Request By:
Mr. Byron Lutz
East Kentucky Bureau
The Lexington Herald-Leader Co.
239 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are concerned as to whether or not the officer who gives a citation in a traffic violation situation is required to be in court at the time the person charged is scheduled to appear in court.
In at least one county you say you understand that the district judge has systematically ordered a dismissal of the traffic citations when the officer giving the citations failed to appear at the time [as stated in the citation] the person charged is scheduled to appear in court.
Question No. 1:
"Is it proper for a district judge to dismiss a traffic citation at the arraignment when the officer giving the citation is not present?"
KRS 431.015, as amended by H.B. 66 [Ch. 309, 1980 Acts] reads:
"(1) 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.
"(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.
"(3) 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.
"(4) 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. "
In many instances the only prosecuting witness is the officer who gave the citation.
Of course a citation does not confer jurisdiction of the person. The citation is not a court process, since it issues from the officer giving the citation, but not from the court. It does not have the legal efficacy of a warrant or summons. For the execution of a process to confer jurisdiction of the person it must have been issued from a court having jurisdiction of the subject matter. Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961) 400. Where only a citation has been issued and no complaint has been filed, and no summons or warrant has been issued, the district judge has no jurisdiction of the person until and unless the accused delivers himself to the district court in obedience to the citation, or enters his appearance by other means. This means that if the person receiving the citation comes physically into the district judge's court, the accused has by such act entered his appearance, and thus the court's jurisdiction of the person would attach. In addition, where only a citation has been given an accused, the defendant could enter his appearance in the district court by stating such fact to the court in writing delivered to the court, or he could have his attorney to enter his appearance.
Where, however, a citation is issued and the accused does not enter an appearance in any of the ways mentioned above, such defendant is not before the court; and the court simply does not have jurisdiction of the person.
In the situation you refer to only a citation was issued, indicating a day and time the person charged is required to be in district court. At the designated time the district judge looks at the citation, and he finds that the accused is not in court. The defendant has not entered an appearance of any kind. Then you say the district judge looks around and finds that the officer who gave the citation is not present. At this point he orders the "charge" dismissed.
Under the above factual circumstances, it is our opinion that since the court at that point has no jurisdiction of the person, the only effect of the court's action is simply to strike the citation from the citation docket. At this point no jeopardy has attached. See Graham v. Commonwealth, Ky., 562 S.W.2d 625 (1978) 627; United States v. Wilson, (U.S.C.A. -6, 1976) 534 F.2d 76, 78; and United States v. Martin Linen Supply Co., 430 U.S. 564, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). Justice Brennan, in the Supreme Court case just cited, wrote that "This state of jeopardy (double jeopardy) attaches when a jury is empaneled and sworn, or, in a bench trial, when the jury begins to receive evidence." Subsequently, the county attorney, at the instance of the complaining officer, can draw up a complaint and get a warrant issued. KRS 431.015(3). See RCr 2.02, 2.04, and 2.06. The point is that the district judge can take no judicial action unless and until the defendant is before the court.
In some counties we understand that the district court has an understanding with the peace officers and county attorney to come into court on the day or days established as "citing days" [appearance date for citations]. In that manner some of the defendants making an appearance on such days may be tried at the time. Such an administrative arrangement can result in expediting the trial of such traffic cases.
Now, let us assume another factual situation. Suppose the defendant enters an appearance as of the time and date designated in the citation. However, the complaining officer is not present. Upon arraignment [RCr 8.02] the defendant pleads guilty [RCr 8.08]. In that case the effect of his plea is to waive all defenses other than the citation charges no offense and to authorize the imposition of the penalty prescribed by law. Tarrence v. Commonwealth, Ky., 265 S.W.2d 52 (1954) 53. Thus in the latter situation the district court can enter a disposition of the case even in the absence of the complaining witness.
Now suppose the defendant enters an appearance and pleads "not guilty". If the district court places it on his trial docket, the case will be tried on the date set in his docket. If the court had previously an understanding with the peace officer to be in court on the date designated in the citation, and he failed to show, then the court could strike the citation from the citation docket. However, the complaining officer could procure a summons through the county attorney, and start over. There is no jeopardy, at this point, as we said above.
It is true that RCr 9.02 provides in part that all prosecutions shall proceed when the defendant appears or is brought before the court unless postponed for cause. However, there is never any certainty beforehand as to what course the case will take upon arraignment. While Section 11 of the Kentucky Constitution and the 6th and 14th Amendments of the federal constitution guarantee a speedy trial, the concept of "speedy trial" does not require that the defendant be tried on the day he is advised to come into court under a citation. LaVigne v. Commonwealth, Ky., 398 S.W.2d 691 (1966). It is only necessary under LaVigne that the time elapsing between the date of the offense and the trial be not of such extraordinary duration that either prejudice or arbitrary treatment could be reasonably presumed.
Question No. 2:
"Additionally, do the district judge's powers allow him to require the arresting officer's presence in court on the date he scheduled when writing the citation? If so, is the judge then within the law to dismiss the charge because the officer failed to appear?"
We have answered that above.