Request By:
The Honorable J. R. Gray
House of Representatives
Sixth House District
Route Three
Benton, Kentucky 42025
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This is in reply to your request that this Office render an Opinion as to whether KRS 432.570 proscribes either the possession or use of a radar detecting device by the general motoring public. Such a device, marketed by companies under various brand names such as Bearfinder, Escort, Fuzzbuster, Hawk Eye and Super Snooper, would seem to have no legitimate purpose except to avoid citation for speeding. Apparently enough people are sufficiently inclined to avoid a speeding citation by purchasing radar detectors so as to turn the manufacture of these devices into one of the most tumultuous growth industries in this country. The known purpose of police radar is to monitor and regulate the speed of motor vehicles. This purpose can be thwarted by the use of radar detectors. 1
KRS 432.570 is pesky, the constant source of confusion and outcry as to its application. Why it has not been tested at the appellate levels, either by certification of the law or for alleged violation of the due process clause because of over breadth or vagueness, is unexplainable. Indeed it merits such testing.
You indicate that it has been called to your attention that the state police are confiscating radar detection devices from motorists and that some motorists have paid fines in addition to forfeiting this expensive equipment which is overtly marketed throughout this Commonwealth. You state that the confiscation of the devices and fines levied have been based upon the theory that "radar speed computer devices used by policemen are in fact a radar transmitter and that radar detection devices used by motorists, are in fact a radar receiver." Further you state in the text of your letter that "the theory advanced also embraces the idea that radar detection devices 'intercept' the transmission of radio messages by police, which seems equally absurd and ridiculous when considering the normal conditions of intercept as: (1) to stop or interrupt the progress or course of; (2) prevent, hinder; (3) to interrupt communication or connection with." You thus pose the issue to us as follows:
Can a policeman legally confiscate a radar detection device and issue a citation to a motorist who possesses such a device?
We begin our somewhat lengthy discussion by focusing on the troublesome language of the statute which is pertinent to your inquiry. KRS 432.570(1) reads:
It shall be unlawful for any person. . . to have in his or her possession, or in an automobile or other vehicle, or to equip or install in or on any automobile or other vehicle, any mobile radio set or apparatus capable of receiving or transmitting radio or other messages or signals within the wave length or channel . . . allocated by the Federal Communications Commission . . . for the purpose of police radios, or which may in any way intercept or interfere with the transmission of radio messages by any police or other peace officers. . . .
This language, in its pristine form, can be traced to Chapter 66 (House Bill 151) of the 1942 Kentucky Acts. It is of paramount significance to note that the above quoted language is identical to that enacted in 1942. Indeed there have been other interval revisions enacted since the statute's inception but these amendments have not affected the operative language being considered in this Opinion.
Our first determination must be whether a radar detection device is encompassed within the phrase ". . . mobile radio set or apparatus capable of receiving or transmitting radio or other messages or signals within the wave length or channel . . . allocated by the FCC . . . for the purpose of police radios. . . ."
We suspect that the Kentucky Legislature was not contemplating the concept of radar when it enacted KRS 432.570 in 1942, the spirit and intent of which was directed at prohibiting the detection or monitoring of police transmissions, conducted over conventional two-way radio frequencies. Indeed it was not until
Honeycutt v. Commonwealth, Ky., 408 S.W.2d 421 (1966), that radar evidence was deemed admissible for purposes of a speeding violation. See also Annot., 47 ALR 3d 822 (1973).
The problem, as we see it, is the fact that this operative legislation has been allowed to remain essentially unchanged, thereby obfuscating the legislative intent to encompass technological advances not contemplated by the original enactment. From a scientific standpoint, we have been informed that KRS 432.570(1) may be broad enough to include radar detection devices. 2
Based upon scientific communication principles, a good argument could be made that KRS 432.570 (1) pertains to radar detection devices because they are apparatus capable of receiving a signal transmitted on the wave length licensed to the Kentucky State Police by the FCC.
The question now arises whether the broad language originally enacted can take on (what we term as the chameleon effect) technological advancements not contemplated. In Sutherland, Statutory Construction, Volume 2 (3rd Ed.) § 5102 at p. 510, we find:
The rule that a statute will operate prospectively so as to include circumstances unknown at the time of enactment has been employed in the construction of penal as well as remedial statutes [footnote citing annotations omitted]. . . .
Because we are considering the application of a criminal statute, certain legal maxims must be assessed before we reach our ultimate determination.
