Request By:
Hon. Challen P. McCoy
County Attorney
113 West Stephen Foster Avenue
Bardstown, Kentucky 40004
Opinion
Opinion By: Fred J. Cowan, Attorney General; Samuel J. Floyd, Jr., Assistant Attorney General
You recently wrote a letter to our office in which you ask whether the language of KRS 431.005(2) sanctioning warrantless arrests in situations of domestic violence precludes a police officer from obtaining a statement from the abused person at the time the abusing party is apprehended.
We are of the opinion that KRS 431.005(2) requires that the warrantless arrest in no way be made contingent upon the execution of a signed statement by the abused individual at the time the arrest occurs. However, we also are of the opinion that the language of the statute does not prohibit an officer from obtaining the signed statement at the time of the arrest, if the abused person indicates a willingness to provide it.
KRS 431.005(2) states in pertinent part:
(2) Any peace officer may arrest without warrant when he has probable cause to believe that if the person is not arrested he will present a danger or threat of danger to others if not immediately restrained and in addition he has probable cause for believing that said person has intentionally or wantonly caused physical injury to his spouse, former spouse, parent, grandparent, child, stepchild, or, if said person is a party of an unmarried couple which has a child in common, the other party of the couple. Within twelve (12) hours following apprehension and booking of a person arrested under this section, an officer shall return to the abused person, if the abused person is an adult, and request that a signed written statement be made by the abused person stating that an abuse occurred and the person who committed it. If the abused person refuses to sign the statement, the charges shall be summarily dismissed and the defendant released from custody.
Given the express statutory language stating that the officer "shall return" and request the statement "following apprehension and booking ," you ask whether police officers can comply with the statute by obtaining the statement at the time of apprehension, but not necessarily following booking.
We have been unable to find any Kentucky cases which are dispositive of this issue, but we have previously stated that the imposition of any prerequisite that the officer obtain a signed statement when the arrest is made would entirely circumvent the purpose of the statute (OAG 81-81). The clear intent of the legislature in this regard is evidenced by the 1980 record of floor and committee amendments in which the Senate rejected a version of House Bill 86 which would have required that police secure a signed complaint at the time of arrest. Instead, language was adopted which carefully separated the probable cause elements of the warrantless arrest from the requirement of later obtaining a signed statement.
Courts normally attempt to give a practical construction to statutes. Commonwealth v. Anderson, Ky.App., 694 S.W.2d 465 (1985). "It's an established rule of statute construction that the courts will consider the purpose which the statute is intended to accomplish and will not give a strict, literal construction to the statute if it would lead to an unreasonable or absurd conclusion." Newbolt v. Board of Ed. of Berea Independent School Dist., Ky., 409 S.W.2d 513, 514 (1966). The policy and purpose of the statute will be considered in determining the meaning of the words used. Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974).
We are of the opinion that it would be carrying the language of KRS 431.005(2) to unreasonable and impractical extremes to conclude that, having once removed an abusive individual from the scene, a police officer would then be prohibited from accepting the signed statement from a complaining witness who was willing to provide it, simply because the person arrested had not actually been "booked" into a jail or holding facility. Once the abusing party has been apprehended and physically removed from the premises, e.g., by being placed in the patrol car, it would not be inappropriate for the arresting officer or another officer at the scene to return to the victim and explain the statement requirement of KRS 431.005(2). If the abused individual expresses a willingness to provide the statement at the time, it is our opinion that the statute would not logically require the officer to refuse to take it.
Therefore, we believe that an officer who obtains a signed statement at the time of apprehension and before the actual booking process, can still comply with the language of KRS 341.005(2), so long as the arrest is not made contingent upon the execution of the statement. In view of the express language of the statute, it is our recommendation that peace officers exercise caution in soliciting such statements at the time of arrest. Furthermore, under no circumstances should the arresting officer, after initially determining that there is probable cause for the arrest, then release the abusing relative or fail to follow through with the booking process simply because the abused person has expressed an unwillingness to provide a statement.