Request By:
Honorable Paul W. Rosenblum
District Judge
12th Judicial District
Henry County Courthouse
New Castle, Kentucky 40050
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request an opinion of this office concerning the revocation of motor vehicle operators' licenses issued to nonresidents of Kentucky, and which nonresidents are convicted of drunken driving in Kentucky courts.
In OAG 75-505, to which you referred, we dealt with the question as to whether a Kentucky police judge had a legal right to revoke the privilege of a foreign license holder to operate a motor vehicle upon the public highways of Kentucky. The question was framed in the factual context of a conviction for driving while under the influence of intoxicating beverages, as denounced, at that time, by KRS 189.520(2). Our answer to that question was that upon the "driving under the influence" conviction of a nonresident operating his car under a license issued in his home state, the Kentucky trial court did not have the authority to physically take up such operator's license, since KRS 186.550 and 186.560 envisioned convictions of Kentucky residents operating under licenses issued in Kentucky. Further, we concluded that the Kentucky trial court had no authority, in such drunken driving cases, to withdraw or revoke the nonresident's privilege of operating a motor vehicle in this state. That could only be done by the Department of Transportation under KRS 186.570(1)(a), with or without a hearing, where the Department had reason to believe that such person had committed any offenses for the conviction of which mandatory revocation of license was provided by KRS 186.560. We said that the Kentucky trial court could report the conviction for drunken driving of the nonresident to the Department of Transportation as a basis for the Department's taking the discretionary action of withdrawal of the privilege of operating a motor vehicle in Kentucky, under KRS 186.570. See Commonwealth, Dept. of Public Safety v. Walker, Ky., 481 S.W.2d 681 (1972); 60 ALR3d 361; and Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971).
In view of the newly enacted drunken driving law, you would like to know whether this office would take the same view concerning the Kentucky trial court's physically taking a convicted nonresident's operator's license. You specifically refer to Section 8 of S.B. 20 (1984 session), which is now KRS 189A.080.
KRS 189A.080(1) provides:
"(1) All licenses suspended or revoked pursuant to KRS 189A.060 or 189A.070(1)(a) shall be surrendered to the court. Other revocations pursuant to this chapter shall be administered by the transportation cabinet. "
KRS 189A.060 provides, in part, that upon the arrest of a person for violation of KRS 189A.010 (D.U.I.), and on motion of the attorney representing the Commonwealth, the court may, following a hearing, suspend the arrested person's driving license until final disposition of the case if the court finds there is probable cause to believe that the person arrested violated KRS 189A.010 and any of the aggravated circumstances detailed in that statute. This is a pretrial suspension by the court, which suspension cannot exceed sixty (60) days.
KRS 189A.070 deals with the revocation of an operator's license where the operator is at least eighteen (18) and is convicted of a violation of KRS 189A.010 (D.U.I.).
It must be carefully noted that KRS 189A.060 (pretrial suspension of license) , KRS 189A.070 (license revocations) , KRS 189A.080 (surrender of suspended or revoked licenses) , and KRS 189A.090 (conviction for driving while license is suspended or revoked and doubling the period of revocation) , are all silent as to nonresident operators. Thus we conclude that they are written in terms of resident defendants who hold motor vehicle operators' licenses issued in Kentucky.
That conclusion is buttressed by the language in KRS 186.570, pertaining to the Transportation Cabinet's withdrawal, in the case of a nonresident, after a hearing, of the privilege of operating a motor vehicle in Kentucky whenever the Transportation Cabinet has reason to believe that such person has committed any offenses for the conviction of which mandatory revocation of a license is provided by KRS 186.560. That support is evident, by the explicit mention of a "nonresident operator" in KRS 186.570(1)(a) and by the mention in KRS 186.560(3), as amended in 1984, of the Transportation Cabinet's authority to extend the period of withdrawal of privilege to operate a motor vehicle in Kentucky.
Further support for our conclusion that a Kentucky trial court has no authority to physically take possession of the nonresident operator's license, where convicted of D.U.I., is found in KRS 186.565. Under subsection (3) of the latter statute, where a person operating a motor vehicle in Kentucky is arrested for any offense arising out of drunken driving and refuses, to a law enforcement officer, to take a test of his blood, breath, urine or saliva, and refuses again upon the consequences of his refusal being explained, the Transportation Cabinet, upon receiving the report of the law enforcement officer (as described in subsection (3)), shall serve notice on the operator to appear before the Secretary (or his agent) and show cause why, "if said person is a nonresident, " his privilege to operate a motor vehicle within Kentucky should not be revoked. (Emphasis added). Subsection (5) of KRS 186.565 again mentions the revocation of a nonresident's operating privilege. Subsection (6) of KRS 186.565 provides in part that when it has been finally determined that "a nonresident's privilege to operate a motor vehicle in this state has been revoked, the Cabinet (Transportation) shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license. (Emphasis added).
CONCLUSIONS
(1) It is our opinion, based upon the literal wording of the statutes, that, in "driving under the influence" convictions involving a nonresident motor vehicle operator, the Kentucky trial court has no authority to physically take possession of the nonresident's foreign operator's license. See Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984) 834, where the Supreme Court ruled that it had a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion.
(2) It is our opinion that a Kentucky trial court in such cases, described above, has no authority to withdraw or revoke the nonresident's privilege of operating a motor vehicle in Kentucky. The withdrawing or revoking of a nonresident's privilege to operate a motor vehicle in Kentucky is the responsibility of the Transportation Cabinet, pursuant to KRS 186. 560, KRS 186.565, KRS 186.570, KRS 189A.070, and KRS 189A.080. Such statutes are in pari materia. The rule is that statutes in pari materia should be construed together, since they deal with the same basic subject, which in this situation involves the driving of a vehicle under the influence of alcohol. The courts have held that such statutes should be construed so as to harmonize and give effect to the provisions of each. Economy Optical Co. v. Kentucky Board of Opt. Exam., Ky., 310 S.W.2d 783 (1958) 784.
(3) In addition to the above considerations of Kentucky's statutes, "the governments of the states are sovereign within their territorial limits and have exclusive jurisdiction over persons and property located therein." 72 Am.Jur.2d, States, Etc., § 4, p. 409. However, Kentucky, through its laws regulating automobile traffic, cannot legitimize the taking up and suspending of a motor vehicle operator's license issued to a nonresident in a foreign state. That is a sovereign right of police power reserved to the state of issue. The police power of a state to regulate the running of motor vehicles on its highways covers nonresidents as well as residents. 7A Am.Jur.2d Automobiles and Highway Traffic, § 56, p. 237. However, the power to include nonresident motorists in its regulations does not include the power to take up and suspend or revoke an operator's license issued by another state. The licensing of drivers is a state matter and such state legislation in that field is exclusive. 92 ALR2d 204. See also 7A Am.Jur.2d, Automobiles and Highway Traffic, §§ 96 and 97, pages 269-270; and Thompson v. Smith, 155 Va. 367, 154 S.E. 579, 71 ALR 604. The domestic state does have the authority to suspend or revoke the privilege of using that state's highways. 7A Am.Jur.2d, Automobiles and Highway Traffic, § 82, p. 261; Commonwealth v. Mitchell, Ky., 355 S.W.2d 686 (1962) 688; and Ashland Transfer Co. v. State Tax Commission, 247 Ky.144, 56 S.W.2d 691 (1932) 693. The basic purpose of suspension of an operator's license can be subserved where the Transportation Cabinet withdraws the driver's privilege to operate a motor vehicle in Kentucky.