Request By:
Mr. Walker J. Howell
Chief of Police
Richmond Police Department
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the physical arrest of a person violating KRS 186.620(2) which states:
"No person whose operator's license has been denied, canceled, suspended or revoked, or whose privilege to operate a motor vehicle has been withdrawn, shall drive any motor vehicle upon the highways while the license is denied, canceled, suspended or revoked or his privilege to operate a motor vehicle is withdrawn. "
Your first question asks whether KRS 186.620(2) is a violation and your second question asks whether KRS 186.620(2) is a traffic offense.
KRS 186.990(3) provides that, "Unless another penalty is provided by law, any person who violates any of the provisions of KRS 186.400 to 186.640 shall be fined not less than twelve dollars ($12.00) nor more than five hundred dollars ($500) or imprisoned for not more than six (6) months, or both." KRS 431.060 states in part that offenses are either felonies, misdemeanors or violations. Subsection (2) of KRS 431.060 provides that, "Offenses punishable by confinement other than in the penitentiary, whether or not a fine or other penalty may also be assessed, are misdemeanors. " Although KRS 186.620(2) and the applicable penalty provision [KRS 186. 990(3)] are outside the penal code, you may wish to examine its provisions concerning the definition of a misdemeanor [KRS 500.080(10)] and the imposition of fines in misdemeanor situations (KRS 534.040).
Thus, the offense of driving a motor vehicle upon the highways of this state by a person whose operator's license has been denied, canceled, suspended or revoked, or whose privilege to operate a motor vehicle has been withdrawn, is a misdemeanor.
Your third question asks whether a peace officer may make a physical arrest for a violation of KRS 186.620(2).
KRS 431.005, dealing with arrests by peace officers, provides in subsection (1)(d) that peace officers may make an arrest without a warrant when a misdemeanor, as defined in KRS 431.060, has been committed in their presence. KRS 431.015(1), however, provides that 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.
In OAG 78-318, copy enclosed, we recognized that nonresident motorists who violate Kentucky motor vehicle statutes and are merely given a citation to appear before a district court on a certain date, have a tendency to not make any kind of appearance before the Kentucky court. A practical alternative would be to actually arrest the nonresident at the time of the offense and take him before the court. However, at page two of the above mentioned opinion, we set forth the legislatively established principle in this state that actual arrests should be made only where necessary to bring the defendant before the court. If the officer has reasonable grounds to believe that the person charged will not appear to answer the charge, he can arrest the person in good conscience. The officer should not assume that the person will not make an appearance merely because he is a nonresident. See also OAG 80-445, copy enclosed.
Thus, a police officer may make an actual arrest without a warrant for a misdemeanor committed in his presence, a violation of KRS 186.620(2) by a nonresident, if he has reasonable grounds to believe that the person will not appear to answer the charge.
Your fourth question asks:
"Does KRS 186.570(1)(h) give reasonable grounds to believe that a violator of KRS 186.620(2) would not appear at the designated time; thus allowing a physical arrest? "
KRS 186.570(1)(h) provides as follows:
"The department or its agent designated in writing for that purpose may deny any person a license or may suspend the license of any person or, in the case of a nonresident, withdraw the privilege of operating a motor vehicle in this state, subject to a hearing and with or without receiving a record of conviction of that person of a crime, whenever the department has reason to believe that:
That person has failed to appear pursuant to a citation or summons issued by a law enforcement officer of this Commonwealth or any other jurisdiction."
We are not sure we understand your question. KRS 186.570 sets forth procedures concerning the denial or suspension of a resident's driver's license and the withdrawal of a nonresident's privilege to operate a motor vehicle in this state. KRS 186.620(2) makes it illegal for a person whose operator's license has been denied, canceled, suspended or revoked, or whose privilege to operate a motor vehicle has been withdrawn, to drive any motor vehicle on the highways of this state. All we can say in response to your question is that if the police officer has evidence or knowledge that the nonresident driver has previously ignored a citation or summons issued by a law enforcement officer of this state or some other jurisdiction, that would probably constitute reasonable grounds to believe that the person will not appear to answer the charges in connection with the most recent incident, thus justifying the person's arrest.
Your fifth question asks:
"May an out of state driver, with no Kentucky operator's license, be cited or arrested when they are caught operating a motor vehicle upon Kentucky highways, while their operator's license of their resident state is canceled, suspended or revoked? "
KRS 186.410 provides in part that every person except those exempted by KRS 186.420 and KRS 186.430 shall before operating a motor vehicle or moped upon a highway secure a Kentucky operator's license. KRS 186.430(1) states as follows:
"A nonresident over the age of sixteen (16) who has been licensed as an operator in his home state or country and who has a valid operator's license certificate in his immediate possession may drive a motor vehicle upon Kentucky highways without a Kentucky operator's license, if his own state or country accords similar privileges to licensed residents of Kentucky."
Thus, as a general proposition, a person who operates a motor vehicle upon the highways of this state must have either a valid Kentucky operator's license or a valid operator's permit from another state. Failure to possess either of the above mentioned operator's licenses means that the person is in violation of KRS 186.620(2) if he operates a motor vehicle upon the highways of this state.
Your sixth question asks:
"In reference to question 5, does an out of state cancellation, suspension, or revocation of an out of state operator's license automatically cancel, suspend, or revoke their Kentucky driving privileges without a hearing as mentioned in KRS 186.570(2)?"
As previously stated, a person cannot legally operate a motor vehicle upon the highways of this state without a valid Kentucky operator's license or a valid operator's license from another state. If an out of state person who has no Kentucky driver's license, has had his license suspended or revoked by the issuing state, he then has no right to drive a motor vehicle upon the highways of this state.
Normally when a right, privilege or benefit has been extended to a person, that right, privilege or benefit cannot be taken from him without a due process hearing. See, for example,
Goldberg v. Kelly, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970). If the nonresident had had a valid driver's license from another state and thus had the privilege of driving on Kentucky's highways, this state could not withdraw that privilege without affording him a due process hearing.
In the situation you have presented, however, there is no privilege to withdraw since the nonresident's home state has already canceled or suspended his operator's license and he has no right or privilege to drive on Kentucky's highways. Kentucky cannot extinguish or withdraw a privilege which does not exist. There is no need to hold a hearing pursuant to KRS 186.570(2) to withdraw driving privileges of a nonresident motorist, where the nonresident driver has no legal authority to operate a motor vehicle on the highways of this state.