Request By:
Mr. David G. Mason
Henry County Attorney
Main Street
New Castle, Kentucky 40050
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request a formal opinion on this question: May the sheriff serve a subpoena by mail?
CR 45.03 reads:
"A subpoena may be served by any officer by whom a summons might be served. It may also be served by any person over eighteen years of age, and his affidavit indorsed thereon shall be proof of service or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed."
Under the rule the sheriff can serve a subpoena by: (1) delivering a copy to the person to whom it is directed, or (2) by offering to deliver a copy thereof to the person to whom it is directed. The new rule follows substantially § 532 of the Old Civil Code: "The service of a subpoena is made by showing the original and delivering a copy or a ticket containing the substance thereof to the witness."
It is written in 97 C.J.S., Witnesses, § 23, p.p. 374-375, that "The service of a subpoena must in all cases be personal . . . . Service of a subpoena is ordinarily to be made by reading and showing the original subpoena to the witness, and delivering to him personally a copy or ticket containing the substance of the subpoena; but a witness cannot complain that service of a subpoena on him was insufficient, where its contents were made known to him in a general way, and it was within his sight, and tendered to him, and he refused to accept it or to remain until it could be read to him." (Emphasis added).
It is our opinion that CR 45.03 requires the sheriff to serve a subpoena through personal confrontation with the person to whom it is directed. And in the physical presence of the person to whom it is directed the sheriff can serve the subpoena by either delivering a copy thereof to such person or offering to deliver a copy thereof after the sheriff indicates to him the general nature of the subpoena.
We conclude that the sheriff cannot legally serve a subpoena by mail.
Your next question reads:
"On a criminal charge in district court, where a summons is issued, may the sheriff serve the same by mail? "
RCr 2.10 reads:
"(1) A warrant of arrest may be executed by any peace officer. The officer need not have the warrant in his possession at the time of arrest, but in that event he shall inform the defendant of the offense charged and the fact that a warrant has been issued, and upon request show the warrant, or a copy of it, to the defendant as soon as possible.
"(2) A summons may be served by any peace officer. It shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
"(3) A summons to a corporation shall be served by delivering a copy to any officer or managing or general agent or to any other agent authorized by appointment or by law to receive process."
Under RCr 2.10 a summons in a criminal case cannot be served by mail. Subsections (2) and (3) state explicitly the manner of service required as to individuals and corporations. Cf. CR 4.01, which expressly provides for service of a civil summons by certified mail.