Request By:
Mr. O.B. Arnold
Commissioner
Bureau of Vehicle Regulation
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of this office pertaining to KRS 186.560 which mandates the mandatory revocation of the driver's license of a person who is convicted of certain named offenses. One of the offenses covered is driving a vehicle while under the influence of intoxicating liquor or narcotic drugs. You state your specific question as follows:
"When does a person's period of suspension begin to run and when would it end if the trial court has picked up the man's license on January 3, 1977, and convicted him of (DWI) on the same date, but the court does not mail the court abstract until February 3, 1977, and the Department is unable to notify the person until March 3, 1977? Is that person under suspension from January 3, 1977, to July 3, 1977; February 3, 1977, to August 3, 1977; or is that person not under suspension until March 3, 1977, to September 3, 1977? If the latter, may we give him credit for the time that the trial court kept his license before mailing?
There has been no court decision to our knowledge on the question you present. We must therefore consider the combined effect of several sections of the statutes.
KRS 186.550(2) provides:
"The court shall take up the motor vehicle operator's license certificate of a person convicted of any of the offenses for which mandatory revocation is provided by KRS 186.560 and have it immediately forwarded to the Department with the report covering the conviction.
KRS 186.510 provides that a driver must have his license in his immediate possession at all times when driving a motor vehicle and display it upon demand of certain named officers. If a person is convicted of an offense requiring mandatory suspension and if the court takes up his operator's license as mandated by statute, such person cannot legally operate a motor vehicle from the instant his operator's license is taken from him. In such a case we believe that the period of suspension begins to run on the date the court takes up the certificate. The period of suspension will not begin to run on the date of conviction if one of the following occurs:
(1) The court does not take up the operator's license certificate;
(2) The operator appeals to the circuit court and gets an injunction or restraining order to prevent the taking up of his certificate or the suspension of his license;
(3) If it is later shown that neither (1) nor (2) occurred, but the operator continued to operate his motor vehicle illegally without his certificate in his possession and without an appeal in the circuit court.
In Commonwealth, Department of Public Safety v. Cox, Judge, Ky., 467 S.W.2d 603 (1971) it was held that the circuit court had jurisdiction to stay the enforcement of the suspension of an operator's license under KRS 186.560 if the operator appeals to the circuit court. We believe that if the operator appeals to the circuit court, obtains a stay of suspension of his license pending the decision in that court, and later his conviction is affirmed by the circuit court and no further stay is obtained, the period of suspension will start from the date which the court or the Department takes up the operator's license certificate.
In summary, we believe that the period of suspension runs from the date upon which the operator can no longer legally drive a vehicle either because he does not have his license certificate in his possession because it has been taken up by the court or because he has been notified by the Department that his license has been suspended and he is ordered to surrender his license certificate to the Department. We would further say that the Department may give the operator credit for the time that the trial court kept his license before mailing it to the Department unless it has been shown in a hearing that the operator continued to drive his vehicle on the highways during that period.