Request By:
Mr. Richard H. Nash, Jr.
Attorney at Law
235 South Fifth Street
Louisville, KY 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; By: Patricia Todd Thomas, Assistant Attorney General
Re: House Bill 351, KRS 218A.990(16)
As legal counsel for the Housing Authority of Louisville and the police officers of the Authority, you have presented several questions regarding application of KRS 218A.990.
The section of KRS 218A.990 which applies to your questions is (16) which reads:
Any person who unlawfully traffics in a controlled substance classified in schedules I, II, III, IV or V in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) yards of any school building used primarily for classroom instruction shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one (1) nor more than five (5) years, or by a fine of not less than three thousand dollars ($3,000) nor more than five thousand dollars ($5,000), or both, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.
The following are responses to the questions you have presented:
1. Does the school have to be open and occupied?
KRS 218A.990(16) states only that the building must be used primarily for classroom instruction. There is no statutory requirement that school be in session at the time of the arrest.
2. Would the particular school involved qualify before and after school hours and during summers?
Arrests may be made any time, since the law requires only that the buildings be used primarily for classroom instruction, not that class be in session. Considering there are times during vacations, be it such time as summer or Christmas, when children are around the premises of a school building, an interpretation otherwise would take the bite out of the law. It makes no difference as to the time of year or time of day in which a person unlawfully traffics in controlled substances in violation of KRS 218A.990(16) as long as it is within 1,000 yards of a buiding which is used primarily for classroom instruction.
3. Does the trafficking have to occur during school hours?
See response to no. 2.
4. Would a vocational/ technical school come within the meaning of a school?
There is no definition of "school" which would lend insight into application of KRS 218A.990(16) to vocational/ technical schools. However, a reference to KRS 158.030 defines common school as an elementary or secondary school which is state supported either in whole or in part by public taxation. The legislature obviously chose not to use the term "common public school." By means of restricting the use of the term school building, the wording "used primarily for classroom instruction" refers back to the type of school building which is to be considered in this type of arrest. Therefore, it is reasonable to assume that the term school could include vocational/ technical schools which have classroom instruction.
5. When evidence is presented in court, would a scale site map with a radius drawn to scale be sufficient to establish the distance from the school in which the defendant was arrested?
This determination would have to be made by the attorney who is prosecuting the felony as to the method he or she wishes to use to prove violation of KRS 218A.990(16) .
I hope this has been of assistance to you.