Request By:
Hon. Jerome L. Lentz
Deputy Secretary and Acting Commissioner
Department of Vehicle Regulation
Transportation Cabinet
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Perry T. Ryan, Assistant Attorney General
You recently wrote a letter to this office in which you requested an Opinion of the Attorney General as to how the Transportation Cabinet should administer the provisions of KRS 186.565. In your letter, you note that the statute requires the Cabinet to suspend or revoke a person's driver's license upon receipt of a sworn affidavit from the arresting officer which states that the person refused to submit to a test to determine the presence of intoxicating substances.
You have specifically asked two questions. First, you inquired whether the Cabinet would be bound by a plea bargain agreement made by a local prosecutor in which the prosecutor or the arresting officer agrees to ask the Cabinet to withdraw the officer's sworn affidavit which notified the Cabinet that the defendant refused to submit to a test as required by KRS 186.565. You also ask whether this practice would circumvent the Cabinet's authority under the statute.
We are of the opinion that once a peace officer submits a sworn affidavit to the Transportation Cabinet pursuant to KRS 186.565, stating that a person suspected of driving under the influence of intoxicants has refused to submit to a test to determine the presence of intoxicating substances, the Cabinet acquires jurisdiction over the proceeding as it pertains to the operator's license revocation. For this reason, a plea bargain agreement that the affidavit be withdrawn reached by a local prosecutor and the defendant has no binding effect on the Cabinet with regard to proceedings conducted under KRS 186.565. Although we have been unable to locate any Kentucky case law which directly answers your questions, there is substantial authority to support our conclusion.
Upon the filing of a sworn affidavit that a DUI defendant refused to submit to a test, as required by KRS 186.565, the Transportation Cabinet obtains jurisdiction over the proceeding for the purpose of revoking that person's driver's license. In
Binckley v. State Department of Motor Vehicles, Wash.App., 556 P.2d 561 (1976), the Washington Court of Appeals held that the receipt of a "sworn report" from the arresting officer of a motorist's refusal to submit to a test is a jurisdictional prerequisite to the institution of license revocation proceedings under the implied consent statute. The Cabinet, in a quasi-judicial proceeding, has the authority to administratively adjudicate questions arising out of the license revocation. See
Webb Transfer Line, Inc., et al. v. Jones, Ky., 379 S.W.2d 444 (1964) and
Goodenough v. Kentucky Purchasing Co., et al., Ky., 45 S.W.2d 451 (1931).
The suspension of a driver's license is not part of the criminal penalty resulting from a DUI conviction but is civil in nature.
Commonwealth Department of Public Safety v. Palmisano, Ky., 444 S.W.2d 129 (1969). The duties of a local prosecutor, as enumerated in KRS 15.725(1) are to prosecute "all violations of criminal and penal laws" in his jurisdiction. (Emphasis added). It is not within his duties to impose civil penalties, although civil penalties may result from violations of criminal law. The revocation or suspension under an implied consent statute is imposed regardless of the outcome of a criminal proceeding for driving under the influence based on the same incident. See
State v. Hanson, Minn., 356 N.W.2d 689 (1984) and
Mackler v. Alexis, Ca.App., 130 Cal.App.3d, 44, 181 Cal.Rptr. 613 (1982).
A local prosecutor has no authority to bind the Transportation Cabinet in a manner which would circumvent the enforcement of KRS 186.565. In resolving a similar question, the Supreme Court of Arizona held that revocation of a driver's license for driving while intoxicated is a civil penalty rather than a criminal sanction and that the prosecutor may not waive the license revocation in a plea bargain without the permission of the Cabinet.
Loughran v. Superior Court of Maricopa, Ariz., 699 P.2d 1287 (1989). As a general rule, Kentucky courts have held that a plea bargain offered by the prosecution and accepted by the accused, either by entering a plea of guilty or taking action to his detriment in reliance on the offer, is binding and enforceable against the
Commonwealth. Commonwealth v. Reyes, Ky., 764 S.W.2d 62 (1989). The position of the Transportation Cabinet can be likened to that of a judge in a plea bargain procedure. The acceptance or rejection of a plea agreement is ordinarily within the discretion of the court.
