CHAPTER 431 General Provisions Concerning Crimes and Punishments

Compiler’s Notes.

Under authority of Acts 1984, ch. 401, § 6 “warden” should be substituted for “superintendent” wherever it appears throughout the chapter.

431.005. Arrest by peace officers — By private persons.

  1. A peace officer may make an arrest:
    1. In obedience to a warrant; or
    2. Without a warrant when a felony is committed in his or her presence; or
    3. Without a warrant when he or she has probable cause to believe that the person being arrested has committed a felony; or
    4. Without a warrant when a misdemeanor, as defined in KRS 431.060 , has been committed in his or her presence; or
    5. Without a warrant when a violation of KRS 189.290 , 189.393 , 189.520 , 189.580 , 511.080 , or 525.070 has been committed in his or her presence, except that a violation of KRS 189A.010 or KRS 281A.210 need not be committed in his or her presence in order to make an arrest without a warrant if the officer has probable cause to believe that the person being arrested has violated KRS 189A.010 or KRS 281A.210 ;
    6. Without a warrant when a violation of KRS 508.030 has occurred in a hospital without the officer’s presence if the officer has probable cause to believe that the person being arrested has violated KRS 508.030 . As used in this paragraph, “hospital” includes any property owned or used by a hospital as a parking lot or parking garage; or
    7. Without a warrant when a violation of KRS 235.240(2) has occurred causing an accident, occurring outside of the peace officer’s presence, involving a motorboat or vessel on the waters of the Commonwealth, and resulting in a physical injury or property damage, and a commissioned peace officer has probable cause to determine who the operator of the motorboat or vessel was and that operator was intoxicated or under the influence of any substance that impairs one’s ability to operate the motorboat or vessel at the time of the accident.
    1. Any peace officer may arrest a person without warrant when the peace officer has probable cause to believe that the person has intentionally or wantonly caused physical injury to a family member, member of an unmarried couple, or another person with whom the person was or is in a dating relationship. (2) (a) Any peace officer may arrest a person without warrant when the peace officer has probable cause to believe that the person has intentionally or wantonly caused physical injury to a family member, member of an unmarried couple, or another person with whom the person was or is in a dating relationship.
    2. As used in this subsection, “dating relationship,” “family member,” and “member of an unmarried couple” have the same meanings as defined in KRS 403.720 and 456.010 .
    3. For the purpose of this subsection, the term “member of an unmarried couple” has the same meaning as set out in KRS 403.720 .
  2. A peace officer may arrest a person without a warrant when the peace officer has probable cause to believe that the person is a sexual offender who has failed to comply with the Kentucky Sex Offender Registry requirements based upon information received from the Law Information Network of Kentucky.
  3. For purposes of subsections (2) and (3) of this section, a “peace officer” is an officer certified pursuant to KRS 15.380 .
  4. If a law enforcement officer has probable cause to believe that a person has violated a condition of release imposed in accordance with KRS 431.064 and verifies that the alleged violator has notice of the conditions, the officer shall, without a warrant, arrest the alleged violator whether the violation was committed in or outside the presence of the officer.
  5. A private person may make an arrest when a felony has been committed in fact and he or she has probable cause to believe that the person being arrested has committed it.
  6. If a law enforcement officer has probable cause to believe that a person has violated a restraining order issued under KRS 508.155 , then the officer shall, without a warrant, arrest the alleged violator whether the violation was committed in or outside the presence of the officer.

History. Enact. Acts 1962, ch. 234, § 31; 1980, ch. 309, § 1; 1980, ch. 312, § 1, effective July 15, 1980; 1984, ch. 165, § 23, effective July 13, 1984; 1988, ch. 258, § 5, effective July 15, 1988; 1990, ch. 455, § 33, effective July 13, 1990; 1992, ch. 172, § 14, effective July 14, 1992; 1996, ch. 345, § 4, effective July 15, 1996; 1998, ch. 23, § 16, effective July 15, 1998; 2002, ch. 119, § 3, effective July 15, 2002; 2005, ch. 132, § 31, effective June 20, 2005; 2006, ch. 182, § 24, effective July 12, 2006; 2010, ch. 170, § 17, effective July 15, 2010; 2012, ch. 128, § 1, effective July 12, 2012; 2015 ch. 102, § 42, effective January 1, 2016; 2017 ch. 23, § 1, effective June 29, 2017; 2019 ch. 171, § 3, effective June 27, 2019.

NOTES TO DECISIONS

Analysis

1.Construction With Other Laws.

KRS 433.236(3) takes precedence over KRS 431.005(1)(d) in situations involving theft from a retail establishment both because it is more specific and because it was enacted later in time. Stogner v. Commonwealth, 35 S.W.3d 831, 2000 Ky. App. LEXIS 89 (Ky. Ct. App. 2000).

District court properly granted summary judgment for police officers in an estate administrator’s 42 U.S.C.S. § 1983 action alleging a violation of the decedent’s U.S. Const. amend. XIV due process rights from the officers’ failure to arrest the decedent’s abusive boyfriend the night before she was murdered; there was no constitutional violation because KRS 403.785(2) and KRS 431.005(4) did not confer an entitlement or property interest on victims of domestic abuse. Howard v. Bayes, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

Since neither the Kentucky legislature nor judiciary has affirmatively indicated that KRS 403.785(2) and KRS 431.005(4) confer an entitlement or property interest on victims of domestic abuse, the United States Court of Appeals for the Sixth Circuit is left to conclude that Kentucky neither intended to grant, nor did grant, such an entitlement for purposes of creating a protected property interest under the Due Process Clause of U.S. Const. amend. XIV. Howard v. Bayes, 457 F.3d 568, 2006 FED App. 0285P, 2006 U.S. App. LEXIS 20378 (6th Cir. Ky. 2006 ).

Although Kentucky affords greater protections for its citizens when officers investigate past crimes, its prerogative to experiment with greater constitutional protections does not require Fourth Amendment to do same. United States v. Jones, 953 F.3d 433, 2020 FED App. 88P, 2020 U.S. App. LEXIS 9038 (6th Cir. Ky.), cert. denied, 141 S. Ct. 437, 208 L. Ed. 2d 132, 2020 U.S. LEXIS 3722 (U.S. 2020).

2.Felony.

Railroad police agents had power to make a citizen arrest where felony was committed in their presence or where there was probable cause to believe the person arrested committed it. United States v. Hensley, 374 F.2d 341, 1967 U.S. App. LEXIS 7323 (6th Cir. Ky.), cert. denied, 388 U.S. 923, 87 S. Ct. 2139, 18 L. Ed. 2d 1373, 1967 U.S. LEXIS 1245 (U.S. 1967).

The arresting officer’s testimony established that he made the arrest on the reasonable belief that the person arrested had committed a felony rather than on the basis of warrant issued pursuant to a deficient affidavit. Scamahorne v. Commonwealth, 376 S.W.2d 686, 1964 Ky. LEXIS 466 ( Ky. 1964 ).

Citizen’s arrest was valid where evidence clearly established that a felony had occurred, that an automobile was seen on the premises the day the felony was discovered, that the defendant was present in the same car the following day near the scene of the crime, and that one of the occupants of the automobile admitted the offense and implicated the defendant. Whitaker v. Commonwealth, 479 S.W.2d 592, 1972 Ky. LEXIS 298 ( Ky. 1972 ).

Where officers armed with an arrest warrant who entered defendant’s unlocked home and waited for his return were proceeding in reliance on reliable information and had reasonable grounds to believe defendant had committed a felony which gave authority to arrest, with or without a warrant, claimed invalidity of the warrant was not fatal. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

An officer did not have reasonable grounds to believe the person being arrested had committed a felony when the only information he had was that a reliable, confidential informant told him that if he wanted to catch a purse-snatcher he should talk to the defendant. Jones v. Commonwealth, 556 S.W.2d 918, 1977 Ky. App. LEXIS 824 (Ky. Ct. App. 1977).

Denial of defendant’s motion to suppress evidence of drugs found in his truck during a safety inspection was proper because, under KRS 281.765 , when confronted with irregularities in defendant’s bills of lading and logbooks, the vehicle enforcement officers were permitted to investigate why defendant’s records were not in compliance with the laws, and, because the delay was not unreasonable, the officers were permitted to call in a drug sniffing dog, who alerted to drugs, giving probable cause for the search. Meghoo v. Commonwealth, 245 S.W.3d 752, 2008 Ky. LEXIS 31 ( Ky. 2008 ).

3.Misdemeanors.

Where the act of fishing was committed in the presence of the peace officers, they were not required to know that the admitted fishing without a license was done at a place or under circumstances where a license was not required under some exemption contained in KRS 150.170 to justify their arresting the fisherman without a warrant. Giannini v. Garland, 296 Ky. 361 , 177 S.W.2d 133, 1944 Ky. LEXIS 537 ( Ky. 1944 ) (Decided under prior law).

This section authorizes an officer to arrest for a misdemeanor committed in his presence and does not allow an arrest on the suspicion of the commission of a misdemeanor. Johnson v. Commonwealth, 443 S.W.2d 20, 1968 Ky. LEXIS 139 ( Ky. 1968 ) (decision under statute prior to 1980 amendment).

Since, in this State, a private person cannot make an arrest for a misdemeanor, it is no defense to an action for false imprisonment that a merchant had probable cause to believe that an individual was committing a misdemeanor. Superx Drugs of Kentucky, Inc. v. Rice, 554 S.W.2d 903, 1977 Ky. App. LEXIS 783 (Ky. Ct. App. 1977).

Trial court properly denied defendant’s motion to suppress evidence seized from defendant’s person after defendant was placed under arrest and searched because the police officer had a reasonable belief to conclude that a criminal trespass was being committed in the police officer’s presence when defendant was on property that was owned by the Lexington Housing Authority. The defendant acted evasively, defendant could not identify who he intended to visit on the property, and the property was clearly posted to prohibit trespassing, loitering, and congregating. Commonwealth v. Fields, 194 S.W.3d 255, 2006 Ky. LEXIS 155 ( Ky. 2006 ).

4.Concealed Weapon.

Where the imprint of the concealed weapon was apparent to the arresting officers, there was probable cause for the arrest and the fruit of the search was competent evidence against the defendant. Hayes v. Commonwealth, 458 S.W.2d 3, 1970 Ky. LEXIS 159 ( Ky. 1970 ).

Where defendant in attempting to board a plane aroused suspicion by having a gun, a knife, and bullets on his person which were discovered by magnometer and removed, a search of his person before he boarded was held to be a reasonable search. United States v. Dalpiaz, 494 F.2d 374, 1974 U.S. App. LEXIS 9295 (6th Cir. Ky. 1974 ).

