Opinion
May 15, 1970.
Appeal from the Circuit Court, Oldham County, Coleman Wright, J.
Mary Jo Arterberry, Frankfort, for appellant.
No appearance for appellee.
The Department of Public Safety revoked the driving privileges of Horace Lindley Bell for a period of six months from the date of his refusal to submit to a chemical test on the occasion of his arrest on a charge of driving while under the influence of intoxicating beverages. (KRS 186.565). Bell requested an administrative hearing before the Department. This hearing was held and the Commissioner of Public Safety found as a result of the evidence adduced that the arresting officer had reasonable grounds to make the arrest and to make the request to Bell to take the test and that Bell refused the request. The revocation was upheld and Bell thereupon appealed to the circuit court. KRS 186.565(5). That court held that there "is not sufficient substantial evidence in this record to support the finding that said appellant refused to subject himself to such test." The revocation order was set aside. The Department appealed here.
Bell has filed no brief in this court. The Department's brief contains references to the transcript that it asserts certain sufficient substantial evidence to sustain the order of revocation. No question of the constitutionality of the statute was presented in the trial court.
RCA 1.260(c) (2) is one of the alternate dispositions of this appeal available when the appellee fails to file his brief in this court. We apply that provision in this case because the Department's brief reasonably appears to sustain a reversal of the judgment from which the appeal is prosecuted.
The judgment of the circuit court is reversed with direction to enter a new judgment sustaining the order of the Department of Public Safety from which the appeal was prosecuted.
EDWARD P. HILL, Jr., C.J., and MILLIKEN, OSBORNE, PALMORE and STEINFELD, JJ., concur.
NEIKIRK, J., not sitting.