Request By:
Captain Sam Tucker
Legal Advisor
Jefferson County Police Headquarters
600 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written that H.B. 66 [Ch. 309, 1980 regular session] seems to radically amend the law of arrest. It became effective July 15, 1980.
Question No. 1:
"May a peace officer make an arrest on any violation offense if he has reasonable grounds to believe the subject will not appear in court as KRS 431.015(2) attempts to authorize, or; does KRS 431.005 mean what it actually says, that a peace officer is not authorized to arrest for a violation offense except for those six offenses enumerated in KRS 431.005(1)(e)?"
A "violation" is defined in KRS 431.060(3) which subsection, as amended by Section 3 of the Act, reads:
"(3) Offenses punishable by a fine only or by any other penalty not cited herein, whether in combination with a fine or not, are violations."
KRS 431.005(1)(e), as amended by Section 1 of the Act, provides that "A peace officer may make an arrest: without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his presence."
KRS 431.015(2), as amended by Section 2 of the Act, reads:
"(2) A peace officer may issue a citation instead of making an arrest for a violation committed in his presence but may not make a physical arrest unless there are reasonable grounds to believe that the defendant, if a citation is issued, will not appear at the designated time or unless the offense charged is a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 committed in his presence." (Emphasis added).
Although KRS 431.005 had been considered, prior to the 1980 amendment, as the arrest statute, and KRS 431.015 had been considered the citation statute, the basic independent character of the two statutes, as involving their own fields of operation [one relating to arrest and one relating to a citation] has, in our opinion, been altered by this new legislation.
Under KRS 431.005(1)(e), as amended, a peace officer may make an arrest without a warrant when a violation of KRS 189.290, 189.393, 189.520, 189.580, 511.080, or 525.070 has been committed in his presence. No other condition is necessary. The description of the six statutes is shown as follows: StatuteNature of Violation189.290Reckless driving189.393Attempt to elude189.520Driving while intoxicated189.580Hit and run511.080Criminal Trespass III525.070Harassment
On the face of KRS 431.005(1)(b), (c), (d), and (e), the arrest without a warrant is designed to cover the major classifications of offenses, i.e., the felony, misdemeanor, and the violation. However, when you examine the penalties for the six offenses named in KRS 431.005(1)(e), you will find that three of the statutes involve a misdemeanor and three involve a violation, as defined above. The three violations are KRS 189.290 (reckless driving), 511.080 (trespass III), and 525.070 (harassment). Since KRS 431.005(1)(d) already provides that an arrest without a warrant may be effected when a misdemeanor has been committed in the officer's presence, the only thing that KRS 431.005(1)(e) really adds to the statute is that an arrest may be made without a warrant where the three named 'violations" of the six statutes are committed in the presence of the officer. To sum it up, when you consider KRS 431.005(1)(d) and (e) alone, an arrest without a warrant may be made for an infraction of any of the six named statutes committed in the presence of the officer, no other condition being necessary.
If we consider only KRS 431.005, there is no authority to make an arrest without a warrant for a "violation" [we are speaking of the technical classification] , other than those three mentioned in KRS 431.005(1)(e), committed in the officer's presence. However, H.B. 66, in KRS 431.015(2), extended the authority to effect an arrest without a warrant for violations [other than the three contained in the above six statutes] committed in the officer's presence, if he has reasonable grounds to believe that the defendant, if a citation is issued, will not appear in court at the designated time to answer the charge.
However, under KRS 431.015, as amended, the peace officer may issue a citation, instead of making an arrest, for any violation or misdemeanor committed in his presence, if he has reasonable grounds to believe that the defendant will come into court at the time designated to answer the charge.
Our view is simply based on the stark juxtaposition of the two statutes in the bill [KRS 431.005 and 431.015] and on the reading of KRS 431.005(1)(d) and (e) and KRS 431.015(2) together under the doctrine of pari materia [same subject matter - here both involve the law of arrest] . In this manner we are construing them so as to harmonize and give effect to the provisions of each. Economy Optical Co. v. Kentucky Board of Opt. Exam., Ky., 310 S.W.2d 783 (1958) 784.
A citation is not a court process. Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961) 400. A citation, standing alone, does not automatically bring defendant before the court. A warrant of arrest is a court process; and an arrest without a warrant will get the defendant physically before the court. However, and notwithstanding the prior historical difference in nature between KRS 431.005 and 431.015, the language of H.B. 66 clearly indicates a legislative intent to insert in KRS 431.015 a provision relating to the law of arrest. Cf. Shamburger v. Duncan, Ky., 244 S.W.2d 759 (1951) 762, in which two entirely independent statutes were held to have no relational or amendatory effect on the other. There the court wrote that each statute is to be construed in its own field of operation. But Shamburger v. Duncan has no application here, in view of the explicit language of KRS 431.015(2), when read together with KRS 431.005(1)(e).
