Request By:
Mr. M. D. Harris
City Prosecuting Attorney
122 North Main Street
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
KRS 189.520(2) prohibits the driving of a motor vehicle while under the influence of intoxicating beverages or drugs impairing driving ability. Under KRS 189.990(9)(a), any person who violates subsection (2) of KRS 189.520 shall be fined, for the first offense, not less than $100 nor more than $500. No jail sentence is authorized for the first offense.
Your question: "If the fine is not paid, can the court assess more than 10 days in jail under KRS 534.060?" The answer is "no".
KRS 534.060(2)(b) provides that where the convicted defendant is in default in paying a fine, the court may, under certain circumstances described in the statute, order the defendant imprisoned for a term not to exceed one-third of the maximum authorized term of imprisonment for the offense committed, "if the fine was imposed for conviction of a misdemeanor. " (Emphasis added). If the "fine was imposed for conviction of a violation," the court can order him imprisoned for not longer than ten (10) days. (Emphasis added). KRS 534.060(2)(c). Under KRS 534.060(2)(a), the defendant may be imprisoned not to exceed six (6) months, if the fine was imposed for the conviction of a felony. The subsections relating to imprisonment for nonpayment of fines break down graphically:
(2)(a) for felony conviction.
(2)(b) for misdemeanor conviction.
(2)(c) for violation conviction.
The drunken driving provision does not involve a felony. So we eliminate subsection (2)(a).
KRS 532.020(4) states that any offense defined outside this code for which a law outside this code provides a sentence to a fine but no term of imprisonment shall be deemed a violation. However, KRS 500.080(10) and (17) specifically except traffic infractions from the terms "misdemeanor" and "violation" as used in the penal code. The effect, at this point, of the definitions in KRS 500.080 (10) and (17) is to remove KRS 189.520(2) from the operative provisions of KRS 532.020(4). Thus the old breakdown of "felonies" and "misdemeanors" would govern. KRS 431.060. Drunken driving would be a misdemeanor. It would not be a felony. It would not be a violation.
However, by the enactment of KRS 532.005 in 1976 [Acts 1976, Ch. 183, § 6], KRS 532.020(4) was made applicable to traffic offenses. KRS 532.005 provides in part that KRS Chapter 532 shall apply to all classes of crimes committed outside the provisions of the penal code. Thus KRS 532.020(4), in providing that any offense outside the penal code for which a law outside the code provides a sentence to a fine but no term of imprisonment shall be deemed a violation, applies to the drunken driving offense (first offense) . Since drunken driving (first offense) is a violation, it follows that under KRS 534.060(2), the defendant for default in payment of the fine cannot be imprisoned in excess of ten (10) days.