It is now too late to contend that a citizen of this Commonwealth is born with a natural and irrevocable ‘right’ to operate a motor vehicle on our public roads, because it is now a privilege granted by a license of the state, subject to reasonable rеgulations by the state in the exercise of its police powers. (citing cases and texts). Hence, when the conditions imposed by the license are violated by the licensee, the suspension of the privilege to operate a vehicle is not a denial of ‘due process of law‘. (citing cases).”
These principles were reaffirmed in Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962).
The department argues that Craig had no “vested property right” in his driver‘s license. After this case was tried Bell v. Burson, Director, Georgia Department of Public Safety, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), in which the Georgia Motor Vehicle Safety Responsibility Act was tested, was decided. That act required
“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. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state рower to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege‘.”
To the extent that our opinions in Sturgill v. Beard, supra, and Commonwealth v. Mitchell, supra, conflict with Bell v. Burson, supra, they are overruled, however, in all other respects they are reaffirmed.
Cases have upheld statutes requiring a motorist to impliedly consent to service of process through an agent. Williams v. Carter Bros. Co., Ky., 390 S.W.2d 873 (1965); Tankersley v. Gilkey, Ky., 414 S.W.2d 589 (1967); Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091 (1927); and Carby v. Greco, D.C., 31 F. Supp. 251 (1940). Financial responsibility laws have been approved. Ballow v. Reeves, Ky., 238 S.W.2d 141 (1951). The public can and must be protected against the improper use of a motor vehicle, therefore, the necessity of rеgulation of drivers becomes readily apparent. Reitz v. Mealey, 314 U.S. 33, 62 S. Ct. 24, 86 L. Ed. 21 (1941).
“As previously noted, there is a high degree of probability that a motorist who refuses to submit to a reasonably reliable chemical test for determining intoxication is a dangerous driver; therefore, it is the opinion of this court that there exists a compelling public interest in the immediate removal of such persons from the highways of this state pending a hearing on the matter. ‘The incidental hardship upon an individual mоtorist, in having his license suspended pending investigation and review, must be borne in deference to the greater public interest served by the statutory restriction.’ Wall v. King, 206 F.2d 878, 883 (1st Cir. 1953).”
In Pollion v. Lewis, 320 F.Supp. 1343 (N.D.Ill.1970), it was said:
“Regardless of the technical classification of drivers’ licenses and vehicle registrations as ‘privileges’ under state law, these interests are subject to the protections of the Due Process Clause of the Fourteenth Amendment. Wall v. King, 206 F.2d 878, 882 (1st Cir. 1953), certiorari denied, 346 U.S. 915, 74 S. Ct. 275, 98 L. Ed. 411. Due process does not, however, require а prior adversary hear-
ing in all cases in which a significant private interest is jeopardized by government regulatory action. (Citing cases). The constitutionality of the particular statutory procedures must be determined after consideration of the interests at stake, both private and governmental, and the function and character of the evidentiary determinations which must be made.”
It held that the Illinois statute which did not provide for a full adjudicatory hearing upon disputed facts prior to the effective date of the suspension did not contravene constitutional provisions.
In Brockway v. Tofany, 319 F.Supp. 811 (S.D.N.Y.1970), an action involving the question of whether due process required a hearing before the New York Commissioner of Motor Vehicles could extend the revocation of a driver‘s license beyond the mandatory period, it was said:
“In determining whether minimum procedural safeguards required by due process have been afforded to an applicant for a driver‘s license, we are guided by the oft-quoted principle proclaimed by the Supreme Court in Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), that due process does not demand ‘inflexible procedures universally applicable to every imaginable situation,’ but must be resolved after a balancing of the governmental function involved against the substance of the private interest affected. (citing cases).”
The complaint attacking the act was dismissed.
“The laws pertaining to the revocation of an operator‘s motor vehicle registration are not intended as a punishment to the operator but are designed solely for the protection of the public in the use of the highways.” 60 C.J.S. Motor Vehicles § 127, p. 721. Our statute imposes no penal sanctions on those who refuse to be tested.
When a person licensed to drive “* * * abuses the privilеge and acts in a manner which would lead the proper authorities to believe that his continued operation of a vehicle would constitute a menace to himself and others, then it seems altogether proper that this person‘s permission to drive should be temporarily suspended until a determination of his fitness can be ascertained.” Robertson v. Tomson, 60 Misc.2d 275, 303 N.Y.S.2d 115 (1969).
