CATHERINE BROWNING v. TRANSPORTATION CABINET, DEPARTMENT OF VEHICLE REGULATION, COMMONWEALTH OF KENTUCKY; AND WILLIAM M. BUSHART, COMMISSIONER OF DEPARTMENT OF VEHICLE REGULATION
Annotate this Case
Download PDF
RENDERED:
JANUARY 14, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001706-MR
CATHERINE BROWNING
APPELLANT
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 03-CI-00176
v.
TRANSPORTATION CABINET,
DEPARTMENT OF VEHICLE REGULATION,
COMMONWEALTH OF KENTUCKY; AND
WILLIAM M. BUSHART, COMMISSIONER OF
DEPARTMENT OF VEHICLE REGULATION
APPELLEES
OPINION
REVERSING AMD REMANDING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND McANULTY, JUDGES.
DYCHE, JUDGE:
Catherine R. Browning, age 78, was stopped by a
police officer in a driving rainstorm at night; the officer’s
probable cause for the traffic stop was that Ms. Browning was
driving 20 miles per hour in a 55 miles per hour speed zone.
The officer filed an “affidavit for recertification,” which
recommended that she be “restricted to day driving if not
completely taken away.”
As a result, appellee Transportation Cabinet sent Ms.
Browning a form to be filled out by her physician after an
examination at her cost; the form was sent pursuant to KRS
186.444 and 186.570(1)(c) to help the Cabinet determine if Ms.
Browning had a “physical or mental disability which may affect
or limit a person’s ability to safely operate a motor vehicle.”
Ms. Browning’s physician filed the required report,
indicating that her driving abilities were “OK—daytime driving
only.”
Apparently not deterred by a result in Ms. Browning’s
favor, the Cabinet then ordered her to take a road test of her
driving abilities, purportedly (though not substantiated) at the
recommendation of the Medical Review Board.
Ms. Browning failed
three road tests, and, following a hearing (the true nature of
which is still in dispute), the Cabinet suspended her driving
privileges.
She filed this action in the Lincoln Circuit Court
contesting the suspension, and that court dismissed the action
for her failure to exhaust her administrative remedies prior to
filing the action.
She now appeals.
The administrative procedure for the suspension of
driving privileges due to physical or mental infirmity is set
out in the above statutes and in 601 KAR 13:090 and 601 KAR
13:100.
Sections 3(1)(a) and (b) of the former regulation
-2-
provide for two kinds of hearings available to a licensee if the
medical review board recommends any limitations on the
licensee’s driving privilege:
an informal hearing before the
board; and an appeal to the board for a formal administrative
hearing pursuant
to KRS Chapter 13B.
The problem herein is that the hearing conducted on
May 22, 2003, relating to Ms. Browning’s license was not clearly
identified as either of those options.
As a matter of fact, the
Cabinet has taken contradictory positions on whether the hearing
was an informal hearing or an actual KRS 13B hearing.
If the hearing was a formal KRS 13B hearing as the
Cabinet argued in a pleading filed with the trial court on June
27, 2003, then the trial court was in error by ruling that she
had failed to exhaust her administrative remedies.
The record
would seem to support this result; the March 18, 2003 “Summary”
signed by the hearing examiner refers to an informal hearing on
March 7, 2003, and the scheduling of a formal hearing, which was
then held on May 23.
Even if the hearing was an informal hearing, as the
Cabinet now insists, the verbal notice of her appeal rights to a
formal KRS 13B hearing given Ms. Browning at the conclusion of
the informal hearing was inadequate under the regulations.
KAR 13:090(3) provides that
-3-
601
(8) Within ten (10) working days after the
[informal] hearing, the commissioner shall
issue a decision which shall be promptly
forwarded to the petitioner along with the
notice required pursuant to subsection (9)
of this section.
(9) The petitioner shall be informed of his
right to an administrative hearing pursuant
to the provisions of KRS 13B.
There is nothing in the record to indicate that the hearing
officer’s decision following the informal hearing was
accompanied by the notice of right to hearing required by the
regulation.
The order of the Lincoln Circuit Court is therefore
reversed, and this matter is remanded for full consideration of
Ms. Browning’s complaint and cause of action.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Richard Clay
Danville, Kentucky
W. David Shearer, Jr.
Christopher G. Newell
W. David Shearer, Jr., P.S.C.
Louisville, Kentucky
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
