COMMONWEALTH of Kentucky, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Janies William BRENT, Appellee, 452 S.W.2d 819

DAVIS, Commissioner. The Department of Public Safety revoked the operator’s license of appellee for six months for his alleged refusal to submit to a chemical test to determine the alcoholic content of his blood. KRS 186.-565. The revocation was based on an affidavit furnished the Department by State Police Trooper Childers. KRS 186.-565(3). Appellee sought and was granted an administrative hearing, after which the order of revocation was sustained. KRS 186.565(4).

Appellee obtained judicial review as prescribed by KRS 186.565(5), and the circuit court overturned the Department’s order of revocation on the ground that the Department’s finding that appellee refused the test was not supported by “sufficient substantial evidence.” The Department has appealed that ruling. It appears that appellee was involved in a two-car accident on November 7, 1968, on U. S. Highway 42, about three miles west of Sligo. The adverse driver was Paul Kunze. The accident occurred at some unspecified time prior to 6 p. m.

State Police Trooper Howard (not the officer who forwarded the affidavit to the Department pursuant to KRS 186.565(3)) was called to the scene, arriving there at some time not shown by the transcript. Since the site was outside the territory assigned to Trooper Howard, he summoned Trooper Childers, who first arrived about 6 p. m. Trooper Childers did not know or undertake to say how much time had elapsed between the time of the accident and his arrival. Since Trooper Howard had not observed appellee driving a car, he issued a citation charging him with being drunk in a public place.

However, Kunze proceeded to LaGrange and made affidavit before the Oldham County judge charging appellee with operating a motor vehicle while under the influence of intoxicating liquor, as denounced by KRS 189.520. A warrant was duly issued by the judge, based on Kunze’s affidavit. Trooper Childers, who had brought appellee to LaGrange from the accident scene (some ten miles away), served the warrant on ap-pellee and requested him to submit to the chemical test for alcoholic content of blood, as prescribed in KRS 186.565. Appellee at first indicated that he would submit to the test, but then refused it.

Trooper Childers testified that it was “approximately an hour and a half, maybe a little more” from the estimated time of the accident until he requested appellee to submit to the test. As noted, the Department revoked appellee’s operator’s license for six months upon its receipt of the sworn statement of Trooper Childers. Appellee did not testify at the administrative hearing.

Officer Childers related that appellee based his refusal to submit to the test on the ground that he “wasn’t going to be treated like a criminal.” There was substantial evidence that ap-pellee refused to submit to the test — in fact, there was no evidence to the contrary. The circuit court’s finding to the contrary cannot be sustained unless it may be said, as a matter of law, that appellee had a valid legal reason to refuse the test. The only reason advanced by appellee is the lapse of time between the incident of driving a motor vehicle and the request for submission to the test. In 34 Ky.

Law Journal, 250 et seq. (May 1946), appears an extensive

article by Dr. Henry W. Newman entitled “Proof of Alcoholic Intoxication.” The

article points out that “Blood is without a doubt the material of choice for alcohol analysis.” (Op. Cit., p. 265). In McCormick on Evidence,

Section 176, pages 375-377, appears a treatment of the acceptance by the courts of chemical tests as proof of intoxication. McCormick notes: “This is a field where the courts, despite formidable conflicts in expert opinion, have been persuaded rather quickly to use the results of scientific experimentation.” Id. at page 375. In Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812 (1952), the defendant was charged with driving an automobile while drunk. He was involved in an accident at 3:30 p. m. At 5 p. m., an hour and a half later, he voluntarily submitted to a “Harger Breath-ometer” or “drunkometer” test.

The defendant contended that the results of the test should have been excluded, because the test was too remote in point of time to show alcoholic blood content at the time of the collision. In rejecting that contention, the Criminal Court of Appeals of Oklahoma noted in part: “This contention appears to us to be without merit on its face particularly in view of the evidence that the defendant offered no proof in support of the contention and, further in view of the fact that Dr. Beddo testified a human body will burn about ‘1/3 of an ounce of alcohol an hour, or about .015% of blood alcohol per hour’. Dr.

Beddo’s conclusion that the test being made at 5:00 P.M., and the defendant not having taken any alcohol from the time of the collision at 3:30 P.M., and the time the tests were made that the defendant would be more drunk at 3:30 P.M., than he was at 5:00 P.M., and no doubt this fact formed the basis for Dr. Beddo’s conclusion. This seems sound to us. Such being true, the longer the test was delayed the more favorable the situation would become for the subject. We believe this conclusion would be obvious.” Id. 239 P.2d at 820.

We regard the reasoning of the Oklahoma court as sound, at least as it pertains to the facts of the case at bar. We think a different result might well obtain if a subject refused a test requested a week or a month after the event, but that is not this case. The appellee did not offer proof that he had imbibed any alcoholic beverage after the driving incident. He asks the court to take cognizance that such might be the case; hence, the test would have been inaccurate. It seems to us that he should have predicated refusal of the test on that ground, if there were such a ground.

If the officer insisted on the test anyway, the appellee could have challenged its admissibility and its accuracy when and if it was offered in proof against him. However, the bare chance that intervening events may have affected the accuracy of the test, without any claim that any such thing happened, was no legal excuse for refusing the test in the present case. Cf. Stacy v. State, 228 Ark. 260, 306 S.W.2d 852 (1957), (test three hours later). See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. We observe that appellee has presented no challenge to the constitutionality of KRS 186.565.

We do not express any opinion in that respect. The judgment is reversed with directions to enter a new judgment sustaining the order of the Department of Public Safety. All concur.