Request By:
Officer William A. Love
Richmond Police Department
P.O. Box 250
Richmond, Kentucky 40475
Opinion
Opinion By: David L. Armstrong, Attorney General; Gerard R. Gerhard, Assistant Attorney General
You have requested an opinion of the Attorney General regarding the following questions:
1) "Does a police officer have the authority to seize the operators license of an operator of a motor vehicle whose driving privileges have been suspended or revoked by the Department of Licensing and forward the suspended operators license to the court along with the citation?"
2) "Is the offense of driving on a suspended operators license an arrestable offense or should the operator, who has a suspended operators license, just be cited to appear in court?"
You provided an example as follows:
"[A] police officer makes a traffic stop on a vehicle, who has committed a traffic violation. The operator presents an operators license to the police officer; The Police Officer then runs a check on the Operators License through the NCIC/LINK computer system. The officer then receives the response that the operators license has been suspended, therefore meaning that the operators privilege to operate a motor vehicle has been revoked. "
First, as explained below, the answer is yes, a police officer has authority - even a duty - to seize, both as evidence to be used in a prosecution, and as a statutorily prohibited item, a driver's license the officer has probable cause to believe is suspended or revoked, under circumstances like those described in your example (supra). [The phrase "driver's license" as used herein, equates with "operator's license" as used in KRS 186.610(1)].
[Please note we do not here address specific handling of a seized license, e.g., "forwarding to the Court along with the citation." That is a procedural question regarding handling of evidence, and should be answered perhaps by a cognizant County Attorney, or the Administrative Office of the Courts.]
Second, both the offense of driving upon a public highway when one's driver's license is suspended or revoked (KRS 186.620(2)), and possession of a driver's license knowing it to have been revoked or suspended (KRS 186.610(1)), are misdemeanors (KRS 186.990(3), 500.080(10)), for which a physical arrest may be made or, in the alternative, a citation alone (without a physical arrest) may be issued, in accordance with KRS 431.015(1). Discussion follows.
It is well recognized that police officers have authority to stop a vehicle for a traffic violation an officer has observed, and to demand production of the driver's license and vehicle registration papers. Such authority was recognized, for example, in Delaware v. Prouse, 440 U.S. 648, 671, 59 L. Ed. 2d 660, 671, 99 S. Ct. 1391 (1971), where the Court said in dicta:
"Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained."
In Kentucky, a specific statute allows police officers to demand that a driver display the driver's license. Such action was recognized, for example, in Commonwealth v. Mitchell, Ky., 355 S.W.2d 686, (1962), at 688, where the Court observed:
"The license is accepted on the condition and the implicit agreement that it will be displayed upon demand of proper officers."
If upon checking through the law law enforcement computer system, or by other reliable means, an officer determines the license to have been suspended or revoked, the officer would have probable cause to charge the person who presented such license with violation of KRS 186.610(1), which provides:
"No person shall: (1) Display or cause or permit to be displayed or have in his possession any operator's license knowing it to be fictitious or to have been canceled, revoked, suspended or altered."
Violation of KRS 186.610(1) is a misdemeanor (KRS 186.990(3), KRS 500.080(10), for which a full custody arrest may be effected, or in the alternative, a citation may be issued, in accordance with KRS 431.015(1), which provides in part:
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. [Emphasis added].
It is well established that police officers have authority, in connection with a lawful arrest, to search for and seize evidence of the offense (or offenses) charged (e.g., driving with a suspended license KRS 186.610(1), as well as items it is unlawful for the arrested person to have (e.g., a driver's license, knowing it to have been suspended or revoked, KRS 186.610(1)). Search and seizure in connection with a lawful arrest has been found to be reasonable within the meaning of the Fourth Amendment to the United States Constitution, as well as Section 10 of the Constitution of Kentucky. Carroll v. United States, 267 U.S. 132, 158, 45 S. Ct. 280, 287, 69 L. Ed. 543 (1924), and see the discussion in United States v. Robinson, 414 U.S. 218, beginning at 230 "III", 38 L. Ed. 2d 427, 437, 94 S. Ct. 467. See also Turner v. Commonwealth, Ky., 231 S.W. 519, 521 (1921), and Foster v. Commonwealth, Ky., 415 S.W.2d 373, 375, (1966), Cert. Denied, 388 U.S. 914, 18 L. Ed. 2d 1355, 87 S. Ct. 2128 (1967) (Citing Turner, supra).
In your example, probable cause to make an arrest for violation of KRS 186.610(1) is present. If the officer makes an arrest for such violation, the principle described from Carroll, supra, et al applies. The officer has authority - even the duty - to seize the license he or she has probable cause to believe is suspended or revoked. Such seizure is necessary both because knowing possession of a suspended or revoked license is itself prohibited by statute, and because the license is part of the evidence of the offense.
The only question then, under the facts you have described, is whether the license may be seized if the officer chooses to issue a citation, rather than to make a physical arrest.
Kentucky's legislature has made specific provision, in the case of a misdemeanor, for either a physical arrest, or at the discretion of a peace officer under defined circumstances, for a citation in lieu of arrest. KRS 431.015(1) provides in part:
"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." [Emphasis added]
As stated above, a police officer would have probable cause to make a physical arrest under the facts you have described, and seize a suspended or revoked driver's license. By the same course of reasoning, an officer can also make such seizure where, having authority to make a physical arrest, the officer elects the less intrusive procedure authorized by KRS 431.015(1), of issuing citation in lieu of physical arrest. Regardless of whether there is a physical arrest, or issuance of a citation without a physical arrest, an officer would have the same duties and responsibilities (e.g., seizure of evidence, seizure of an item of which possession is prohibited).
The views expressed herein are not in conflict with earlier Opinions of the Attorney General, 61-317, and 76-645. Those Opinions indicated that a police officer would exceed his authority if he seized a driver's operator's license and then required the driver to drive to the courthouse, while the officer was in physical possession of the driver's operator's license.
Where a police officer determines that a driver either has no operator's license, or that a driver's license has been suspended or revoked, the officer must not allow the driver to continue driving, even where the officer issues a citation rather than making a full custody arrest.
To allow one who has no driver's license or whose license has been suspended or revoked to continue driving is to countenance the very activity the statutes seek to prevent. In Miami v. Aronovitz, Fla., 114 So.2d 784, at 787, the Court noted:
". . . Suspension or revocation of drivers' licenses is one of the most effective measures to compel observance of the traffic laws.
When a license is revoked or suspended it is of major importance that the operator so restricted be prevented from driving an automobile during the penalty period. This is so because otherwise the restriction would be meaningless."
See for example, State v. Hewey, Vt., 471 A.2d 236, 237 (1983), affirming a conviction for operating a vehicle while the driver's license was suspended, where following the stop of vehicle to clarify a vehicle registration where the license plate and a vehicle inspection sticker appeared inconsistent. The Court observed:
"Defendant remained in his vehicle, and the officer returned to his cruiser where by radio he learned from the dispatcher . . . that the defendant's license was under suspension. The officer issued a citation to the defendant for driving while under suspension. The defendant was then told he was free to leave, and apparently a passenger then drove the car." [Emphasis added].
To summarize, under facts like those you have described (supra), a police officer who is presented with a driver's license he determines to be suspended or revoked, should seize such license, both as a statutorily prohibited item, and as evidence, in connection with violation of KRS 186.610(1), and deal with it accordingly. Further, upon seizing a driver's license, a police officer should not then permit the person whose license is seized to operate a vehicle upon the highway.