Balancing the public interest with the entitlement of the individual to oрerate a motor vehicle and in light of the requirement for an accelerated determination of the claimed violation, we hold that the procedure provided in
The judgment is affirmed.
MILLIKEN, C. J., and EDWARD P. HILL, Jr., NEIKIRK, PALMORE and REED, JJ., concur.
OSBORNE, J., dissents.
OSBORNE, Judge.
I respectfully dissent from the majority opinion. It is my opinion that the statutory scheme which the legislature attempted to еffect by the enactment of
In summary, the effect of the two above-quoted statutes is: 1. Provide for the revocation of the license of one convicted in court of driving while intoxicated. 2. Provide for a blood-аlcohol test to be taken on the “implied” consent of the operator of a vehicle. If one does not give his consent then his license is revoked for a period of six months. It is the obvious intent and purpose of this statute to obtain evidence through means of the blood-alcohol test to be introduced at the trial of the accused if he is charged with any of the offenses under
It is patently clear under sections 10 and 11 of the Constitution that the results of such tests would not be admissible in evidence in a criminal prosecution unless the accused consented to the test. See Sullivan v. Brawner, 237 Ky. 730, 36 S.W.2d 364, and McManus v. Commonwealth, 264 Ky. 240, 94 S.W.2d 609, the latter case specifically holding that evidence obtained as the result of a physical examination is inadmissible unless acquired with the specific approval of the accused.
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court of the United States had this question before it, viz., the rights of one required to take a blood-alcohol test as measured by the
Section 11 of the Constitution of this Commonwealth is broader than the fifth amendment in that it provides: “He cannot be compelled to give evidence against himself nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.”
As above pointed out, we have gone further in construing section 11 than the Supreme Court has in construing the fifth amendment in that we have held that this not only prohibits the compelling of matters of testimonial or communicative nature but also prohibits physical evidence concerning the body of the accused takеn without his permission.
From the foregoing there appears to be no doubt but what the evidence obtained by virtue of the blood test is inadmissible in this jurisdiction not only in a criminal proceeding but a civil one as well. See Hovious v. Riley, Ky., 403 S.W.2d 17 (1966). The evidence which the blood test is designed to procure is inadmissible in evidence because it is obtained in violation of sections 10 and 11 of the Constitution of this Commonwealth, unless obtained by the consent of the accused. Therefore, the crux of this entire controversy rests in whether or not evidence obtained under duress, viz., a statute which would take one‘s privilege of driving an automobile away unless he consented to the test is evidence legally obtained. To me there can be but one answer to the proposition. Any attempt upon the part of the legislature to
I fully rеalize and appreciate that there are those who in this modern day and age may sincerely feel that the Commonwealth is justified in taking away the constitutional right of the citizen against self-incrimination in its earnest effort to apprehend and convict those who drive while under influence of intoxicants. In order to justify this legislative act one must hold this concept. I simply do not agree with it. I believe the right against self-incrimination is so inherent аnd so deeply imbedded in our constitutional concept of free government that to take it away under these circumstances is to make a grave mistake.
Appellant in his brief before this court does not specifically contend that the act is unconstitutional under sections 10 and 11, however, I believe his attack upon the act is broad enough to encompass all applicable sections of both the State and Fеderal Constitutions.
It is my further opinion that the statute in question is invalid because of its failure to provide for a meaningful hearing prior to the revocation of the license, therefore, denying to the accused due process of law under both our Federal and State Constitutions.
The Supreme Court of the United States in Bell v. Burson, Director of the Georgia Department of Public Safety, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90, decided May 24, 1971, in considering the constitutionality of state financial responsibility laws stated:
“Oncе licenses are issued, as in petitioner‘s case, 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. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege.’ Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965.” (Emphasis added).
In the case before us the appellant got no notice of hearing before the suspension letter of September 4, 1969, which contained a threat of fine and imprisonment and in fact the Department would not hold hearings until after appellant agreed to surrender his drivers license. In my judgment this in no way can be considered due process. 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. In this instance the appellant was found not guilty of driving while intoxicated by a court of competent jurisdiction. However, his license was nevertheless revoked, not because he was driving while intoxicated for this fact had been judicially determined,
In summary, I would point out that many rights not explicitly mentioned in the Constitution have been deemed to be so elementary to our way of life that they have been labeled basic rights. Such is the right to travel from state to state, United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239. Such, also, is the right to marry, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010. I would place among these rights the right to use the highways in an automobile and I would not require the citizen to give up the right against self-incrimination in order to enjoy it.
For the foregoing reasons, I respectfully dissent.