Request By:
Mr. Bill McBee
State Representative
60th District
Legislative Research Commission
State Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter of April 2, 1979, you raised the question of when is a school bus driver justified in making a formal complaint of a traffic violation when a motorist passes a stopped school bus in violation of KRS 189.370, and the school bus driver is able only to record the license number of the vehicle without being able to see the driver.
The passing of a stopped school bus which is properly marked and has a proper signal in operation is not only a violation of the statute but is very dangerous to the school children who are entering or leaving the bus. The statutory penalty for violating KRS 189.370 is a fine of not more than $500 or imprisonment for not more than 6 months, or both. KRS 189.990(6).
You state your particular question as follows:
"I would like an opinion from your office as to what information is sufficient to justify issuance of an arrest warrant for this violation, so that the warrant cannot be thrown out of court if challenged. Is the license number and description of the vehicles sufficient; or must the bus driver be able to identify the driver of that vehicle?"
Usually an arrest or a citation for a traffic violation is made by a peace officer who has observed the violation. However, any person may file a sworn complaint stating the essential facts constituting the offense charged. RCr 2.02. The complaint must be signed before a judge or other officer authorized to issue a warrant of arrest.
When a school bus driver has seen a vehicle pass a stopped school bus loading or unloading children, has noted the license number of the vehicle, and has ascertained the name of the registered owner, we believe that he has sufficient information to justify making a complaint before a judge against the registered owner and that the complaint should not be dismissed without a trial. However, unless the prosecution has obtained additional evidence, either direct or circumstantial, identifying the driver of the vehicle at the time of the violation, the court will probably dismiss the case without requiring the defendant to make any defense. In a nut shell, the problem is one of proof and the burden of proof is always on the prosecution. There is no legal presumption that the owner of the vehicle was driving it at the time of the violation unless a presumption is created by statute or ordinance. There is no such presumption in KRS 189.370 or any other traffic statute and, therefore, it is always necessary to prove the identity of the violator.
In Commonwealth v. Kroger, 276 Ky. 20, 122 S.W.2d 1006 (1938), an ordinance of the City of Newport which created a prima facie presumption that a parking violation was committed by or with the authority or permission of the owner of the vehicle, the Court said:
"It is now well settled that it is competent for legislative bodies to prescribe by their enactments that a certain state of facts shall constitute a presumption of the principal fact, and to thereby cast the burden of overcoming that presumption on the adverse party, even a defendant in a criminal prosecution (citations omitted) but it is equally well settled that such enacted presumption may be given only a prima facie effect and not a conclusive one so as to bar the opposing litigant or the defendant in a criminal or penal action from the right to rebut it. It is, therefore, incompetent for legislative bodies to prescribe for a conclusive presumption."
In Marcum v. Commonwealth, Ky., 483 S.W.2d 122 (1972), the above language from the Kroger case was quoted with approval. The Marcum opinion also includes the following on page 124:
"The legislature has control over the rules of evidence and may enact laws declaring that upon proof of one fact another fact may be inferred, thus creating a statutory presumption.
"As in the case of non-statutory presumptions and inferences, the presumed fact cannot be accepted as established until it is proved that the initial fact from which it is presumed or inferred does exist.
"A statute making one fact presumptive or primafacie evidence of another is constitutional if the facts warrant the application of the rule of (1) rational relationship or (2) comparative convenience. Under the first, the statutory presumption is held constitutional if in the experience of mankind there is a natural and rational relationship between the proved fact and the presumed fact so that in the ordinary experience of mankind the presumed fact would exist if the proved fact existed. Under the second, the statutory presumption is constitutional if (a) the defendant has more convenient access to proof which would overcome the presumed fact than the prosecution would have to prove the presumed fact, and (b) the placing upon the defendant of the burden of overcoming the presumption does not subject him to an unfair burden or hardship." 1 Wharton's Criminal Evidence, 12th Ed. §§ 90, 91.
The purpose of these lengthy quotes of legal authorities is to show that the legislature could amend the traffic statutes to create a rebuttable presumption that a vehicle which is observed violating a traffic law is being operated by the owner. The burden of proceeding would then shift to the owner of the vehicle to prove that at the time of the violation the vehicle was being operated by another person. An example of a statute which creates such a presumption is KRS 514.110 pertaining to possession of stolen property. Subsection (2) provides: "The possession by any person of any recently stolen movable property shall be primafacie evidence that such person knew such property was stolen. " When there is proof that the property in possession is stolen, the burden falls upon the defendant to prove that he did not know the property was stolen.
In summary, there is no statutory presumption that a vehicle is being operated by its owner when it is observed committing a traffic violation. There must, therefore, be some evidence, either direct or circumstantial, to prove that the vehicle at the time of the violation was being operated by the registered owner if the owner is to be convicted of the violation. If evidence can be obtained that the vehicle at the time of the violation was being operated by a particular member of the owner's family, an employee, or a guest of the owner, the complaint can be made against the person which evidence indicates was the driver, and it will be for the court or jury to decide whether the evidence is sufficient to convict.