Officer had probable cause to arrest defendant for carrying a concealed weapon because a gun was placed underneath a toolbox in such a way that it could not be seen, and it was reasonable to assume that the weapon was not observable to those with whom defendant would have come into ordinary contact. The search and ultimate seizure of the gun and controlled substances found on defendant’s person constituted a valid search incident to arrest. Vega v. Commonwealth, 435 S.W.3d 621, 2013 Ky. LEXIS 463 ( Ky. 2013 ).

In case involving an off-duty corrections officer who was working security for a hospital, the trial court did not err in its determination that the officer was entitled to defend against plaintiff's claims of negligence, assault, battery, false imprisonment, and intentional infliction of emotional distress—all of which plaintiff alleged stemmed from the officer's decision to forcibly stop plaintiff and search her purse for a weapon she threatened to have—on the basis of qualified immunity. That the officer was being privately employed on the inside of the hospital did not diminish his ability to keep the peace. Smith v. Norton Hosps., Inc., 488 S.W.3d 23, 2016 Ky. App. LEXIS 30 (Ky. Ct. App. 2016).

5.Plain View.

Where officers in defendant’s home to arrest defendant, seized a wallet in plain view, search was valid since officers had prior justification for intrusion, there was no time to secure a search warrant and it was immediately apparent that wallet was evidence. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Officer had probable cause for the warrantless arrest of defendant because the observation of defendant’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide the officer with probable cause to arrest defendant for driving under the influence. Therefore, the warrantless arrest of defendant did not deprive her of her constitutional rights against illegal search and seizure. Leatherman v. Commonwealth, 357 S.W.3d 518, 2011 Ky. App. LEXIS 11 (Ky. Ct. App. 2011), cert. denied, 568 U.S. 843, 133 S. Ct. 153, 184 L. Ed. 2d 76, 2012 U.S. LEXIS 7371 (U.S. 2012).

6.Probable Cause.

The prior knowledge required by the arresting officer is not such as guarantees a conviction; it is such that makes it probable, by the use of any one or more of the five (5) senses, that in the opinion of the arresting officer the accused had committed or was in the act of committing a felony. Sampson v. Commonwealth, 609 S.W.2d 355, 1980 Ky. LEXIS 272 ( Ky. 1980 ).

Where police officer, at time he took juvenile brothers into custody, knew that an estimated $7,000 to $7,500 damage had been done to vandalized house, that one (1) brother had been seen in backyard of vandalized house less than two (2) minutes after glass breaking was heard, that owner had seen brothers break up another vacant house at an unspecified time and officer had no independent knowledge of the perpetrator of the vandalism, there was insufficient information for officer to form a conclusion that there was probable cause for the arrest, since at most the officer had grounds to suspect the brothers and continue the investigation. Davidson v. Commonwealth, 613 S.W.2d 431, 1981 Ky. App. LEXIS 229 (Ky. Ct. App. 1981).

There was no probable cause for the arrest of a defendant who was only a back seat passenger in a car which was stopped for speeding and whose driver admitted to police that he had been smoking marijuana. Paul v. Commonwealth, 765 S.W.2d 24, 1988 Ky. App. LEXIS 144 (Ky. Ct. App. 1988).

Department of Alcoholic Beverage Control officer’s arrest for supplying alcohol to a minor in violation of KRS 530.070 , which was found to be defective for failing to comply with this section, as officer did not witness each element of the offense, did not support an action under 42 USCS § 1983, because § 1983 action depended only on whether the officer had probable cause for the arrest under the Fourth Amendment of the U.S. Constitution.Pyles v. Raisor, 60 F.3d 1211, 1995 FED App. 0228P, 1995 U.S. App. LEXIS 20249 (6th Cir. Ky. 1995 ).

Although warrant was invalid due to insufficiency of supporting affidavit, arrest was valid where officer had sufficient information to support probable cause for a warrantless arrest, and where defendant was outside her home and therefore had no reasonable expectation of privacy. Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ).

District Court dismissed an innocent arrestee’s constitutional claims and state law tort claims against police officers, except claims for withholding of exculpatory evidence and making the arrest without probable cause or a valid identification of the arrestee by a victim. Gregory v. City of Louisville, 2004 U.S. Dist. LEXIS 7046 (W.D. Ky. Mar. 24, 2004), aff'd in part and rev'd in part, 444 F.3d 725, 2006 FED App. 0127P, 2006 U.S. App. LEXIS 8792 (6th Cir. Ky. 2006 ).

Trial court properly denied defendant’s motion pursuant to RCr 9.78 to suppress drugs found on defendant; an informant’s tip provided probable cause for an arrest and search, as the tip had sufficient indicia of reliability, and police corroborated the details, so defendant’s rights pursuant to Ky. Const., § 10 were not violated, and even though an initial search of defendant’s vehicle did not reveal any contraband, the officer had sufficient probable cause under KRS 431.005(1)(c) to make a warrantless arrest. Williams v. Commonwealth, 147 S.W.3d 1, 2004 Ky. LEXIS 181 ( Ky. 2004 ), cert. denied, 544 U.S. 986, 125 S. Ct. 1859, 161 L. Ed. 2d 745, 2005 U.S. LEXIS 3132 (U.S. 2005).

Since a policeman may “observe” with any of his five (5) senses for purposes of a misdemeanor arrest, when the arresting officer approached the car and smelled marijuana smoke, he had probable cause to believe that a misdemeanor was being committed in his presence by the defendant, and the arrest without a warrant was proper. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

Based on a citizen’s complaint regarding plaintiff’s erratic and dangerous driving, and his own observations of defendant during a high-speed pursuit, the police officer determined that defendant was speeding and fleeing a police officer. The officer had probable cause to arrest plaintiff for driving under the influence. Dier v. City of Prestonsburg, 480 F. Supp. 2d 929, 2007 U.S. Dist. LEXIS 26644 (E.D. Ky. 2007 ).

Where the officers gained reliable information that defendant and his brother were involved in a shooting, they found defendant’s brother and a witness-described vehicle within three blocks of the murder scene, and apprehended the brother after he ran from the police, those events strengthened the witnesses’ reports that defendant was also involved in the shooting and gave the officers reasonable grounds to believe that defendant was guilty of committing a felony. Therefore, the police had probable cause justifying the warrantless arrest of defendant and his confession was not inadmissible on that basis. Taylor v. Commonwealth, 276 S.W.3d 800, 2008 Ky. LEXIS 313 ( Ky. 2008 ), cert. denied, 558 U.S. 865, 130 S. Ct. 175, 175 L. Ed. 2d 110, 2009 U.S. LEXIS 5366 (U.S. 2009).

Probable cause existed for a warrantless arrest of defendant because an experienced police narcotics officer observed defendant sitting in a car and holding crack cocaine. McCloud v. Commonwealth, 286 S.W.3d 780, 2009 Ky. LEXIS 152 ( Ky. 2009 ).

Although an officer saw drug paraphernalia after opening the door to the motel room in which defendant was staying, since the officer had no justifiable reason to enter the room without first obtaining a warrant, the drugs and paraphernalia, which were the fruits of the illegal entry, should have been suppressed. Southers v. Commonwealth, 210 S.W.3d 173, 2006 Ky. App. LEXIS 350 (Ky. Ct. App. 2006), overruled in part, Brumley v. Commonwealth, 413 S.W.3d 280, 2013 Ky. LEXIS 587 ( Ky. 2013 ).

7.Appeals.

Where defendant did not object to an allegedly illegal arrest at the trial court level, the Supreme Court could not review that issue on appeal, where the record disclosed no manifest injustice to the defendant. Sanders v. Commonwealth, 609 S.W.2d 690, 1980 Ky. LEXIS 275 ( Ky. 1980 ).

8.Illegal Arrest.

Where the only thing that an officer had seen was the defendant and another man stooped over on the sidewalk and later saw the defendant putting money in his pocket, the arrest of defendant for gambling in the presence of an officer was illegal, and the subsequent search and seizure of defendant was violative of his rights under Ky. Const., § 10. Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled in part, Commonwealth v. Mobley, 160 S.W.3d 783, 2005 Ky. LEXIS 139 ( Ky. 2005 ).

Circuit court erred in denying defendant's motion to suppress because a police officer had no authority to arrest defendant for alcohol intoxication in a public place, and thus, the search incident to the arrest was not valid; the offense was not committed in the presence of the officer, and defendant, who was lying flat on the floor of his front porch in a state of total repose, was doing nothing that could pose a danger to himself or others. Maloney v. Commonwealth, 489 S.W.3d 235, 2016 Ky. LEXIS 98 ( Ky. 2016 ).

Trial court properly suppressed evidence resulting from the officers’ warrantless search and seizure of defendant because the Commonwealth failed to show either officer had an articulable reasonable suspicion defendant had committed a crime when an officer directed him to stop. The alleged violation of a city ordinance was neither a misdemeanor nor a felony and thus, defendant did not commit a misdemeanor under Ky. Rev. Stat. Ann. § 520.100(1)(a) and, as a result, the officers were without authority to arrest him under Ky. Rev. Stat. Ann. § 431.005(1)(d). Commonwealth v. Wilson, 625 S.W.3d 252, 2021 Ky. App. LEXIS 65 (Ky. Ct. App. 2021).

9.Controlled Substances.

Because the definition of “peace officer” in subsection (3) (now (4)) of this section is specifically limited to “domestic violence” situations, it had no application to defendant’s arrest for trafficking and possession of controlled substance; part-time county police officer was duly appointed under KRS 70.540 and was a peace officer empowered to make arrest under subsection (1) of this section. Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

10.Assault on Officer.

Trial court erred in dismissing defendant’s indictment for the third-degree assault of a police officer because the unlawfulness of the officer’s entry into the residence where defendant was sleeping was not a defense to the assault on the officer; moreover, the evidence regarding the alleged assault by was not tainted by the officer’s unlawful entry and was admissible at trial. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

A police officer’s unlawful entry into a residence does not render evidence of a subsequent assault against the officer inadmissible under the exclusionary rule. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

Cited in:

Lexington v. Gray, 499 S.W.2d 72, 1973 Ky. LEXIS 268 ( Ky. 1973 ); Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 ( Ky. 1973 ); Guthrie v. Commonwealth, 508 S.W.2d 40, 1974 Ky. LEXIS 587 ( Ky. 1974 ); Johnson v. Commonwealth, 563 S.W.2d 486, 1978 Ky. App. LEXIS 482 (Ky. Ct. App. 1978); Donovan v. Thames, 105 F.3d 291, 1997 U.S. App. LEXIS 1225 (6th Cir. 1997); Darden v. Commonwealth, 52 S.W.3d 574, 2001 Ky. LEXIS 135 ( Ky. 2001 ).

