Request By:
Douglas L. Greenburg
Mercer County Attorney
Courthouse, Main Street
Harrodsburg, Kentucky 40330
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an opinion of this office as to whether a police officer can stop a driver suspected of being under the influence of alcohol, pursuant to KRS 189.520, and take that individual to the police station for a breathalyzer test before arresting the individual and charging him or her with that offense.
The answer to this question is "no." KRS 186.565(1) provides:
Any person who operates a motor vehicle in this state is deemed to have given his consent to a chemical test of his blood, breath, urine or saliva for the purpose of determining the alcoholic content of his blood, if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating beverages. . . . (Emphasis added).
The statute clearly requires an arrest before the state can imply consent to a chemical test on the part of the driver. Also note that no one can be "compelled" to submit to the chemical test. KRS 189.520(6).
We hope this sufficiently answers your inquiry. If you have any further questions please contact us.