In enacting H.B. 66 it appears that the legislature intended to continue the general policy of issuing citations for minor offenses, but it imposes, at the same time, fewer conditions for arresting without a warrant as concerns the above six named statutes. The obvious reason for that policy lies in the nature of those six offenses. They are considered to be the most troublesome in connection with public safety on the highways of Kentucky.
Question No. 2:
"KRS 431.015(2) appears to require an arrest (or warning) if a person violates KRS 189.290, 189.393, 189.520, 511.080, or 525.070. Is there any way this can be interpreted to allow a citation for these offenses."
We have answered that under Question No. 1. An arrest without a warrant, as relates to the above six named statutes, is not mandatory. The statute says "may make an arrest. " (Emphasis added). The term "may" is generally permissive. See KRS 446.010(20). We also pointed out above that a peace officer may issue a citation for any misdemeanor or violation committed in his presence, if he has reasonable grounds to believe that the person being cited will appear in court to answer the charge at the designated time. "Any misdemeanor or violation" obviously includes the above six named statutes.
Question No. 3:
"Do the statutes which permit only a citation for certain offenses require that a person may only be cited for those offenses when he is arrested for a misdemeanor in conjunction with those citable only offenses with which he is charged."
It must be borne in mind that KRS 431.015, as amended in 1980, permits a peace officer to issue a citation for any misdemeanor or violation committed in his presence, where he has reasonable grounds to believe that the defendant will make himself amenable to the court's jurisdiction. He may arrest, without a warrant, for a misdemeanor committed in his presence. You say suppose a defendant in a motor vehicle chase commits a misdemeanor in the officer's presence [e.g., driving without a license under KRS Ch 186], but during the chase the defendant runs 4 stopsigns and travels 85 m.p.h. in a 55 m.p.h. zone. The latter offenses are violations not covered in the above mentioned six. Your question is whether the violations must be added to the physical arrest or whether citations must be given for those violations.
The arrest for the misdemeanor must be considered separate from the violations as a matter of charges. The officer may give citations for the violations. In such situation KRS 431.015(4), as amended, would apply. It provides that "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 place specified for court appearance date, the word 'arrested' in lieu of the date of court appearance." This insures that the court of jurisdiction may consider and process the misdemeanor and violations in the same time frame. As an alternative, the arrest could also cover the violations, provided that he has reasonable grounds to believe that the defendant, if a citation is issued, will not appear in court at the designated time to answer the violations charges.
You say that the new law of arrest has created a problem concerning juveniles. Senate Bill 309 [Ch. 280, 1980 session] is the new Kentucky Unified Juvenile Code; but it becomes effective July 1, 1982. KRS 208.110 [which will be repealed as of July 1, 1982, under S.B. 309, above] makes KRS 431.005, as the law of arrest, applicable to juveniles [under 18], except that taking a juvenile into custody under KRS 431.005 shall not be termed an arrest. Now, you raise question no. 4.
"Does this statute in conjunction with KRS 431.005 and 431.015 permit us to cite a child into juvenile court instead of placing him under physical arrest, and does KRS 431.005 fail to authorize the arrest of a child on a violation offense, or does KRS 208.010 et seq., permit or require the arrest of a juvenile for any offense."
In our opinion, the language in KRS 208.110(1) invokes the application of KRS 431.005 and the companion law, KRS 431.015. As relates to the application of arrest and citation, the conclusions above would apply to juveniles as well. Thus, under KRS 208.110(1), the arrest, without a warrant, of the juvenile for any offense committed in the officer's presence is not mandated by KRS Chapter 208.
The spirit of KRS 208.110(1) in making applicable the basic law of arrest and citation is to make practical provisions for bringing the juvenile before the juvenile court for proper disposition of statutory offenses, even though the fiction is entertained that it is not an arrest, where an arrest is made, in the usual sense. See KRS 208.192 and 208.130; and Locke v. Commonwealth, Ky., 503 S.W.2d 729 (1974). Within the framework of what we have said about the law of arrest and citation under the first three questions, the peace officer will also have to consider the objective of getting the juvenile before the juvenile court for processing of the complaint. The statute says the law relating to "circumstances under which a person may be arrested for a public offense" shall be applicable to children. (Emphasis added).
CONCLUSION
Based upon the foregoing analysis and authorities, it is our opinion that:
(1) A peace officer may make an arrest without a warrant for an infranction of any of the six statutes [named in KRS 431.005(1)(e)] committed in his presence, with no other condition. However, a physical arrest is not mandatory.
(2) A peace officer may make an arrest without a warrant for an infraction of any other "violation" [offense classification under KRS 431.060] committed in his presence, if he has reasonable grounds to believe that the defendant, if a citation is issued, will not appear in court at the designated time to answer the charge.
(3) A peace officer may issue a citation, instead of making an arrest, for an infraction of any "violation" [see KRS 431.060] or misdemeanor committed in his presence, if he has reasonable grounds to believe that the person cited will appear in court to answer the charge at the designated time.
(4) KRS 208.110(1) provides in effect that the law of arrest and citation shall apply to juveniles in getting them before the juvenile court.