Notes to Unpublished Decisions

1.Probable Cause.

Unpublished decision: The “in the presence” requirement of KRS 431.005(1)(d) is a state-provided right that is not grounded in the U.S. Constitution and does not support a § 1983 claim. Straub v. Kilgore, 100 Fed. Appx. 379, 2004 U.S. App. LEXIS 10668 (6th Cir. Ky. 2004 ).

Opinions of Attorney General.

If in dry territory, a county jailer could arrest anyone delivering liquor to an inmate of the jail without a warrant if the offense was committed in the jailer’s presence. OAG 65-183 .

An officer of the police department of a city of the fourth class has authority to make an arrest without a warrant on a grocery store parking lot which is privately owned and displays a sign “For Customers Only.” OAG 67-170 .

A constable is a peace officer and, as such, has the authority to make an arrest for a misdemeanor, including those traffic offenses which are misdemeanors committed in his presence. OAG 67-496 .

A peace officer may, after observing a person committing a public offense in his presence, pursue that person to his home and make the arrest there even though he may have temporarily lost sight of the misdemeanant. OAG 68-491 .

A jailer is a peace officer and he or his deputy may make arrests as peace officers as prescribed by this section. OAG 69-174 .

An arrest, effected under the requirements of this section by a marshal of a sixth-class city, may be made outside of the subject city but within the marshal’s county. OAG 71-26 .

For the misdemeanor of disorderly conduct committed on a drive-in restaurant parking lot, a peace officer would have authority to make an immediate arrest without warrant so long as the offense is committed in his presence. OAG 71-476 .

A deputy sheriff has the general power of arrest pursuant to this section while a special local peace officer can only exercise his power of arrest under subsection (1) of this section except while in pursuit of a person fleeing from the protected property after committing an act of violence or destruction as mentioned in KRS 61.360 . OAG 72-315 .

An arrest may not be made upon the observation of physical evidence by an officer not present when the violation was committed. OAG 72-619 .

A county jailer, as a peace officer, has the duty and authority to arrest and imprison a drunk who knocks on the door of the county jail and he must take defendant before a magistrate without unnecessary delay. OAG 73-163 .

Police officers may, upon request, with the consent of the club authorities, enter private club property without a warrant and make arrests on club premises pursuant to this section. OAG 74-313 .

Police officers have no authority to enter private club property without a valid search warrant merely because they suspect misdemeanors are being or are about to be committed there. OAG 74-313 .

It is not a violation of any statute for a police judge to assist the chief of police in subduing a prisoner resisting arrest in the courtroom provided only such force as is necessary is employed. OAG 74-503 .

Parking tickets are not citations so they may be issued by city “meter maids” who are minors and if the owner or operator does not respond then a warrant or summons may be issued by the police court judge on the complaint of the “meter maids” pursuant to RCr 2.02 and 2.04 but the “meter maids” cannot make arrests under this section for parking violations which are misdemeanors since the “meter maids” are not peace officers under KRS 431.015 . OAG 74-552 .

For purposes of the Penal Code, traffic offenses will be traffic infractions and not crimes; and for purposes of existing law outside the Code, they will be designated as either felonies or misdemeanors pursuant to KRS 431.060 for which peace officers may make arrests or issue citations pursuant to this section and KRS 431.015 . OAG 74-675 .

A peace officer may go on private property in order to arrest a misdemeanant for an offense done in officer’s presence. OAG 74-838 .

This section does not authorize a deputy sheriff, who is not filling an authorized deputy position under a fiscal court order, to make an arrest as a peace officer. OAG 74-881 .

A police officer in a city of the fourth class may arrest a subject any place within the county on the basis of a warrant issued anywhere in Kentucky providing the warrant is outstanding and “on file” within the county but he may not arrest a defendant on the basis of a warrant “on file” in another county. OAG 75-575 .

Although a police officer who observes a known drug dealer seated in one (1) parked car pass a small package to a known drug user seated in a second parked car lacks information necessary for probable cause to arrest the individuals, it would not be unreasonable for him to approach the individuals and briefly detain them for the limited purpose of investigating the reasons for the rendezvous. OAG 75-710 .

Where a police officer on routine patrol observed an individual seated in one (1) parked car pass a small package to another individual seated in a second parked car, the fact that the police officer knew that one (1) party was a known drug dealer and that the other was a known drug user furnished no probable cause for arrest of the individuals and a search of them or their cars, since the police officer had no prior information that a sale of illegal drugs was to be made at that particular time and the officer observed no contraband in plain sight. OAG 75-710 .

Where a peace officer cannot arrest a driver for speeding in a school zone because the officer has not witnessed the commission of the misdemeanor offense, an arrest can be made with a warrant issued upon an affidavit of school personnel who witnessed the violation. OAG 76-313 .

As a peace officer a constable has the peace officer’s authority to make an arrest pursuant to this section. OAG 78-207 .

All peace officers are responsible for arrest upon a crime being committed and if one wants to have an injunction or restraining order enforced they should go to the court for an appropriate order. OAG 80-142 .

As far as this section is concerned there are only two (2) types of public offenses, felonies and misdemeanors, and even though the penal code designates certain offenses as “violations” the law of arrest applies to the so-called violations the same as misdemeanors. OAG 80-143 (withdrawing OAG 79-395 ).

A police officer of a fifth class city, who has the statutory authority to make an arrest anywhere in the county in which the city is located, has not only the authority but the duty to make an arrest for a misdemeanor committed in his presence, in the county, regardless of whether he is on-duty or off-duty. OAG 80-146 .

The legality of the Acts 1980, ch. 312, § 1, which amended this section to allow warrantless arrest on probable cause in specified instances of domestic violence, was not affected by the United States Supreme Court’s decision in Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639, 1980 U.S. LEXIS 13 (1980), which held that police officers may not enter a private residence without a warrant absent exigent circumstances to make a felony arrest, since many of the elements in chapter 312, § 1 permitting warrantless arrest also relate to exigent circumstances. OAG 80-280 .

A peace officer may make an arrest without a warrant for an infraction of any of the six (6) statutes named in subsection (1)(e) of this section committed in his presence, with no other condition, however, a physical arrest is not mandatory; a peace officer may make an arrest without a warrant for an infraction of any other “violation,” as classified under KRS 431.060 , committed in his presence, if he has reasonable grounds to believe that the defendant, if a citation is issued, will not appear in court at the designated time to answer the charge. OAG 80-445 .

A police department may not, under subsection (2), require execution of a written statement by an abused person indicating his or her willingness to prosecute the person to be arrested as a condition precedent to arrest, since imposing such a prerequisite to arrest would appear to circumvent the purpose of the section which is to permit a peace officer to remove a person exercising a dangerously dominant influence over a relative. OAG 81-81 .

Civil liability against an arresting peace officer should not be imposed for false imprisonment if the officer has reasonable grounds to make such an arrest and acts in good faith, even if the arrestee is subsequently not guilty of any offense. OAG 81-81 .

The only legal deputy sheriffs are those appointed by the sheriff to fill deputy positions authorized by the urban county council pursuant to KRS 64.530 , 67A.060 , 67A.300 , and unsalaried deputy sheriffs, called “courtesy special deputies,” are illegal; such illegal deputies are merely private persons and would have the power of arrest given to private persons under KRS 431.005(2), but they are not peace officers and they cannot carry concealed deadly weapons for any reason. OAG 82-105 .

Special policemen have the same powers as regular policemen unless their powers are expressly limited by statute or ordinance, and special or auxiliary police officers have the same power of arrest under this section as is conferred upon regular policemen; in addition, a regular police officer’s power of arrest is not affected or limited by the number of hours he works and he has the same powers of arrest as any other regular member of the police force even if he works less than 40 hours a week. OAG 82-183 .

When a peace officer spots a vehicle a short distance from the scene of an accident which he suspects as having been involved in the accident, he is justified in making an arrest for leaving the scene, for the reason that the driver is guilty of a continuing violation of KRS 189.580 and is still involved in leaving the scene at the time of the arrest, so that this misdemeanor is in fact being committed in the officer’s presence at the time of the arrest. It is not required that the officer witness the vehicle leave the accident scene itself in order for the officer to make an arrest. OAG 82-301 .

A peace officer may not make an arrest for a misdemeanor or violation if the misdemeanor or violation is not committed in his presence and he may not issue a citation instead of making an arrest if the misdemeanor or violation is not committed in his presence. OAG 82-393 .

If a misdemeanor or violation committed in connection with a zoning ordinance is not committed in the presence of a peace officer, the officer would have to follow the procedures set forth in RCr 2.02 and 2.04 to obtain a warrant of arrest or summons for the violation or misdemeanor. A private person could follow such procedures to get a warrant of arrest or summons issued. OAG 82-393 .

A validly appointed deputy jailer can effect an arrest in the county if he follows the dictates of this section; thus a deputy jailer can make an arrest in his county for a misdemeanor in obedience to a warrant or without a warrant when a misdemeanor, as defined in KRS 431.060 , has been committed in his presence; however, an arrest under the special circumstances related in subsection (2) of this section does not apply to a deputy jailer. A regular deputy jailer is required to be on duty in connection with the jail operations under a full and regular schedule but even if a deputy jailer is remiss in his jail duties, such would not invalidate his arrest actions if properly effected. OAG 82-422 .

The fiscal court, in an ordinance creating an auxiliary county police force, has the authority to extend to such auxiliary county policemen the full powers of arrest of a statutory peace officer, including the right to carry a weapon; under these county legislative conditions, and once the auxiliary county policemen have been duly appointed and have taken the oath, they become policemen and peace officers as long as they remain on the force. OAG 83-58 .

A police officer may make an actual arrest without a warrant for a misdemeanor committed in his presence, i.e., a violation by a nonresident of KRS 186.620(2) prohibiting driving without a license, if he has reasonable grounds to believe that the person will not appear to answer the charge. OAG 83-67 .

If a police officer has evidence or knowledge that a nonresident driver found to be in violation of KRS 186.620 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 would not appear to answer the charges in connection with the most recent incident, thus justifying the person’s arrest. OAG 83-67 .

A regular county policeman is a “peace officer,” under KRS 446.010(24) (now (25)) and this section, at all times. OAG 83-90 .

