Request By:
Mr. Luther N. Norene
Edmonson County Attorney
P.O. Box 409
Brownsville, Kentucky 42210
Opinion
Opinion By: Steven L. Beshear, Attorney General; By Charles W. Runyan, Assistant Deputy Attorney General
You write that in a footnote to KRS 150.090, OAG 63-516 is cited as stating that, in the opinion of the Attorney General, conservation officers could issue citations to persons detected committing misdemeanors in their presence or may, if they so elect, physically arrest the violator and take him before a judge. You observe that if that conclusion is correct, then it would appear that "conservation officers would have the same opportunity as any other peace officers. "
You ask whether OAG 63-516 is still the opinion of this office in that specific regard. Yes, it is, as will be explained.
KRS 446.010(24) defines a peace officer as including sheriffs, constables, coroners, jailers, marshals, policemen and other persons with similar authority to make arrests. " (Emphasis added).
KRS 150.090(1) provides in part that conservation officers or any other persons appointed by the commissioner and all peace officers and their deputies shall enforce the provisions of KRS Chapter 150. Elsewhere in that subsection it is provided that such conservation officers may arrest on sight, without a warrant, any person detected by them in the act of violating any of the provisions of Chapter 150 (Fish and Wild-life Resources). It is further provided that they shall have the same rights as sheriffs to require aid in arresting with or without process any person found by them violating any of the Fish and Wildlife statutes and may seize without process anything declared by Chapter 150 to be contraband.
CONCLUSION
1. Under KRS 150.090(1), conservation officers of the Department of Fish and Wildlife Resources are peace officers to the extent of the enforcement of fish and game laws; and they have express statutory authority to arrest without a warrant any citizen whom they observe in the act of violating such laws. The penalties in KRS Chapter 150 involve something other than felonies. See KRS 431.060 and KRS 500.080(5), (10), and (17). KRS 431.060(1) provides that felonies are punishable by death or confinement in the penitentiary, whether or not a fine or other penalty may also be assessed. KRS 500.080(5) defines a felony as an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Bureau of Corrections may be imposed. KRS 431.005(1)(d) provides that a peace officer may make an arrest without a warrant when a misdemeanor, as defined in KRS 431.060(2), has been committed in his presence. Also see KRS 431.005(1)(a), providing that a peace officer may make an arrest in obedience to a warrant.
2. Under KRS 431.015(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 the person cited will appear to answer the charge. A peace officer may issue a citation (under KRS 431.015(2)) 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. Thus it is our opinion that a conservation officer may issue a citation, as authorized by KRS 431.015(1) and (2), instead of making an arrest for a misdemeanor committed in the officer's presence.
3. It must be carefully noted that KRS 431.015 relates exclusively to issuing citations. It imposes no condition, as such, on the arresting powers of peace officers under KRS 431.005. Note that under subsection (4) of KRS 431.015 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.
4. OAG 63-516 is still considered to be a correct statement of the law as relates narrowly to the enforcement of Fish & Wildlife laws.