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Whitehouse v. Commonwealth2/28/2003
monwealth is not obligated to produce evidence to sustain the rationality of statutory classifications. Stephens [v. State Farm Mutual Auto Insurance Co., Ky., 894 S.W.2d 624 (1995)]. We are of the opinion that Cornelison, who does in fact have the burden of demonstrating the arbitrariness of the statute, has failed to do so. Just as the legislature has recently amended the statute to provide that an alcohol concentration of 0.08 or higher creates a presumption of intoxication, it has the authority to declare that a level of 0.18 or higher warrants increased penalties. Cornelison, 52 S.W.3d at 573.
In Cornelison, the appellant also made an equal protection argument, although the Court does not specify its basis. The Court likewise rejected this argument, pointing out that since driving an automobile is not a fundamental right and the statute does not negatively affect a suspect class, only a rational basis for the classification need be shown. The Court adjudged there was a rational basis for the 0.18 standard:
The 1998 amendment to KRS 189A.010(4)(c) was in response to the serious and growing societal problem of drunk driving . In amending KRS 189A.010(4)(c), the Legislature was obviously concerned not only with the danger to society created by repeat DUI offenders, but also about the level of intoxication of those drivers....
. . . There is nothing inherently unfair in treating the same class of multiple offenders differently based on their level of intoxication. Id. at 573-74.
As to Whitehouse's due process argument, the same rational basis analysis would apply. McCollum v. City of Berea, Ky. App., 53 S.W.3d 106 (2000). The Legislature has the discretion to single out alcohol from other intoxicating substances for penalty enhancement purposes if there is a rational basis therefor related to public health and welfare. See Cornelison, 52 S.W.3d at 573-74. It could be that the Legislature viewed higher alcohol concentration levels as more of a problem than other intoxicating substances or recognized the greater ability of law enforcement to measure alcohol concentration levels as opposed to levels of other intoxicating substances. Another explanation could be that from a practical standpoint, it would be nearly impossible to statutorily set enhancement levels for all other intoxicating substances.
With regard to his claim that the statute unfairly penalizes those drivers who voluntarily submit to a breath or blood alcohol test, we would note that the statutory scheme of KRS 189A does not encourage drivers to refuse to take blood or breath alcohol concentration tests. There are special penalties for such refusal in the form of loss of a driver's license. KRS 189A.105(1); KRS 189A.107.
For the reasons stated above, the order of the Marion Circuit Court is affirmed.
ALL CONCUR.
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