The arresting powers described in subsection (1) of this section apply to special deputy sheriffs appointed pursuant to KRS 70.045 when that deputy is properly on duty in connection with an actual emergency. OAG 83-246 .

A special deputy appointed under KRS 70.045 is not a “peace officer” as defined in subsection (3) of this section for purposes of subsection (2) of this section regarding warrantless arrests, since the special deputy is not a full-time paid deputy sheriff. OAG 83-246 .

KRS 431.060 , 500.020 and this section must be read together, and such a reading reveals that a law-enforcement officer may only arrest without a warrant an individual who in the officer’s presence commits a misdemeanor, an offense punishable by confinement other than in the penitentiary whether or not a fine or other penalty may also be assessed. OAG 84-258 .

The language used by the legislature in KRS 403.760 , which states that violation of the terms or conditions of an order issued under the provisions of this act “shall constitute contempt of court,” does not empower a law-enforcement officer to arrest without a warrant a spouse found violating the provisions of an order restraining said spouse from visiting the residence of the petitioning spouse; however, the language in no way limits a law-enforcement officer’s power to arrest without a warrant a visiting spouse if, for example, an assault, trespassing, abuse, or other offense has been committed. OAG 84-258 .

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 subsection (2) of this section, 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 recommended 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. OAG 90-128 .

Subsection (2) of this section 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, 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. OAG 90-128 .

If the accused has apparently desisted from the threat of danger to the victim and victim’s present location is apparently safe from attack, the decision to seek promptly an arrest warrant and a domestic violence protective order pursuant to KRS 403.715 to 403.785 rather than undertake a warrantless arrest would be justified and appropriate. Conversely, if the accused has fled from the scene of the attack and the officer determines that there is probable cause to believe that the accused intentionally or wantonly caused physical injury to the victim and still presents an immediate threat of danger, for example, because the accused may return to the victim’s dwelling or other location or because the accused may follow, menace, stalk, or otherwise stay in the vicinity of the victim; a warrantless arrest under subsection (2) of this section would be justified. OAG 92-96 .

Regardless of whether a warrantless arrest is made, the officer should attempt to determine and document from the victim, any other witnesses, and any available physical evidence whether a reasonable probability still exists that the accused presents an immediate threat of danger to the victim. If the accused is available and willing to discuss the situation, the officer should attempt to obtain a written or recorded statement from the accused. OAG 92-96 .

Subsection (2) of this section requires that the officer have probable cause to believe that the accused has caused physical injury to his family member (e.g., spouse or former spouse), or other person of an unmarried couple and that the accused presents a danger or threat of danger to others if not immediately restrained. The fact that the victim (or complaining witness) has fled to the dwelling of a third party or to a public building does not necessarily mean that the accused no longer presents an immediate threat of danger. Assuming that the accused has not followed the victim into the new location or building, the accused may still intend to retaliate against the victim as soon as the opportunity presents itself. In such a situation, the accused would still present a threat of danger if not immediately restrained by warrantless arrest. OAG 92-96 .

The fact that the victim has fled from the scene (e.g., the dwelling where the parties reside) of the assault does not prevent the officer from making a warrantless arrest. Whether accused should be immediately arrested for the appropriate degree of assault regardless of his location depends upon whether there is probable cause that the accused still presents an immediate threat of danger to the victim. OAG 92-96 .

A special deputy sheriff, whether a “general law enforcement deputy” (KRS 70.045(1)), or an “emergency situation deputy” (KRS 70.045(2)), as an unpaid deputy, cannot make a warrantless arrest pursuant to subsection (2) of this section. OAG 92-115 .

An unpaid special deputy sheriff appointed pursuant to KRS 70.045 can, except in the case of a domestic violence related arrest that would be made pursuant to subsection (2) of this section, make an arrest either with or without a warrant, when authorized under other provisions of this section, KRS 70.045 , and other provisions of the law. OAG 92-140 .

An unpaid special deputy sheriff (KRS 70.045 ) is not a “peace officer” for purposes of making a warrantless arrest pursuant to subsection (2) of this section. OAG 92-140 .

The courts of this state have for many years regarded a deputy sheriff as having substantially the same authority as the sheriff. Breaking and entering a house or enclosure to carry out an order of arrest would be a duty of the sheriff, and thus could be carried out by a deputy of the sheriff, or a special deputy of the sheriff. OAG 92-140 .

The limited definition of “peace officer” set forth in subsection (3) of this section as affecting a special deputy sheriff (KRS 70.045 ), applies only in relation to an arrest that would be made without a warrant pursuant to KRS 431.005(2), in what might be termed the “domestic violence” circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of KRS 403.740 or 403.750 . OAG 92-140 .

A railroad policeman may make an arrest off railroad property, but within a county through which the railroad operates, for a felony, without an arrest warrant, if (1) the offense is a felony, and (2) the arrest is for an offense “committed upon or about railroad property,” and (3) the circumstances specified in subdivision (1)(b) or (1)(c) of this section are present. OAG 93-29 .

“Volunteer” deputy sheriffs are, from a legal perspective, “special deputy sheriffs” (KRS 70.045 ). A “volunteer” (special) deputy sheriff, appointed for “general law enforcement” pursuant to KRS 70.045 (1) has the same powers, except in the case of a warrantless arrest pursuant to subsection (2) of this section, as a “regular” or paid deputy sheriff. A special deputy appointed for “emergency circumstances” under KRS 70.045(2) has the powers of a special deputy sheriff only during preparation for, or the occurrences of, emergencies such as fire, flood, storm, or other “such emergencies.” The sheriff must cause signification of the statutory provision under which a special deputy is appointed to appear on the county clerk order book together with the deputy’s name. OAG 95-22 .

A federal agent who makes a “citizen’s arrest” may lawfully make such an arrest only where there is strict conformity with this section. OAG 95-30 .

Research References and Practice Aids

Cross-References.

Physical force, use in making arrest, KRS 503.090 .

Shoplifting suspect, detention and arrest, KRS 433.236 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Northern Kentucky Law Review.

Bales and Hamilton, Jr., Workplace Investigations in Kentucky, 27 N. Ky. L. Rev. 201 (2000).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for False Imprisonment, § 121.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Assault and Battery, § 28.12.

Petrilli, Kentucky Family Law, Actions, § 17.15.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.24.

431.007. Arrest powers of peace officers assisting in another county — Exception.

  1. A peace officer certified pursuant to KRS 15.380 to 15.404 , who is directly employed as a police officer by a Kentucky city, county, or urban-county government and whose department meets the requirements of KRS 15.440 and a sheriff, or deputy sheriff who has been certified pursuant to KRS 15.380 to 15.404 , who is officially requested by a law enforcement agency in another county in Kentucky to assist in any matter within the jurisdiction of the requesting agency shall possess, while responding to and for the duration of the matter for which the request was made, the same powers of arrest in the requesting county as he possesses in the county in which he is a police officer.
  2. The provisions of this section shall not:
    1. Authorize assistance in any labor dispute or strike;
    2. Authorize assistance by a constable or deputy constable;
    3. Authorize assistance by a special local peace officer; or
    4. Authorize assistance by a special deputy sheriff.

History. Enact. Acts 1986, ch. 120, § 1, effective July 15, 1986; 2007, ch. 108, § 1, effective June 26, 2007.

431.008. Insurance coverage for assistance rendered under KRS 431.007.

When a peace officer specified in KRS 431.007 is lawfully conducting an assistance operation under KRS 431.007 , any insurance relative to the performance of his duties, including, but not limited to, workers’ compensation, health, liability, and motor vehicle insurance, maintained by the peace officer or the peace officer’s employer, shall remain in force.

History. Enact. Acts 2000, ch. 515, § 1, effective July 14, 2000.

431.010. Offenses — Where tried. [Reenacted as KRS 452.510.]

Compiler’s Notes.

This section (1145) was reenacted as KRS 452.510 by Acts 1962, ch. 234, § 32.

431.015. Citation for misdemeanor — Failure to appear.

    1. KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b), (c), and (d) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time. (1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in paragraphs (b), (c), and (d) of this subsection, a peace officer shall issue a citation instead of making an arrest for a misdemeanor committed in his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
    2. A peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is:
      1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010 , 511.050 , 511.085 , 514.110 , or 523.110 ;
      2. An offense in which the defendant poses a risk of danger to himself, herself, or another person; or
      3. An offense in which the defendant refuses to follow the peace officer’s reasonable instructions.
    3. A peace officer shall make an arrest for violations of protective orders issued pursuant to KRS 403.715 to 403.785 or an order of protection as defined in KRS 456.010 .
    4. A peace officer may make an arrest or may issue a citation for a violation of KRS 508.030 which occurs in a hospital pursuant to KRS 431.005(1)(f).
  1. A peace officer may issue a citation instead of making an arrest for a violation committed in his or her 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 or unless the offense charged is a violation of KRS 189.223 , 189.290 , 189.393 , 189.520 , 189.580 , 235.240 , 281.600 , 511.080 , or 525.070 committed in his or her presence or a violation of KRS 189A.010 , not committed in his or her presence, for which an arrest without a warrant is permitted under KRS 431.005(1)(e).
  2. A peace officer may issue a citation when he or she has probable cause to believe that the person being issued the citation has committed a misdemeanor outside of his or her presence, if there are reasonable grounds to believe that the person being cited will appear to answer the charge. The citation shall provide that the defendant shall appear within a designated time.
  3. If the defendant fails to appear in response to the citation, or if there are reasonable grounds to believe that he or she will not appear, a complaint may be made before a judge and a warrant shall issue.
  4. 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.

HISTORY: Enact. Acts 1962, ch. 234, § 33; 1976 (Ex. Sess.), ch. 14, § 437, effective January 2, 1978; 1978, ch. 26, § 1, effective March 3, 1978; 1980, ch. 309, § 2, effective July 15, 1980; 1984, ch. 165, § 25, effective July 13, 1984; 2000, ch. 512, § 10, effective July 14, 2000; 2011, ch. 2, § 46, effective June 8, 2011; 2012, ch. 128, § 2, effective July 12, 2012; 2015 ch. 102, § 43, effective January 1, 2016; 2016 ch. 98, § 1, effective July 15, 2016; 2017 ch. 23, § 2, effective June 29, 2017; 2018 ch. 189, § 2, effective July 14, 2018.

NOTES TO DECISIONS

1.Uses of Citation.

