Request By:
Mr. Gilmore Phelps
Pulaski County Sheriff
Courthouse
Somerset, Kentucky 42501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In reference to traffic violations, you ask whether your office is entitled to the arrest fee of $7.00 where your deputy makes a physical arrest and then cites the subject to court. KRS 431.015 reads:
"(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor committed in his presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
"(2) If the defendant fails to appear in response to the citation, or if there are reasonable grounds to believe that he will not appear, a complaint may be made before a judge and a warrant shall issue."
The sheriff can collect the arrest fee only where he, or a deputy, arrests the defendant and takes him to the appropriate judge for bail and further processing. Where the arrest is only for a short period and is followed by issuing a citation, the arrest fee cannot be earned. The case in the situation you mentioned is framed around the citation. KRS 64.090, providing the "arrest fee", is framed around a "physical arrest" and taking defendant into custody and before the court. KRS 431.015 was designed to eliminate arrests in mere traffic violations and other minor misdemeanors. Suppose a person is merely speeding and then is arrested. The citizens of our state do not favor such arrests. A citation is sufficient, and that is precisely why the General Assembly passed that law [KRS 431.015]. I am sure you would not want to make an arrest just because you wanted the fee. If you did, you would be violating the public policy established by the citation statute. Of course a citation is not a court process. It is only issued by the peace officer who gives it. Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961). If the defendant who is given a citation does not respond to the court, the court can then issue a warrant of arrest. As Mr. Murrell in his "Kentucky Criminal Practice", § 3.08, points out, neither the statute nor the case law have established guidelines by which the peace officer must determine whether to issue a citation or take the defendant into custody. Thus the peace officer should exercise his sound judgment in each case as to whether the misdemeanant will probably respond to the citation or whether a physical arrest and taking into custody is necessary.
We suggest that the sheriffs should go to the legislature and ask them to amend KRS 64.090 so as to provide the $7.00 fee when either an arrest is made or a citation is given in connection with a misdemeanor.