Opinion
June 23, 1972. Rehearing Denied October 6, 1972.
Appeal from the Circuit Court, Daviess County, Dan M. Griffith, J.
Mary Jo Arterberry, Frankfort, for appellant.
Robert M. Short, Owensboro, for appellee.
Thomas Hickman Hanson was arrested by an Owensboro police officer for operating a motor vehicle while under the influence of intoxicating beverages. The officer filed an affidavit with the Department of Public Safety, stating that Hanson was driving a motor vehicle while intoxicated and upon request by the officer had refused to submit to a blood-alcohol test. KRS 186.565(3). The Department revoked Hanson's driver's license. Hanson requested an administrative hearing. At the hearing, the Department sustained the revocation. Hanson appealed to the Daviess Circuit Court. That court held the Department's ruling to be contrary to the evidence, therefore arbitrary and capricious, and restored Hanson's license. The Department appeals. We affirm.
Hanson contends that he was extremely inebriated and was incapable of refusing to take the blood-alcohol test. The Department claims that Hanson was not in "a condition rendering him incapable of refusal." KRS 186.565(2).
The evidence as to the "request" and "refusal" in the instant case is about on all fours with the evidence in Commonwealth of Kentucky, Department of Public Safety v. Hayden, Ky., 484 S.W.2d 97, this date decided.
On the basis of our reasoning in the Hayden case, the judgment of the Daviess Circuit Court is affirmed.
EDWARD P. HILL, Jr., MILLIKEN, OSBORNE, PALMORE and REED, JJ., concur.
Separate concurring opinion by OSBORNE, J.
I concur in the results reached by the majority in this case for the same reasons set out in my concurring opinion in Commonwealth, Department of Public Safety v. Hayden, Ky., 484 S.W.2d 97, decided on this date.
"I dissent as I believe the explanation and requests of the officers complied with the rationale of Craig v. Commonwealth, Dept. of Public Safety, Ky., 471 S.W.2d 11 (1971)."