In a pre-trial hearing on a motion to suppress, the trial court could rely on statements in the uniform citation issued to defendant, even though the citation was not offered or admitted into evidence; the citation was used by both parties during the hearing, the trial court reviewed the citation, and defendant referenced it, confirmed its creation and authenticity, and asked questions from it for purposes of impeachment. Commonwealth v. Priddy, 184 S.W.3d 501, 2005 Ky. LEXIS 389 ( Ky. 2005 ), cert. denied, 549 U.S. 980, 127 S. Ct. 444, 166 L. Ed. 2d 316, 2006 U.S. LEXIS 7879 (U.S. 2006).

As the more specific statute, the Court of Appeals of Kentucky interprets Ky. Rev. Stat. Ann. § 433.236 as controlling in cases of shoplifting. When an individual has committed larceny in a retail or wholesale store, a police officer may effectuate an arrest of such individual under § 433.236 . Conversely, the Court of Appeals interprets Ky. Rev. Stat. Ann. § 431.015 as generally applying to other misdemeanor offenses committed in the officer's presence. Burdette v. Commonwealth, 495 S.W.3d 156, 2015 Ky. App. LEXIS 153 (Ky. Ct. App. 2015).

Cited in:

Dier v. City of Prestonsburg, 480 F. Supp. 2d 929, 2007 U.S. Dist. LEXIS 26644 (E.D. Ky. 2007 ); Commonwealth v. Terrell, 2015 Ky. LEXIS 69 (Apr. 2, 2015).

Opinions of Attorney General.

The only remedy for failure to appear is a complaint and warrant on the original offense. OAG 63-40 .

A conservation officer may issue a citation as authorized by this section instead of making an arrest for a misdemeanor committed in the officer’s presence. OAG 63-516 .

A citation issued under this section does not confer jurisdiction of the person unless he presents himself before the court in response to it or enters appearance by an attorney, and there is no formal charge as a matter of record in the court. OAG 65-606 .

A city police officer may issue citations instead of making arrests for misdemeanors committed on privately owned parking lots if committed in his presence. OAG 67-270 .

Where a misdemeanor is committed in his presence, a state trooper may cite the alleged offender to appear before any magistrate in the county. Where a trooper follows a pattern of taking all citations to one particular magistrate with regularity, this is an administrative matter under the control of the department of public safety (now Justice Cabinet). OAG 69-206 .

A constable can issue citations in traffic violation cases outside of his district citing such cases either to the county or justice’s court or to the police judge. OAG 70-792 .

A police officer may not issue a citation for a misdemeanor which he did not witness even though his observation of physical evidence at a traffic accident would allow him to form a judgment as to who has violated a traffic regulation. OAG 72-619 .

The jurisdiction of a justice of the peace in a criminal matter does not attach upon the issuance of a citation which does not have the legal efficacy of a warrant or summons and there is no jurisdiction unless the accused obeys the citation or enters his appearance by other means and, where a citation is issued and the accused does not enter his appearance, a complaint may be filed pursuant to RCr 2.02 and a warrant or summons issued pursuant to RCr 2.04 and the defendant is either arrested or comes into the court, at which time jurisdiction of the person attaches and a formal charge is presented for adjudication. OAG 73-312 .

A defendant who is given a citation can appear in court by a written statement delivered to the court and can enter a plea of guilty by waiving his personal appearance at the trial, which may be held in his absence. OAG 74-247 .

A sheriff or other peace officer is entitled to the same fee for issuing a citation for a misdemeanor as they are for making an arrest for the same misdemeanor. OAG 74-361 (overruling 60-787, 66-756, 68-511, 74-27 and any other opinions to the extent they are in conflict).

Parking tickets are not citations so they may be issued by city “meter maids” who are minors and if the owner or operator does not respond then a warrant or summons may be issued by the police court judge on the complaint of the “meter maids” pursuant to RCr 2.02 and 2.04 but the “meter maids” cannot make arrests under KRS 431.005 for parking violations which are misdemeanors since the “meter maids” are not peace officers under this section. OAG 74-552 .

For purposes of the Penal Code, traffic offenses will be traffic infractions and not crimes; and, for purposes of existing law outside the Code, they will be designated as either felonies or misdemeanors pursuant to KRS 431.060 for which peace officers may make arrests or issue citations pursuant to KRS 431.005 and this section. OAG 74-675 .

An officer who cannot read or write may have another person write a citation for a misdemeanor done in the officer’s presence. OAG 74-841 .

A peace officer has no authority, by virtue of this section, to irrevocably determine the specific magistrate to whom a defendant will be required to plead. OAG 74-875 .

A citation issued pursuant to this section is not a court process. OAG 75-116 .

Inasmuch as a citation does not and cannot compel a person to appear before a court, a peace officer who believes the person cited for a misdemeanor will appear can obtain a warrant by making a complaint before a magistrate. OAG 76-246 .

A peace officer would not be prohibited from using a privately owned vehicle in his official work of patrolling and issuing citations. OAG 77-561 .

Since this section has not established guidelines by which the peace officer must determine whether to issue a citation or take the defendant into custody, the peace officer should exercise his sound judgment in each case as to whether the misdemeanant will probably respond to the citation or whether a physical arrest and taking into custody is necessary. OAG 78-224 .

The sheriff can collect the arrest fee only where he, or a deputy, arrests the defendant and takes him to the appropriate judge for bail and further processing but, where the arrest is only for a short period and is followed by issuing a citation, the arrest fee cannot be earned. OAG 78-224 .

This section was designed to eliminate arrests in mere traffic violations and other minor misdemeanors. OAG 78-224 .

In requiring that the citation shall provide that defendant shall appear within a designated time, this section mandates that the peace officer issuing the citation must fill in appropriate blanks on the citation indicating precisely the date he must appear in District Court. OAG 78-249 .

The legislative purpose is to give defendants a chance, in minor infractions of the law, to voluntarily walk into court without having to be summoned or arrested under a warrant. OAG 78-249 .

Where the defendant makes his appearance in District Court on the date mentioned in the citation, and even if the court does not hear the case on that date, the court would be violating the legislative policy to issue a summons or a warrant for his appearance on the date the court finally sets for the case; if the defendant appears voluntarily under the citation on the date designated in the citation, the court should presume that defendant will appear on a subsequent date set for trial and then if defendant does not show, a summons or warrant may be issued. OAG 78-249 .

If the peace officer has reasonable grounds to believe that the person charged with the traffic violation will not appear to answer the charge, he can arrest the defendant in good conscience, but the officer has no right to assume the defendant will not make an appearance merely because he is a nonresident. OAG 78-318 .

While a peace officer may issue a citation for a misdemeanor or violation committed in his presence, a nonpeace officer may not do so. OAG 80-34 .

There are only two (2) types of offenses as far as the law of arrest is concerned, felonies and misdemeanors, and a peace officer may make an arrest at his discretion for a misdemeanor or violation committed in his presence. OAG 80-143 (withdrawing OAG 79-395 ).

Since the county jailer and his deputies are peace officers within the provisions of KRS 446.010 , they may issue traffic citations pursuant to and in accordance with the provisions of this section for misdemeanors or violations committed in their presence. OAG 80-231 .

The citation procedure employed by conservation officers for the department of fish and wildlife, whereby when one (1) officer observes a fishing violation he radios the description of the violator to a second officer in the parking area, who observes the individual to determine the make, model and license number of the individual’s vehicle, and then relays all of this information to a third officer who is parked down the road and stops the individual and issues a citation charging him with whatever violation has been observed by the first officer, is a lawful procedure since it can be said that the other conservation officers were acting as agents or were assisting the officer who had personally observed the violations. OAG 80-324 .

The practice of employing an officer in an airplane to observe speeding violations which are then communicated to other officers who cite the violator is proper under the language of subsection (1) of this section since it can be said that the officer citing the violator is acting as agent or is assisting the officer who personally observed the violation, and as such, the knowledge of the officer observing the traffic violation is imputed to the officer citing the violator. OAG 80-364 .

A peace officer may make an arrest without a warrant for an infraction of any of the six (6) statutes named in KRS 431.005(1)(e) committed in his presence, with no other condition, however, a physical arrest is not mandatory; a peace officer may make an arrest without a warrant for an infraction of any other “violation,” as classified under KRS 431.060 , committed in his presence, if he has reasonable grounds to believe that the defendant, if a citation is issued, will not appear in court at the designated time to answer the charge. OAG 80-445 .

A peace officer may issue a citation, instead of making an arrest, for an infraction of any violation or misdemeanor committed in his presence if he has reasonable grounds to believe that the person cited will appear in court to answer the charge at the designated time. OAG 80-445 .

When the peace officer who issued a traffic citation fails to appear at the defendant’s arraignment and the defendant enters an appearance and pleads “not guilty,” the District Court might place it on the trial docket, in which event the case will be tried on the date set in the docket; on the other hand, if the court had previously had an understanding with the peace officer to be in court on the date designated in the citation, and he failed to show, then the court could strike the citation from the citation docket; however, the complaining officer could procure a summons through the county attorney and start over. OAG 80-485 .

Where a peace officer issues a citation, pursuant to this section, charging a person with the violation of a city ordinance, and the person fails to appear in response to the citation, the District Court cannot acquire jurisdiction under KRS 24A.110(2) and cannot impose a fine against the person until the person is properly before the court, either by way of a voluntary personal appearance or pursuant to a warrant or summons. OAG 81-252 .

The terms “citation” and “parking ticket” do not in fact mean the same thing since a citation may only be issued by a peace officer, must be given to an identifiable person, and can only be issued if the alleged act of wrongdoing was committed in the officer’s presence; while a parking ticket may be issued by someone other than a peace officer, may merely be left on an automobile, and does not require that the issuer know the identity of the operator of the vehicle. OAG 82-6 .

A peace officer may not make an arrest for a misdemeanor or violation if the misdemeanor or violation is not committed in his presence and he may not issue a citation instead of making an arrest if the misdemeanor or violation is not committed in his presence. OAG 82-393 .

If a misdemeanor or violation committed in connection with a zoning ordinance is not committed in the presence of a peace officer, the officer would have to follow the procedures set forth in RCr 2.02 and 2.04 to obtain a warrant of arrest or summons for the violation or misdemeanor. A private person could follow such procedures to get a warrant of arrest or summons issued. OAG 82-393 .

Since a dog warden does not possess the power of a police officer unless he is made a peace officer by being appointed as such, a dog warden who has not acquired the status of a police officer cannot utilize the provisions of this section and he has no legal authority to issue a citation. OAG 82-597 .