Couch v. Commonwealth, Ky., 528 S.W.2d 712 (1975). Since a prosecutor may only recommend a sentence in a criminal case, he has no authority to bind the cabinet with regard to the enforcement of an administrative civil penalty. Similarly, although a prosecutor may negotiate a plea with a DUI offender, the Cabinet is not bound to accept the agreement.
We are concerned about the the appearance of impropriety inherent when an arresting officer has signed a sworn affidavit and then later attempts to withdraw the affidavit in its entirety. We have been unable to find any authority which would permit a person to entirely withdraw a sworn statement from a public proceeding without at least some showing that the statement itself is inaccurate or otherwise needs to be corrected.
Due to the nature of a sworn affidavit, common sense dictates that another in-kind sworn statement would be needed to either correct a mistake or explain a statement within the original affidavit. Your letter reflects that the Cabinet has required that an officer may make a correction to a sworn affidavit only by making an additional sworn statement, verifying that an error was made. We believe that this is a sound procedure because, although courts allow the amendment of affidavits as well as other pleadings, a sworn affidavit normally may not be changed without further verification. In
Hyman, et al. v. Leathers, 168 Ga.App. 112, 308 S.E.2d 388 (1983), the Georgia Court of Appeals held that while affidavits can be altered to the same extent as ordinary pleadings, "[a]n affidavit cannot be enlarged or amended by adding other statements without verification. " Id. , S.E.2d at 391.
We caution that any material false statement, made under oath, which the affiant does not believe and which was made with the intent to mislead a public servant, could result in criminal prosecution for perjury in the second degree, as prohibited by KRS 523.030(1).
We believe that permitting the complete withdrawl of such statements would frustrate the legislative intent of KRS 186.565. In
Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125, 152 S.W.2d 962 (1941), the court held that all statutes are enacted with a special legislative purpose in mind and should be construed to accomplish that end rather than "rendering them nugatory." Id. , S.W.2d at 967. KRS 186.565 clearly requires the Cabinet to suspend or revoke the license of a person refusing a test for the presence of intoxicating substances upon receipt of the officer's sworn affidavit. As noted above, the civil penalty is imposed regardless of the outcome of a criminal proceeding arising out of the same incident. The intent of the legislature appears to be to provide a penalty for refusing to submit to a test. Statutory language which has a clear meaning must be narrowly construed.
Nickell v. Thomas, Ky.App., 665 S.W.2d 927 (1984). We believe that if the Cabinet were to permit the withdrawal of sworn statements in their entirety, the practice would frustrate the legislative intent of KRS 186.565. For this reason, we believe the statute must be read narrowly.
With regard to affidavits which contain actual mistakes of fact, we suggest that the Cabinet adopt an administrative regulation relating to the enforcement of KRS 186.565 which would provide greater direction to the Cabinet as to when the alteration or amendment of the original sworn statement should be permitted. Such a regulation would be authorized by KRS 186.400(1), which states, "The transportation cabinet may prescribe regulations for the enforcement of KRS 186.400 to 186.640 . . ."
Since we find no statutory authority which would permit the complete withdrawal of an affidavit submitted by a police officer under KRS 186.565, we believe the practice is prohibited. Powers of public officials are limited to those conferred expressly by a statute or which exist by a necessary and clear implication.
Blue Boar Cafeteria Co. v. Hackett, Ky., 227 S.W.2d 199 (1950). See also
Bruner v. Commonwealth, Ky., 40 S.W.2d 271 (1931). Consequently, neither the Cabinet, a prosecutor, nor a police officer is permitted to completely withdraw a sworn affidavit. We do not construe this to forbid an amendment to the affidavit to change a mistake, as this would be a power which exists "by a necessary and clear implication. "
In conclusion, we are of the opinion that once a peace officer submits a sworn affidavit to the Transportation Cabinet pursuant to KRS 186.565, stating that a person suspected of driving under the influence of intoxicants has refused to submit to a test to determine the presence of intoxicating substances, the Cabinet acquires jurisdiction over the proceeding as it pertains to the operator's license revocation. For this reason, a plea bargain agreement that the affidavit be withdrawn reached by a local prosecutor and the defendant has no binding effect on the Transportation Cabinet with regard to proceedings conducted under KRS 186.565.