Commonwealth, Department of Public Safety v. Brent

OSBORNE, Judge

(concurring).

The implied consent statute (KRS 185.-565) was enacted to control the high-risk drinking driver with the objective of reducing death and destruction on the highways. Without question, the scientific community has produced numerous studies which display “the deleterious effects of alcohol consumption on a driver’s ability to perform driving tasks and demonstrating quantitatively the association of drinking drivers with accidents.” 54 A.B.A. 555, 1968.) Techniques were developed to determine blood-alcohol levels by chemical tests. The problem then was to assure that this data could be obtained by removing blood from the accused and introducing it as evidence in court. To assure use of this scientific technique our legislature enacted “implied consent” legislation. In general, these laws provide that anyone possessing a license and operating a vehicle on the state highway has given his consent to being tested for blood alcohol content should he ever be arrested for drunk driving. If the arrested driver refuses, a report of his refusal is made to the state licensing agency and his license may be suspended or revoked. Thus, implied consent, in essence, provides the state with a means of compelling submission to a blood-alcohol test.

This compulsion provides the opposite end of the equation. On one side we see the necessity of alleviating the hazardous problem of drunk drivers, and on the other is the invasion, or better yet, the evasion of our personal liberties by the state compelling a citizen to submit to a blood-alcohol test.

Loss of an operator’s license through suspension or revocation for operating a vehicle while intoxicated was possible prior to (and after) the implied consent law. With the enactment of the implied consent law, a new method of revocation was established — revocation for refusal to submit to the chemical test. This punishment is not based upon any adjudication of guilt, but simply upon the refusal to comply with the “request.” I am not convinced that “request” is a suitable word, although it is used throughout the statute, when, in actuality, it is an ultimatum or order.

Although the constitutionality and morality of the implied consent law is not argued, I harbor serious doubts. Although the United States Supreme Court has not passed on all aspects of it, it did in Schmerber v. Calif., 384 U.S. 757, 86 S.Ct. 1826 (1966), approve the concept of requiring motorists arrested for driving while intoxicated to submit to blood tests for the purpose of producing evidence of intoxication. Writing for the five-man majority in Schmerber, supra, Justice Brennan stated:

“We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth amendments to be free of unreasonable searches and seizures. It bears repeat*822ing, however, that we reach this judgment only on the facts of the present rec-cord. The integrity of an individual’s reason is a cherished value of our society ⅜ ⅝ ⅜ »

I heartily agree with the dissent in Schmerber as it is stated:

“In the first place it seems to me that the compulsory extraction of petitioner’s blood for analysis so that the person who analyzed it could give evidence to convict him had both a ‘testimonial’ and ‘communicative nature.’ * * * the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk. * * * It concedes (the majority), as it must so long as Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 stands, that the Fifth Amendment bars a state from compelling a person to produce papers that might tend to incriminate him. It is a strange hierarchy of values that allows a state to extract a human being’s blood to convict him of a crime because of the blood’s content but proscribes compelled production of his lifeless papers * *

It is my earnest belief that the privilege a citizen has against being compelled to give evidence which is self incriminating is a cherished cornerstone giving support to our personal liberties.

“To compel a person to submit to testing * * * in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege ‘is as broad as the mischief against which it seeks to guard.’ Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110, 1114, as cited in Schmerber v. Calif., 384 U.S. 757, 16 L. Ed.2d 908, 86 S.Ct. 1826.”

I regretfully have to concur with the majority that the finding of the circuit court is clearly erroneous within the meaning of CR 52.01, as it is contrary to the evidence presented. I also, with regret, must agree that under the present statute a driver’s license can be suspended pursuant to the possession of a valid warrant, regardless of the time that has expired since the warrant was issued. An examination of the transcript shows the weightlessness of the circuit court’s finding that “there is not sufficient evidence in this record to support the finding that said appellant (appellee herein) refused to subject himself to such test.”

Regretfully, I must concur with the result reached today under the facts and arguments waged in the instant case. I cannot reiterate strongly enough, however, that I concur because the constitutional argument was not presented.