Request By:
Capt. William G. Mullins
Office of the Commissioner
Kentucky State Police
State Office Building
Frankfort, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: James L. Dickinson, Assistant Attorney General
This letter is in response to your inquiry of May 30, 1979 in which you request an opinion of this office concerning the service of warrants of arrest by Kentucky State Police on National Guard members who fail to attend required drills. In your letter you comment that you do not believe that the provisions of KRS 35.045(2) conform to the requirements set forth in RCr 2.04 and RCr 2.06.
As noted in your letter, KRS 35.035(2) authorizes peace officers to apprehend persons upon reasonable belief that an offense has been committed and that the person apprehended committed it. KRS 35.461 states:
"Absence without leave. -- Any person subject to this code shall be punished as a court-martial directs when he, without authority:
"(1) Fails to go to his appointed place of duty at the time prescribed; or
"(2) Goes from that place; or
"(3) Absents himself or remains absent from his unit, organization or place of duty at which he is required to be at the time prescribed. "
Failure to attend an assigned drill is clearly punishable under KRS 35.461. Thus, an officer could properly order the arrest of an individual who fails to attend drill.
This office is also of the opinion that there is no conflict between RCr 2.04 and the provisions contained in Chapter 35. RCr 2.04 provides in part:
"If from an examination of the complaint it appears to the magistrate ( or other officer authorized to issue a warrant of arrest ) that there is probable cause to believe that an offense has been committed and that the defendant committed it, he shall issue a warrant for the arrest of the defendant." (Emphasis added.)
Under the military code, the equivalent of a magistrate would be the commanding officer authorized under KRS 35.045(2) to order the apprehension of an individual who has violated the provisions of the code. Consequently, this officer has the authority under KRS 35.035(2) to direct members of the Kentucky State Police to serve warrants of arrest upon an individual where the commanding officer has reason to believe that the individual has committed an offense.
I hope that this letter answers your questions. If you need further information, please do not hesitate to contact this office.