If the county attorney or one of his assistants makes a motion to dismiss or strike several speeding citations which were issued due to radar, on the grounds that the officer who issued the citations had not been trained in the use of radar, the judge of the court could exercise his sound discretion and approve such dismissals. OAG 83-174 .

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; they have express statutory authority to arrest without a warrant any citizen whom they observe in the act of violating such laws. Since under subsection (1) of this section, 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 conservation officer may issue a citation, as authorized by subsections (1) and (2) of this section instead of making an arrest for a misdemeanor committed in the officer’s presence. OAG 83-287 .

Violation of KRS 186.610(1) is a misdemeanor for which a full custody arrest may be effected, or in the alternative, a citation may be issued in accordance with subsection (1) of this section. OAG 87-3 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

431.017. Appearance bond of prosecuting witness.

A judge, trial commissioner, or other officer issuing an arrest warrant based upon the testimony or allegations of a prosecuting witness may require the witness to post a bond in favor of the Commonwealth to secure the attendance of that witness in court in all matters relating to that particular arrest warrant. The amount of the bond shall be twenty-five dollars ($25). In the event that the prosecuting witness fails to appear and does not present valid reason therefor, the trial court shall order the forfeiture of the bond. This section shall not apply to any appeal or postconviction proceeding.

History. Enact. Acts 1982, ch. 225, § 1, effective July 15, 1982.

431.020. Jurisdiction when doubt exists as to where offense was committed. [Reenacted as KRS 452.620.]

Compiler’s Notes.

This section (1146) was reenacted as KRS 452.620 by Acts 1962, ch. 234, § 34.

431.021. Guaranteed arrest bond certificate of surety company to be accepted in lieu of cash bail in traffic cases.

  1. A guaranteed arrest bond certificate presented by the person whose signature appears thereon shall be accepted in lieu of cash bail in an amount not to exceed two hundred dollars ($200) as a bail bond to guarantee the appearance of such person in any court of this Commonwealth, at the time required by such court, when he is arrested for violation of any law of this Commonwealth or traffic ordinance of any municipality therein relating to the operation of a motor vehicle. A guaranteed arrest bond certificate so presented as a bail bond is subject to the same forfeiture and enforcement provisions as a bail bond or cash bail, but is not subject to Rules 4.30 and 4.34 of the Kentucky Rules of Criminal Procedure. However:
    1. The violation must have been committed prior to the expiration date shown on the guaranteed arrest bond certificate, and
    2. A guaranteed arrest bond certificate may not be accepted when a person is arrested for violation of KRS 189A.010 or KRS Chapter 281.
  2. As used in this section, “guaranteed arrest bond certificate” means a printed card or other certificate issued by an association to any of its members, which is signed by the member and contains a printed statement that such association and a surety company licensed to do business in this Commonwealth:
    1. Guarantee the appearance of the person whose signature appears on the card or certificate, and
    2. Will, in the event of the failure of such person to appear in court at the time set for appearance, pay any fine or forfeiture imposed upon such person in an amount not to exceed two hundred dollars ($200).

History. Enact. Acts 1962, ch. 1962, ch. 283, § 1; 1968, ch. 152, § 167; 1980, ch. 188, § 298, effective July 15, 1980; 1984, ch. 165, § 24, effective July 13, 1984.

Opinions of Attorney General.

Bail bonding by motor clubs, such as AAA, is in compliance with the statutory law in this State. OAG 78-56 .

Research References and Practice Aids

Cross-References.

Bail and recognizance, RCr 4.00 to 4.58.

431.025. Notice of intention to arrest — Act of arrest — Force.

  1. The person making an arrest shall inform the person about to be arrested of the intention to arrest him, and of the offense for which he is being arrested.
  2. An arrest is made by placing the person being arrested in restraint, or by his submission to the custody of the person making the arrest. The submission shall be in the actual presence of the arrester.
  3. No unnecessary force or violence shall be used in making an arrest.

History. Enact. Acts 1962, ch. 234, § 35.

NOTES TO DECISIONS

Analysis

1.Construction.

Former section 39 of the Code of Criminal Procedure which was identical to subsection (1) of this section was construed as requiring only a substantial compliance, and not requiring its strict observance, where it was impractical or futile or where the officer had no reasonable opportunity to comply with it. Hayes v. Commonwealth, 458 S.W.2d 3, 1970 Ky. LEXIS 159 ( Ky. 1970 ).

2.Notification of Offense.

Although the defendants were entitled to be informed of the offense for which they were being arrested, failure to so inform them was not a basis for excluding evidence concerning the arrest. Little v. Commonwealth, 438 S.W.2d 527, 1968 Ky. LEXIS 156 ( Ky. 1968 ).

Where the arresting officers were acting in an emergency and had no opportunity to inform the defendant of their intentions to arrest him for the offense of carrying a concealed deadly weapon, such arrest was valid even though defendant was not informed prior to arrest. Hayes v. Commonwealth, 458 S.W.2d 3, 1970 Ky. LEXIS 159 ( Ky. 1970 ).

The conflict in proof as to whether officers had time to inform the defendant of the reason for his arrest made it proper for the court to overrule the motion for a directed verdict and to permit the jury to consider the issue under the self-defense instruction which was given for the benefit of the defendant. Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ).

3.Submission to Custody.

An arrest was not unlawful where there was testimony that the defendant agreed to go to the police station with the police officers where a warrant was obtained and where the defendant did not disprove the testimony. Eisner v. Commonwealth, 375 S.W.2d 825, 1964 Ky. LEXIS 439 ( Ky. 1964 ).

4.Not in Custody.

Where defendant was involved in a two (2) car accident resulting in the death of the driver, defendant was asked a few questions, asked to be placed in the back seat of a police car, and voluntarily gave a breath sample, the court found that defendant was not in custody at the time the breath sample was given. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

5.Unnecessary Force.

When making an arrest, subsection (3) of this section places a duty on the arresting officer not to use unnecessary force. Lawson v. Burnett, 471 S.W.2d 726, 1971 Ky. LEXIS 259 ( Ky. 1971 ).

Where negotiations to get decedent to come out of his residence had been fruitless and a SWAT and officer-canine teams stormed decedent’s residence in order to use nonlethal force to effectuate a quick arrest of decedent who had a knife, the officers did not use excessive force in firing bean bags and live rounds at decedent after he stabbed a police dog and then attacked the canine officer. Haugh v. City of Louisville, 242 S.W.3d 683, 2007 Ky. App. LEXIS 479 (Ky. Ct. App. 2007).

6.Self-defense Instruction.

Where the assault and battery of which an officer was accused occurred in the course of an arrest, there was no need for an instruction on self-defense as such force as is necessary or reasonable to effect the arrest may be used. Lexington v. Gray, 499 S.W.2d 72, 1973 Ky. LEXIS 268 ( Ky. 1973 ).

7.Noncompliance.

Police noncompliance with this section had no bearing on the case, where the first police officer on the scene was abundantly justified in believing that defendant had just committed a felony and where defendant might have had a weapon on his person. Baker v. Commonwealth, 860 S.W.2d 760, 1993 Ky. LEXIS 89 ( Ky. 1993 ).

Notes to Unpublished Decisions

5.Unnecessary Force.

Unpublished decision: In a 42 U.S.C.S. § 1983 case in which plaintiff appealed district court's grant of summary judgment in favor of a police officer, the officer was entitled to qualified immunity because plaintiff's battery claim failed; the officer had probable cause to arrest him, and plaintiff did not allege that the officer used unnecessary force or violence in doing so. Harvey v. Carr, 616 Fed. Appx. 826, 2015 FED App. 0472N, 2015 U.S. App. LEXIS 11019 (6th Cir. Ky. 2015 ).

Opinions of Attorney General.

An officer may use that force which is necessary in order to make the arrest but he may not kill a misdemeanant unless the misdemeanant attacks him, in which case the officer may kill in self-defense. OAG 65-523 .

Where a peace officer observes a driver of a motor vehicle committing the offense of driving under the influence of alcohol and chases such driver to his home where the driver locks himself in, the peace officer, after demanding of him that he open the door or suffer the door to be forced open, has the authority to effect a forcible entry into the offender’s home in order to arrest him without a warrant for the offense. OAG 70-193 .

A police officer should not serve a warrant identifying the charge only as “Breaking and Entering” since it would not be sufficiently descriptive to inform the accused of the offense for which he is being arrested; however, warrant identifying the charge as “Breaking and Entering” with the proper Kentucky Revised Statute number would be sufficient. OAG 71-290 .

A member of a county auxiliary police force, created under KRS 70.545 (repealed), acting as a security guard or in other private employment has no power of arrest or any privileges and immunities other than those afforded a private citizen but when ordered to active duty would be classified as a “peace officer” with the power of arrest and allowed to use only that force necessary to effect arrest. OAG 74-208 .

No unnecessary force or violence shall be used in making an arrest and if such force is used, the officer may be held responsible in damages to the one he injured if he uses excessive force but to recover in a claim suit, the plaintiff must prove excessive force and its use in the performance of an official duty as distinguished from a personal act. OAG 75-498 .

Research References and Practice Aids

Cross-References.

Physical force, use in making arrest, KRS 503.090 .

Shoplifting suspect, detention and arrest, KRS 433.236 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

431.030. River or road dividing counties — Concurrent jurisdiction. [Reenacted as KRS 452.520.]

Compiler’s Notes.

This section (1143) was reenacted as KRS 452.520 by Acts 1962, ch. 234, § 36.

431.035. Aid in making arrest. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 37) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

431.040. Counties on rivers along state boundary — Concurrent jurisdiction of circuit courts. [Reenacted as KRS 452.530.]

Compiler’s Notes.

This section (1144) was reenacted as KRS 452.530 by Acts 1962, ch. 234, § 38.

431.045. Pursuit in effecting arrest.

A peace officer in actual pursuit may continue such pursuit across corporate or county lines for the purpose of making an arrest.

History. Enact. Acts 1962, ch. 234, § 39.

Opinions of Attorney General.

A third-class city ordinance restricting the use of city owned vehicles beyond one mile of the city limits except police vehicles in “hot pursuit” in felony situations is a proper exercise of legislative power and is not in conflict with any state statute concerning the law enforcement powers and duties of police. OAG 74-380 .

Where a peace officer in hot pursuit has continued across corporate or county lines, as authorized by this section, for purposes of making an arrest outside of his jurisdiction, he may properly arrest a third person who is resisting the arrest of the original offender, as prohibited by KRS 520.090 , so long as the peace officer is in uniform or otherwise acting under the color of his authority. OAG 81-152 .

