Request By:
Mr. Bruce K. Davis
Assistant Commissioner
Bureau of Vehicle Regulation
210 State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on the following questions:
(1) May the Division of Driver Licensing advise a circuit clerk to refuse to issue an operator's license to a nonresident over the age of sixteen (16) who has not been licensed as an operator in his home state or country but whose home state or country requires the licensing of operators?
(2) For example, if a foreign student, who is in this country on a student visa, applies for an operator's license and passes the written test and road test then must he be issued an operator's license?
The following statutory provisions are pertinent to the question:
"KRS 186.410(1). Every person except those exempted by KRS 186.420 and KRS 186.430 shall before operating a motor vehicle or moped upon a highway secure an operator's license as provided in this chapter."
"KRS 186.430(1). A non-resident over the age of 16 who has been licensed as an operator in his home state or country and who has a valid operator's license certificate in his immediate possession may drive a motor vehicle upon Kentucky highways without a Kentucky's operator's license, if his own state or country accords similar privileges to licensed residents of Kentucky."
One of the prerequisites for obtaining a motor vehicle operator's license is that the applicant must be a resident of the county in which he applies, and he must state his present resident address. KRS 186.412(1). If a person's sworn application contains a resident address in the county, he is facially qualified to receive a license.
The question of residency has been a frequent question of litigation. The courts have held that a person may have more than one residence and may have different residences for different purposes. Hayes v. Board of Regents of Kentucky State University, U.S.D.C., E.D. Ky., 362 F.Supp. 1172 (1973). It has also been held that students may not be treated differently than other persons in regard to proof of residency. Bright v. Baesler, U.S.D.C., E.D. Ky., 336 F.Supp. 527 (1971).
In regard to aliens, the emigration laws recognize different clases such as "resident aliens" and "permanent resident aliens" . Wong v. Board of Trustees, California State University and Colleges, Cal. 53 C.A.3d 705 (1975).
A circuit court clerk is a ministerial officer and as such is not charged with the responsibility or authority to make discretionary decisions as to the status of an alien. If a person's application for an operator's license states that he is a non-resident, the clerk, of course, should refuse to issue an operator's license. If the application states that the person is a resident of the county, the clerk's duty is to issue the license provided the other legal requirements are met. A person between the ages of 16 and 18 may only obtain an operator's license if his application is signed by a parent or legal guardian of the applicant. KRS 186.470(1).
It is our opinion that it would be improper to advise circuit clerks to refuse a license to a person whose application, on its face, meets the statutory requirements even if the clerk has knowledge that the applicant is in this country on a student visa. We do not regard the reciprocal provision of KRS 186.430(1) as constituting a bar against the licensing of a person who has established a residence in Kentucky without first acquiring an operator's license in his place of former residence.