Request By:
Mr. Edward J. Blau
Circuit Court Clerk
Campbell Circuit Court
Fourth & York Streets
Newport, Kentucky 41071
Opinion
Opinion By: David L. Armstrong, 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 DUI conviction prior to June 21, 1974 may be used to enhance the penalty for a subsequent DUI conviction pursuant to KRS 189.520(2) and KRS 189.990(9)(a). The answer is "yes."
KRS Chapter 186 "Licensing of Motor Vehicles, Operators and Trailers" contains a provision entitled "Habitual Violator," KRS 186.641-KRS 186.649. KRS 186.641 provides that when the records of the transportation cabinet disclose that a person is an "habitual violator" based upon convictions occurring after June 21, 1974 the secretary of the transportation cabinet shall certify an abstract of that person's driving record to the County Attorney. KRS 186.641 also provides that its requirements apply only to offenses and records of offenses committed after June 21, 1974. Also, KRS 186.018 provides that the transportation cabinet shall not contain a record of any moving traffic conviction which has occurred prior to June 21, 1974.
The non-applicability of offenses prior to June 21, 1974 pertains only to the provisions of Chapter 186. KRS 189.990(9), which provides enhancement penalties for second and subsequent violations of KRS 189.520(2), contains no such limitations upon the offenses which may be used for enhancement purposes. The limiting provisions of KRS Chapter 186 may not be inserted into KRS Chapter 189. KRS 189.520(2) and KRS 189.990(9) are unambiguous; therefore, these statutes are to be interpreted according to legislative intent gleaned from what the authors actually said. Clark v. Clark, Ky.App., 601 S.W.2d 614 (1980). The statutes are to be construed by what was included, not by what might have been included. Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960); Kentucky Association of Chiropractors, Inc., et al. v. Jefferson County Medical Society, et al., Ky., 549 S.W.2d 817 (1977).
Thus, KRS 189.520(2) and KRS 189.990(9) must be construed by the express or literal language contained therein, and not by the limiting provisions of another chapter, which might have been, but were not included in these sections. Accordingly, any previous conviction under KRS 189.520(2) may be used for enhancement purposes under KRS 189.990(9). If proof of previous convictions cannot be obtained from the transportation cabinet due to a destruction of records which are over five years old or have occurred prior to June 21, 1974, proof by any other means is acceptable so long as introduction of such proof complies with the rules on evidence. See OAG 70-696, attached hereto.
We trust this information has satisfactorily answered your inquiry. If you have any additional questions, please contact us.