Request By:
Mr. William G. Mullins
Legal Counsel
Kentucky State Police
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
You have requested the Attorney General to review OAG 79-395 which discusses the question of when a police officer may make an arrest for a traffic violation. You state your concern that said opinion does not appear to give proper consideration to the procedures authorized by KRS 431.015 as amended in 1978, and which reads as follows:
"(1) A peace officer may issue a citation instead of making an arrest for a misdemeanor or a violation 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.
"(2) If the defendant fails to appear in response to the citation, or if there are reasonable grounds to believe that he will not appear, a complaint may be made before a judge and a warrant shall issue.
"(3) When a physical arrest is made and a citation is issued in relation to the same offense the officer shall mark on the citation, in the space specified for court appearance date, the word 'ARRESTED' in lieu of the date of court appearance."
We understand that it is your view that since KRS 431.015(1) was amended to include the word "violation" a peace officer may arrest a person for any traffic violation committed in his presence and that you consider it an oversight that KRS 431.005 was not amended also. It still reads as follows:
"(1) A peace officer may make an arrest in obedience to a warrant, or without a warrant when a felony or misdemeanor is committed in his presence or when he has reasonable grounds to believe that the person being arrested has committed a felony.
"(2) A private person may make an arrest when a felony has been committed in fact and he has reasonable grounds to believe that the person being arrested has committed it."
In OAG 79-395 we gave decisive significance to the fact that the Penal Code created a new type of offense called a "violation" which is less than a misdemeanor and which carries only a fine as a penalty. Upon reconsideration we believe that we were mistaken to give such significance to that fact in interpreting KRS 431.005. We now believe that as far as KRS 431.005 is concerned there are still only two types of public offenses, felonies and misdemeanors, and that even though the Penal Code designates certain offenses as "violations" the law of arrest applies to the so-called violations the same as misdemeanors. The traditional conception of "misdemeanor" has been that any offense which is not a felony is a misdemeanor. In
Stratton v. Commonwealth, Ky., 263 S.W.2d 99 (1953), the Court said:
"A felony is an offense for which the punishment is death or confinement in the penitentiary and all other public offenses are misdemeanors. "
We do not believe that it was the legislative intent when it enacted the Penal Code to change the law of arrest and to preclude a peace officer from making an arrest at his discretion for an offense committed in his presence which the Penal Code designates only as a violation. As provided by KRS 431.015, the officer should exercise his discretion as to whether to issue a citation or make an arrest on the basis of whether there are reasonable grounds to believe that the person being cited will appear to answer the charge. The officer is also free to exercise his discretion as to whether an arrest is necessary for the protection of the safety and welfare of the offender and of the public. On this basis an arrest is always required for an offense such as operating a motor vehicle while under the influence of intoxicating beverages or drugs.
In summary, it is our opinion that there are only two types of offenses as far as the law of arrest is concerned, felonies and misdemeanors, and that a peace officer may make an arrest at his discretion for a misdemeanor or violation committed in his presence.
OAG 79-395 is hereby withdrawn.