Request By:
Honorable Scott Collins
Attorney at Law
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Robert F. Stephens, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General on a matter involving the Kentucky Implied Consent Law. You state that your client Jerry McGarey was charged with driving while intoxicated after being arrested on a private road where he and a friend were sitting in a parked automobile; that after a trial the judge saw fit to reduce the charge to public drunkeness; that you client received a notice that his operators license was being suspended by the Division of Drivers Licensing because he had refused to take a chemical test for intoxication as required by KRS 186.565, Kentucky's Implied Consent Law; that you client notified the Division of Drivers Licensing that he wanted to have a hearing on the suspension of his operators license and then changed his mind and decided he would rather go to drivers education school; that the Division notified your client that he would have to change his plea of guilty of DWI in order to enroll in the school.
You question whether a person who has refused to take a chemical test for intoxication under KRS 186.565 may avoid suspension of his driving privilege by attending driver education school without having been convicted of driving while intoxicated.
The pertinent portion of the statute is contained in KRS 186.565(6) where it is stated:
"The provisions of this statute shall not apply to a person who refused to submit to a chemical test of his blood, breath, urine or saliva if that person has enrolled in a driver education program under the terms and conditions of KRS 186.560(4) and the rules and regulations adopted thereunder."
The pertinent portion of KRS 186.560 referred to in the above quoted statute is in subsection (4) and reads as follows:
"Provided, however, the Department may, upon receipt of the written recommendation of the court in which any person has been convicted of violating KRS 189.520(2), who has had no previous conviction of said offense, that said person's operator's license not be revoked, restrict said person's operator's license according to such terms and conditions as the secretary in his discretion may require, provided said person has enrolled in such driver's education program as the department may require. In the event said person fails to satisfactorily complete said driver's education program or violates the restrictions on his operator's license, the department shall forthwith revoke said operator's license for a period of six (6) months."
It is the opinion of the Attorney General that the Division of Drivers Licensing is correct in holding that a person cannot avoid the suspension of his driving privileges by attending driver's education school unless a court has found him guilty or he has pled guilty to violating KRS 189.520(2).
Two different matters are involved here. One is the offense of driving while drunk and the other is the Implied Consent Law. It has been held in a number of cases that the revocation or suspension of a drivers license is not part of the penalty for drunk driving under KRS 189.520(2). Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962). Although a person can have his driving privileges suspended for drunk driving he can be acquitted of drunk driving and still have his license suspended for refusing to take a chemical test. However the statute provides that he can only avoid suspension by attending a driver's education program as provided by KRS 186.560. That statute provides the driver's education program for persons who have been convicted of DWI, KRS 189.520(2) and the judge has made a written recommendation that the person be allowed to attend the driver's education program in lieu of a suspension of his operator's license. Since KRS 186.565(6) is tied to KRS 186.560(4) the driver's education program is not provided as an alternative for the person who has not been convicted of KRS 189.520(2) but who has refused to submit to a chemical test.
The proper course for a person in the position of your client would be to avail himself of the privilege of having a hearing before the Division of Drivers Licensing and show cause why his privilege to operate a motor vehicle should not be suspended or revoked. Failure to ask for or attend the hearing results in an automatic suspension. (In Department of Public Safety v. Thomas, Ky., 467 S.W.2d 335 (1971), it was held that it was an unconstitutional denial of due process to suspend the operating privilege without affording the opportunity for an evidentiary hearing. After said decision KRS 186.565 was amended to provide for the granting of the hearing.)
We cannot predict what the Division would decide in your client's case but the fact that he was convicted of a non-driving offense could possibly cause the Division to decide not to suspend his license. In any event, attending a driver's education program is not a solution to your client's problem.