Request By:
Mr. Bruce K. Davis
Assistant Commissioner
Bureau of Vehicle Regulation
210 State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General on two questions pertaining to KRS 186.570(1)(h) which reads as follows:
"(1) The department or its agent designated in writing for that purpose may deny any person a license or may suspend the license of any person, or, in the case of a non-resident, withdraw the privilege of operating a motor vehicle in this state, subject to a hearing and with or without receiving a record of conviction of that person of a crime, whenever the department has reason to believe that:
(h) that person has failed to appear pursuant to a citation or summons issued by a law enforcement officer of this commonwealth or any other jurisdiction."
Your first question is "Do the terms of KRS 186.570(1)(h) require the suspension of the Kentucky driving privilege if a person fails to respond to a citation for a non-traffic violation?"
To fully answer your question we must first point out that KRS 431.015(1) provides:
"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."
This statute makes possible the issuing of a citation for a misdemeanor which is not a traffic violation. A question, therefore, arises as to whether a person who fails to appear in response to a citation on a misdemeanor charge which is not a traffic violation can have his driving privileges suspended by the Department because of such failure to appear. Our opinion is negative.
Although KRS 186.570(1)(h) does not specify that the citation or summons must be for a traffic violation, we believe that the context of the provision implies that the citation must have been for a traffic violation. All the other provisions of this subsection, (a) thru (g), expressly deal with traffic violations. It would require grossly excessive literalism to interpret (h) to apply to all citations, including those which are for non-traffic related misdemeanors. We believe that the statute as a whole indicates that the legislative intent is for (h) to apply to only traffic offenses. For example, we do not believe that a person who is issued a citation charging cruelty to animals under KRS 525.130, a Class A misdemeanor, and who fails to appear as provided in the citation, is subject to having his drivers license suspended by the Department of Transportation for his failure to appear on that citation.
Your second question concerns the problem being experienced by the Division of Driver Licensing when a person who has been convicted of a traffic offense in a district court, and, being unable to pay the fine assessed against him is granted deferred paying by the district judge and then fails to make the deferred payment of his fine as provided by the judge's order.
You state that clerks from some of the district courts are reporting this failure to the Division of Driver Licensing for suspension action. The question is "Does an initial appearance on a citation satisfy the requirements of KRS 186.570(1)(h) or is the Division of Driver Licensing required to take action after a defendant fails to satisfy the court order for deferred payment of a fine? "
In order to clarify the problem we called the office of one district judge and were informed that when a person who appears in court and is guilty of a traffic violation is unable to pay the fine which the judge proposes to levy, the judge continues the case to a later date with the order that the person shall appear on said date and pay the fine. If the person fails to appear on the date to which the case was continued, the judge issues a show cause order summoning the person back to court for the payment of the fine within 10 days.
Under such circumstances, we believe that a person's failure to appear at the date set by the continuance brings the case under KRS 186.570(1)(h) even though the person appeared as directed by the citation. When the case is continued the defendant is under a citation or summons to appear on the continued date. Also, if a person fails to respond to the show cause order, he has again "failed to appear pursuant to a citation or summons. "
If the district judge does not continue the case on the docket, but simply defers payment of the fine, we believe it will be necessary to use some other means to enforce the payment of the fine rather than suspension of the drivers license. But the initial appearance on the citation will not satisfy the requirements of KRS 186.570(1)(h) if the district judge continues the case on the docket with an order for the defendant to appear at a later definite date. Failure to appear according to the order will be grounds for the Department of Transportation to suspend the drivers license of the defendant after a hearing.