While a criminal statute is to be strictly construed, it is not to be construed so strictly as to defeat the intentions of the legislature,
Barrett v. U.S., 423 U.S. 212, 218 (1976). On the other hand, a criminal statute is to be strictly construed against criminal liability,
U.S. v. Dalpraz, 527 F.2d 548 (6th Cir. 1978). The dilemma then is constructing and balancing a statute in favor of leniency toward the general public versus the interests of law enforcement efforts. 3
So as to bring this discussion to a merciful end, we think that we must place emphasis upon what the plain language of the statute says, devoid of a scientific analysis and without the use of a semantic scalpel or verbal calisthentics. We think that subsection (1) is vague because it does not give adequate warning that radar detection devices are proscribed.
In
Colten v. Kentucky, 407 U.S. 104, 110 (1972), we find guidance:
. . . The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. . . .
Thus, in the interest of fairness to the general motoring public, we hold that KRS 432.570 is impermissibly vague because it does not adequately connote or embrace the use of radar detectors within the existing prohibition protecting the effectiveness of essential police radio communications.
Footnotes
Footnotes
1 An informative article, entitled "Radar Detectors" can be found in the February 1979 issue of the periodical, Car and Driver, at pages 69-80.
2 We have sought technical expertise from Cpt. Felix Atwood, Communications Section, Kentucky State Police, who has explained that all forms of electro magnetic transmissions are essentially radiation of different frequencies. The type of frequency is what makes the difference when considering the radio frequency (RF) spectrum, which has been allocated in terms of licenses by the FCC to different users, whether they be commercial, industrial, entertainment or law enforcement. In contrast, the citizen band (CB) is a certain band of frequencies that the FCC has set aside for general public use without the requirement for the issuance of a license. Indeed, police radar ("radar" being an acronym meaning radio detecting and ranging) and police radio, are transmissions that are regulated and licensed by the FCC. The Kentucky State Police has obtained a license from the FCC to operate its "traffic radar devices" at 10.525 GHZ, and these devices emit a constant high frequency signal in the microwave range. They operate based on the Doppler principle. A narrow microwave beam is transmitted at a known frequency. If the beam strikes a stationary object, a part of it is reflected back at the same frequency. If it strikes an object moving away, the reflected wave is returned at a lower frequency. If the object is moving toward the transmitter, the reflected frequency is shifted up. The radar device picks up this reflected frequency, compares it against the original, and uses the difference to compute the speed of the reflecting object.
The radar detector is tuned to detect 10.525 GHZ by sensing that energy beam, amplifying it and triggering an alarm. The sensitivity of these detectors, as reflected by the price tag, is a matter of performance - how much warning they give. The better detectors have the ability to find the microwave beam around curves and over hills.
3 Of related significance is the fact that on June 8, 1978 the Campbell County District Court, Division I in Covington, Kentucky dismissed the case of Commonwealth v. Clark, Case No. 78-T-1246, holding that ". . . KRS 432.570 is vague as it relates to the charge against defendant and does not provide to the citizen a clear meaning of what conduct it intends to prohibit relating specifically to radar detecting devices. A reading of KRS 432.570 is unclear as to whether or not a radar detecting device is unlawful when used on his automobile."
Further, it is to be noted that during the 1978 Regular Session of the General Assembly, Senate Bill 66 was submitted to the State Government Committee. This Bill would have created a new section of KRS Chapter 189, making it a misdemeanor to operate on Kentucky highways a motor vehicle equipped with a radar detection device or to sell such devices.
The punishment was a fine of $25 to $100 or up to 10 days' confinement in jail or both and forfeiture of the device. Following its submission, it was never reported out of Committee.
Senate Bill 66 is almost identical to a Virginia offense found at Code § 46.1 - 198.1. On June 9, 1978 the Virginia Supreme Court considered this comparable legislation in an Opinion styled Crenshaw et al v. Commonwealth, reported at 219 va. 38. The Court reversed the misdemeanor charges brought against each of the four appellants because of the invalid presumption that mere presence of a radar detector, despite credible evidence that the device was inaccessible or unavailable for use, was violative of due process. Thereafter, the Virginia Legislature, during its 1978 Session, specifically amended its statute to preclude guilt when the device, at the time of the alleged offense, had no power source and was not readily accessible for use by the driver or any passenger in the vehicle.
Thus Virginia is the only jurisdiction that we know of that has specifically and unequivocally proscribed radar detection devices.