Request By:
Hon. James H. Lambert
Rockcastle County Attorney
P.O. Box 736, Church Street
Mt. Vernon, Kentucky 40456
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to our office in which you request an Opinion of the Attorney General pursuant to KRS 15.025. In your letter, you ask whether KRS 186.565 precludes an officer from requesting a person suspected of driving under the influence of intoxicants to submit to more than one test to determine the presence of alcohol or other substances which may impair one's driving ability.
Within reasonable limitations, we are of the opinion that nothing in the statutes or in the caselaw actually operates to preclude a law enforcement officer from administering more than one test to a suspected driver to determine whether he is under the influence of alcohol or other substances which may impair one's driving ability.
This legal issue arises because the relevant statute, KRS 186.565, appears to speak in terms of the singular, using wording such as "a test" and "the test."
KRS 446.020 states, in pertinent part, as follows:
(1) A word importing the singular number only may extend and be applied to several persons or things, as well as to one person or thing, and a word importing the plural number only may extend and be applied to one person or thing as well as to several persons or things.
In addition, KRS 446.080 requires courts to give a liberal interpretation of the Kentucky Revised Statutes. The relevant portion states as follows:
(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derrogation of the common law are to be strictly construed shall not apply to the statutes of this state.
We note that there are no Kentucky appellate cases which have limited the interpretation of the statutes to legally permit the administration of only one test. Additionally, the courts have long held that a liberal interpretation of the statutes is proper. In Newbolt v. Board of Ed. of Berea Independent School Dist., Ky., 409 S.W.2d 513 (1966), the court held, ". . . the courts will consider the purpose which the statute is intended to accomplish. . . . And the courts will not give a strict literal construction to a statute if it would lead to an unreasonable or absurd conclusion." Id., at 514. See also Kentucky Mountain Coal Company v. Witt, Ky., 358 Ky. 517, 518 (1962). In Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974), the court held, "the policy and purpose of the statute will be considered in determining the meaning of the words used." Id., at 491.
The legislative intent of the statute is obviously to provide a readily available legal mechanism by which law enforcement officers can quickly detect motorists who drive under the influence of intoxicating substances. It should be emphasized that the wording of KRS 189A.010(1) forbids a driver from operating a motor vehicle in this state "while under the influence of alcohol or any other substance which may impair one's driving ability." (Emphasis added.)
It makes sound public policy to permit a law enforcement officer to request more than one test. There are numerous examples of situations in which the officer might need to make such a request. For example, the first breathalyzer may indicate a malfunction within the instrument. In this case, the suspect might be requested to breathe into the instrument a second time or to submit to another test. If a defendant could successfully argue in court that he should not be subjected to any second test, this would lead to the "absurd" conclusion that the results of the second test be excluded from evidence.
Another example in which an additional test might be necessary would be when the particular test chosen by the officer is not scientifically capable of detecting the particular intoxicating substance which impairs the motorist's driving ability. It is a well-recognized medical principle that various tests are sometimes necessary to determine whether an individual is intoxicated, since there is no universal test which alone is capable of determining the presence of any possible intoxicating substance.
Within reasonable limitations, we are of the opinion that nothing in the statutes or in the caselaw actually operates to prevent a peace officer from administering more than one test to determine a suspected violator's chemical content of alcohol or other substance which may impair one's driving ability. We believe that public policy requires such an interpretation of the statute, particularly in light of the overwhelming law enforcement difficulties which exist in detecting violators who drive under the influence of innumerable intoxicating substances.