While police officers of a sixth class city have a statutory obligation to rigidly enforce the provisions of KRS 189.520 , they can only enforce this statute or any other statute within their jurisdictional area of authority; generally, the jurisdiction of such police officers to arrest for offenses against the state is limited to the city limits of their particular city. However, where sixth class cities are operating under an interlocal agreement, the jurisdiction is extended to include the city limits of all of the cities which are parties to the agreement; also under the appropriate circumstances the jurisdiction of a sixth class city police officer could be expanded by the utilization of the concept of hot pursuit under this section. OAG 82-599 .

431.050. Injury in one county, death in another. [Reenacted as KRS 452.560.]

Compiler’s Notes.

This section (1147) was reenacted as KRS 452.560 by Acts 1962, ch. 234, § 40.

431.055. Pursuit to recapture escapee.

If a person lawfully arrested escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and retake him in any part of the Commonwealth and may be joined in the pursuit and recapture by peace officers in the immediate area or vicinity.

History. Enact. Acts 1962, ch. 234, § 41.

Research References and Practice Aids

Cross-References.

Use of physical force to prevent escape, KRS 503.090 .

431.060. Felonies, misdemeanors and violations defined.

Offenses are either felonies, misdemeanors, or violations:

  1. Offenses punishable by death or confinement in the penitentiary, whether or not a fine or other penalty may also be assessed, are felonies.
  2. Offenses punishable by confinement other than in the penitentiary, whether or not a fine or other penalty may also be assessed, are misdemeanors.
  3. Offenses punishable by a fine only or by any other penalty not cited herein, whether in combination with a fine or not, are violations.

History. 1127: amend. Acts 1980, ch. 309, § 3, effective July 1, 1980.

NOTES TO DECISIONS

1.Felony.

A felony is a crime which is declared to be so by the statutory or common law of the jurisdiction. Blackburn v. Commonwealth, 314 Ky. 22 , 234 S.W.2d 178, 1950 Ky. LEXIS 1015 ( Ky. 1950 ).

The Kentucky legislature intended to include in its definition of “felony” only such crimes as are punishable under the civil authority of the states or union and not those with which the armed forces alone are concerned. Blackburn v. Commonwealth, 314 Ky. 22 , 234 S.W.2d 178, 1950 Ky. LEXIS 1015 ( Ky. 1950 ).

The language of KRS 45.990(3) does not have the definiteness to delineate a felony. Commonwealth v. McClure, 593 S.W.2d 92, 1979 Ky. App. LEXIS 501 (Ky. Ct. App. 1979).

2.—Army Desertion.

Desertion from the federal army is not a felony as defined in this section; thus, it was reversible error for the court to refuse to discharge the jury when, for the purpose of impeaching a defense witness’s testimony after he had denied conviction of a felony, the Commonwealth’s attorney asked the witness if he hadn’t been convicted for desertion. Blackburn v. Commonwealth, 314 Ky. 22 , 234 S.W.2d 178, 1950 Ky. LEXIS 1015 ( Ky. 1950 ).

3.Misdemeanor.

The offense of contempt of court is a misdemeanor and prosecution is limited to one (1) year. Gordon v. Commonwealth, 141 Ky. 461 , 133 S.W. 206, 1911 Ky. LEXIS 25 ( Ky. 1911 ).

Engaging in prostitution, a misdemeanor for which the maximum punishment is a fine and one (1) year jail sentence, is not an infamous crime and therefore an indictment was not required. Eisner v. Commonwealth, 375 S.W.2d 825, 1964 Ky. LEXIS 439 ( Ky. 1964 ).

4.Infamous Offenses.

Though carrying a concealed deadly weapon is an “infamous offense” which can be prosecuted only by indictment, it is a misdemeanor rather than a felony. Elkin v. Commonwealth, 269 Ky. 6 , 106 S.W.2d 83, 1937 Ky. LEXIS 549 ( Ky. 1937 ).

Cited in:

Henson v. Commonwealth, 148 Ky. 631 , 147 S.W. 399, 1912 Ky. LEXIS 516 ( Ky. 1912 ); Johnson v. Commonwealth, 443 S.W.2d 20, 1968 Ky. LEXIS 139 ( Ky. 1968 ); Commonwealth v. Lundergan, 847 S.W.2d 729, 1993 Ky. LEXIS 50 ( Ky. 1993 ); J.D.K. v. Commonwealth, 54 S.W.3d 174, 2001 Ky. App. LEXIS 589 (Ky. Ct. App. 2001); McCloud v. Commonwealth, 286 S.W.3d 780, 2009 Ky. LEXIS 152 ( Ky. 2009 ).

Opinions of Attorney General.

Where a defendant is convicted under KRS 435.230 (now repealed) but is fined, the circuit clerk is entitled to the ten dollar fee under KRS 64.020 (repealed) since the defendant was prosecuted for and convicted of a felony, regardless of the punishment actually given. OAG 70-758 .

For purposes of the Penal Code, traffic offenses will be traffic infractions and for purposes of existing law outside the Penal Code, they will be designated as either felonies or misdemeanors. OAG 74-675 .

A validly appointed deputy jailer can effect an arrest in the county if he follows the dictates of KRS 431.005 ; thus a deputy jailer can make an arrest in his county for a misdemeanor in obedience to a warrant or without a warrant when a misdemeanor, as defined in this section, has been committed in his presence; however, an arrest under the special circumstances related in KRS 431.005 (2) does not apply to a deputy jailer. A regular deputy jailer is required to be on duty in connection with the jail operations under a full and regular schedule but even if a deputy jailer is remiss in his jail duties, such would not invalidate his arrest actions if properly effected. OAG 82-422 .

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. OAG 83-67 .

KRS 431.005 , 500.020 and this section must be read together, and such a reading reveals that a law-enforcement officer may only arrest without a warrant an individual who in the officer’s presence commits a misdemeanor, an offense punishable by confinement other than in the penitentiary whether or not a fine or other penalty may also be assessed. OAG 84-258 .

Research References and Practice Aids

Cross-References.

Classification of offenses under Penal Code, KRS 532.010 .

Common law offenses abolished, KRS 500.020 .

Designation of offenses under Penal Code, KRS 532.020 .

“Felony” and “misdemeanor” defined, Penal Code, KRS 500.080 .

Kentucky Law Journal.

Brickey, An Introduction to the Kentucky Penal Code [of 1972]: A Critique of Pure Reason? 61 Ky. L.J. 624 (1973).

Coan, Classification of Offenses and Disposition of Offenders [1972 Penal Code], 61 Ky. L.J. 734 (1973).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

431.062. Detention in jail prior to trial prohibited for certain offenses, exceptions.

  1. No person shall be detained in jail prior to trial for any offense defined in KRS 431.060 , 500.080 , or 532.020 as a violation unless:
    1. He has previously failed to make a court appearance required in connection therewith; or
    2. Is a fugitive from justice.
  2. This section shall not apply to the offenses listed in KRS 431.015 or 222.202 .

History. Enact. Acts 1984, ch. 92, § 1, effective July 13, 1984; 1986, ch. 336, § 6, effective July 1, 1986.

431.063. Human trafficking victim not to be incarcerated pending trial — Exceptions.

A victim of human trafficking shall not be held in a detention center, jail, or other secure facility pending trial for an offense arising from the human trafficking situation, except where the incarceration is found to be the least restrictive alternative to securing the appearance of that person before the court or the release of the person under any other reasonable condition would be a clear threat to public safety.

History. Enact. Acts 2007, ch. 19, § 2, effective June 26, 2007.

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

431.064. Pretrial release of person arrested for assault, sexual offense, or violation of protective order — Conditions — Hearing — Victim entitled to copy of conditions of release — Entry of conditions into Law Information Network — Penalty.

  1. In making a decision concerning pretrial release of a person who is arrested for a violation of KRS Chapter 508 or 510, or charged with a crime involving a violation of an order of protection as defined in KRS 403.720 and 456.010 , the court or agency having authority to make a decision concerning pretrial release shall review the facts of the arrest and detention of the person and determine whether the person:
    1. Is a threat to the alleged victim or other family or household member; and
    2. Is reasonably likely to appear in court.
  2. Before releasing a person arrested for or charged with a crime specified in subsection (1) of this section, the court shall make findings, on the record if possible, concerning the determination made in accordance with subsection (1) of this section, and may impose conditions of release or bail on the person to protect the alleged victim of domestic violence or abuse and to ensure the appearance of the person at a subsequent court proceeding. The conditions may include:
    1. An order enjoining the person from threatening to commit or committing acts of domestic violence or abuse against the alleged victim or other family or household member;
    2. An order prohibiting the person from harassing, annoying, telephoning, contacting, or otherwise communicating with the alleged victim, either directly or indirectly;
    3. An order directing the person to vacate or stay away from the home of the alleged victim and to stay away from any other location where the victim is likely to be;
    4. An order prohibiting the person from using or possessing a firearm or other weapon specified by the court;
    5. An order prohibiting the person from possession or consumption of alcohol or controlled substances;
    6. Any other order required to protect the safety of the alleged victim and to ensure the appearance of the person in court; or
    7. Any combination of the orders set out in paragraphs (a) to (f) of this subsection.
  3. If conditions of release are imposed, the court imposing the conditions on the arrested or charged person shall:
    1. Issue a written order for conditional release; and
    2. Immediately distribute a copy of the order to pretrial services.
  4. The court shall provide a copy of the conditions to the arrested or charged person upon release. Failure to provide the person with a copy of the conditions of release does not invalidate the conditions if the arrested or charged person has notice of the conditions.
  5. If conditions of release are imposed without a hearing, the arrested or charged person may request a prompt hearing before the court to review the conditions. Upon request, the court shall hold a prompt hearing to review the conditions.
  6. The victim, as defined in KRS 421.500 , of the defendant’s alleged crime, or an individual designated by the victim in writing, shall be entitled to a free certified copy of the defendant’s conditions of release, or modified conditions of release, upon request to the clerk of the court which issued the order releasing the defendant. The victim or the victim’s designee may personally obtain the document at the clerk’s office or may have it delivered by mail.
  7. The circuit clerk or the circuit clerk’s designee, in cooperation with the court that issued the order releasing the defendant, shall cause the conditions of release to be entered into the computer system maintained by the clerk and the Administrative Office of the Courts within twenty-four (24) hours following its filing, excluding weekends and holidays. Any modification of the release conditions shall likewise be entered by the circuit clerk, or the circuit clerk’s designee.
  8. The information entered under this section shall be accessible to any agency designated by the Department of Kentucky State Police as a terminal agency for the Law Information Network of Kentucky.
  9. All orders issued under this section which require entry into the Law Information Network of Kentucky shall be entered on forms prescribed by the Administrative Office of the Courts. If the conditions of pretrial release are contained in an order which is narrative in nature, the prescribed form shall be used in addition to the narrative order.
  10. Any person who violates any condition of an order issued pursuant to this section is guilty of a Class A misdemeanor.

