KOHLER v. COMMONWEALTH TRANSPORTATION CABINET

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Court of Appeals of Kentucky.

Judd KOHLER, Appellant, v. COMMONWEALTH of Kentucky, TRANSPORTATION CABINET;  Commonwealth of Kentucky, Justice Cabinet;  and Honorable Robert E. Goebel, District Judge, Appellees.

No. 96-CA-0138-MR.

Decided: March 21, 1997

Before COMBS, DYCHE and EMBERTON, JJ. Richard T. Ford, Owensboro, for appellant. W. David Shearer, Jr., P.S.C., Louisville, for appellee Transportation Cabinet.

Appellant Judd Kohler was convicted of driving while under the influence of intoxicants (“DUI”) on May 21, 1991, and December 12, 1991.   Following an amendment to the DUI statute effective July 1, 1991, Kohler was again charged with such a violation.   He entered a plea of guilty to the charge on October 31, 1994;  by agreement of the Commonwealth, the conviction was denominated a “second offense.”   On November 22, 1994, the trial court entered an order purporting to direct appellee Transportation Cabinet, Division of Driver Licensing, to “treat this [the conviction] as a second offense because of the Botkin decision.”

The trial court's order referred to a non-final opinion in Botkin v. Commonwealth which held that convictions under the amended statute could not be enhanced due to prior convictions under the old law.   At the time the order was entered by the trial court, a petition for rehearing was pending in the Botkin case;  the petition was ultimately granted, resulting in a new opinion which allowed the use of “old law” convictions for enhancement purposes.  Botkin v. Commonwealth, Ky., 890 S.W.2d 292 (1994).

The Transportation Cabinet initiated this action in the Daviess Circuit Court seeking a Writ of Prohibition (CR 81) against the enforcement of the trial court's order.   Kohler intervened as real party in interest.   The matter was briefed, and the trial court granted the writ.   This appeal followed.   We affirm.

 Butler v. Groce, Ky., 880 S.W.2d 547 (1994), held that the district court has no discretion in determining the period of driver licensing revocation for violations of the DUI statutes.   It is clear from that case that the order of the Daviess District Court was void ab initio.   In addition, any reliance on a non-final opinion of an appellate court is misplaced.  CR 76.30(2);  SCR 1.030(8)(a), 1.040(5).

Appellant's second argument appears to us to be an exercise in rhetoric, without any application to the present case.   There is no allegation of lack of due process or arbitrariness in the handling of Kohler's driver's license;  and, as shown below, there are no double jeopardy implications herein.

 Kohler maintains that license suspension following conviction for DUI constitutes double jeopardy, or perhaps more precisely, double punishment.   We disagree.

License revocation is a noncriminal consequence of driving under the influence.   Revocation is not a punishment but rather a precautionary measure to protect the safety of the public.  Commonwealth v. Steiber, Ky., 697 S.W.2d 135 (1985).

Butler, 880 S.W.2d at 548.   See also, Judith E. Dayok, Administrative Driver's License Suspension:  A Remedial Tool That is Not in Jeopardy, 45 Am. U.L.Rev. 1151 (1996).

The order of the Daviess Circuit Court is affirmed.

DYCHE, Judge.

All concur.