History. Enact. Acts 1996, ch. 345, § 5, effective July 15, 1996; 2000, ch. 400, § 3, effective July 14, 2000; 2007, ch. 85, § 309, effective June 26, 2007; 2015 ch. 102, § 44, effective January 1, 2016.

NOTES TO DECISIONS

1.Search and Seizure.

Corporation’s search of a pretrial detainee by requiring the detainee to provide a urine sample under its “direct observation” method was reasonable because (1) the detainee had a significantly reduced expectation of privacy because the detainee was on pre-trial release awaiting criminal prosecution and, as a condition of such release, had agreed to undergo drug testing, and (2) the government had a compelling interest in insuring the accuracy of the drug testing by preventing the detainee from giving a false specimen. Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695, 2011 FED App. 0085P, 2011 U.S. App. LEXIS 6881 (6th Cir. Ky. 2011 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

431.065. Attempt to commit offense — Penalties. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 108) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 .

431.066. Pretrial release and bail options of verified and eligible defendant — Assessment of flight risk, likelihood of appearing at trial, and risk of danger — Credit toward bail for time in jail.

  1. For purposes of this section, “verified and eligible defendant” means a defendant who pretrial services is able to interview and assess, and whose identity pretrial services is able to confirm through investigation.
  2. When a court considers pretrial release and bail for an arrested defendant, the court shall consider whether the defendant constitutes a flight risk, is unlikely to appear for trial, or is likely to be a danger to the public if released. In making this determination, the court shall consider the pretrial risk assessment for a verified and eligible defendant along with the factors set forth in KRS 431.525 .
  3. If a verified and eligible defendant poses low risk of flight, is likely to appear for trial, and is not likely to be a danger to others, the court shall order the defendant released on unsecured bond or on the defendant’s own recognizance subject to such other conditions as the court may order.
  4. If a verified and eligible defendant poses a moderate risk of flight, has a moderate risk of not appearing for trial, or poses a moderate risk of danger to others, the court shall release the defendant under the same conditions as in subsection (3) of this section but shall consider ordering the defendant to participate in global positioning system monitoring, controlled substance testing, increased supervision, or such other conditions as the court may order.
    1. Except as provided in paragraph (b) of this subsection, regardless of the amount of the bail set, the court shall permit the defendant a credit of one hundred dollars ($100) per day as a payment toward the amount of the bail set for each day or portion of a day that the defendant remains in jail prior to trial. Upon the service of sufficient days in jail to have sufficient credit to satisfy the bail, the defendant shall be released from jail on the conditions specified in this section or in this chapter. (5) (a) Except as provided in paragraph (b) of this subsection, regardless of the amount of the bail set, the court shall permit the defendant a credit of one hundred dollars ($100) per day as a payment toward the amount of the bail set for each day or portion of a day that the defendant remains in jail prior to trial. Upon the service of sufficient days in jail to have sufficient credit to satisfy the bail, the defendant shall be released from jail on the conditions specified in this section or in this chapter.
    2. The provisions of paragraph (a) of this subsection shall not apply to:
      1. Any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, KRS 529.100 involving commercial sexual activity, KRS 530.020 , 530.064(1)(a), 531.310 , or 531.320 , or who is a violent offender as defined in KRS 439.3401 ; or
      2. A defendant who is found by the court to present a flight risk or to be a danger to others.
    3. For purposes of this subsection, “a day or portion of a day” means any time spent in a detention facility following booking.
    4. A defendant shall not earn credit pursuant to paragraph (a) of this subsection while also earning credit pursuant to KRS 534.070 .
  5. If a court determines that a defendant shall not be released pursuant to subsection (5) of this section, the court shall document the reasons for denying the release in a written order.
  6. The jailer shall be responsible for tracking the credit earned by a defendant pursuant to subsection (5) of this section.

History. Enact. Acts 2011, ch. 2, § 48, effective June 8, 2011; 2012, ch. 156, § 1, effective July 12, 2012.

431.067. Participation in global positioning monitoring system program as condition of pretrial release.

When considering the pretrial release of a person whose pretrial risk assessment indicates he or she is a moderate or high risk defendant, the court considering the release may order as a condition of pretrial release that the person participate in a global positioning monitoring system program under the same terms and conditions provided in KRS 431.517 during all or part of the person’s period of pretrial release.

History. Enact. Acts 2011, ch. 2, § 45, effective June 8, 2011.

431.068. Use of alcohol monitoring device as condition of pretrial release.

When considering the pretrial release of a person whose pretrial risk assessment indicates he or she is a moderate-risk or high-risk defendant, the court considering the release may order as a condition of pretrial release that the person use an alcohol monitoring device during all or part of the person’s period of pretrial release. All costs associated with the alcohol monitoring device, including administrative and operating costs, shall be paid by the defendant. As used in this section, “alcohol monitoring device” means an electronic device that:

  1. Tests for alcohol concentration level through scheduled, random, continuous, or on-demand testing;
  2. Detects and records tampering attempts; and
  3. Transmits the data by means of either a telephone line or cellular uplink, or records the data for retrieval through methods approved by the court.

History. Enact. Acts 2014, ch. 141, § 1, effective July 15, 2014.

431.070. When death penalty imposed — Punishment of common-law offense. [Repealed.]

Compiler’s Notes.

This section (1127) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 500.020 , 532.030 .

431.073. Certain felony convictions may be vacated and the records expunged — Application — Hearing — Vacating conviction without a hearing — Order to vacate and expunge — Application form — Fees — Retroactivity.

  1. Any person who has been:
    1. Convicted of a Class D felony violation of KRS 17.175 , 186.990 , 194A.505 , 194B.505 , 217.181 , 217.207 , 217.208 , 218A.140 , 218A.1415 , 218A.1416 , 218A.1417 , 218A.1418 , 218A.1423 , 218A.1439 , 218A.282 , 218A.284 , 218A.286 , 218A.320 , 218A.322 , 218A.324 , 218A.500 , 244.165 , 286.11-057 , 304.47-025 , 324.990 , 365.241 , 434.155 , 434.675 , 434.850 , 434.872 , 511.040 , 512.020 , 514.030 , 514.040 , 514.050 , 514.060 , 514.065 , 514.070 , 514.080 , 514.090 , 514.100 , 514.110 , 514.120 , 514.140 , 514.150 , 514.160 , 516.030 , 516.060 , 516.090 , 516.108 , 517.120 , 518.040 , 522.040 , 524.100 , 525.113 , 526.020 , 526.030 , 528.020 , 528.040 , 528.050 , 530.010 , or 530.050 ;
    2. Convicted of a series of Class D felony violations of one (1) or more statutes enumerated in paragraph (a) of this subsection arising from a single incident;
    3. Granted a full pardon; or
    4. Convicted of a Class D felony, or an offense prior to January 1, 1975 which was punishable by not more than five (5) years’ incarceration, which was not a violation of KRS 189A.010 , 508.032 , or 519.055 , abuse of public office, a sex offense, or an offense committed against a child, and did not result in serious bodily injury or death; or of a series of felony offenses eligible under this paragraph; may file with the court in which he or she was convicted an application to have the judgment vacated. The application shall be filed as a motion in the original criminal case. The person shall be informed of the right at the time of adjudication.
    1. A verified application to have the judgment vacated under this section shall be filed no sooner than five (5) years after the completion of the person’s sentence, or five (5) years after the successful completion of the person’s probation or parole, whichever occurs later. (2) (a) A verified application to have the judgment vacated under this section shall be filed no sooner than five (5) years after the completion of the person’s sentence, or five (5) years after the successful completion of the person’s probation or parole, whichever occurs later.
    2. Upon the payment of the filing fee and the filing of the application, the Circuit Court clerk shall serve a notice of filing upon the office of the Commonwealth’s attorney or county attorney that prosecuted the case and the county attorney of the county where the judgment was entered. The office of the Commonwealth’s attorney or county attorney that prosecuted the case shall file a response within sixty (60) days after being served with the notice of filing. That time period may be extended for good cause, but the hearing on the application to vacate the judgment shall occur no later than one hundred twenty (120) days following the filing of the application. The inability to determine the location of the crime victim shall constitute good cause for an extension of time. No hearing upon the merits of the application shall be scheduled until the Commonwealth’s response has been filed, or if no response is received, no later than one hundred twenty (120) days after the filing of the application.
    3. In any case in which the Commonwealth objects that the application is grossly incomplete, the court shall order the person or agency originating the application to supplement the application.
  2. Upon the filing of the Commonwealth’s response to an application, or if no response is received, no later than one hundred twenty (120) days after the filing of the application, the court shall set a date for a hearing and the Circuit Court clerk shall notify the office of the Commonwealth’s attorney or county attorney that prosecuted the case. The office of the Commonwealth’s attorney or county attorney that prosecuted the case shall notify the victim of the crime, if there was an identified victim. The Commonwealth’s attorney or county attorney shall be authorized to obtain without payment of any fee information from the Transportation Cabinet regarding the crime victim’s address on file regarding any vehicle operator’s license issued to that person.
    1. In an application pursuant to subsection (1)(d) of this section, upon the filing of the Commonwealth’s response objecting to the vacating of a judgment and expungement of a record, the court shall schedule a hearing within one hundred twenty (120) days of the Commonwealth’s response. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. At the hearing at which the applicant or his or her attorney must be present, the applicant must prove by clear and convincing evidence that: (4) (a) In an application pursuant to subsection (1)(d) of this section, upon the filing of the Commonwealth’s response objecting to the vacating of a judgment and expungement of a record, the court shall schedule a hearing within one hundred twenty (120) days of the Commonwealth’s response. The prosecutor shall specify in the objection the reasons for believing a denial of the application is justified. At the hearing at which the applicant or his or her attorney must be present, the applicant must prove by clear and convincing evidence that:
      1. Vacating the judgment and expunging the record is consistent with the welfare and safety of the public;
      2. The action is supported by his or her behavior since the conviction or convictions, as evidenced that he or she has been active in rehabilitative activities in prison and is living a law-abiding life since release;
      3. The vacation and expungement is warranted by the interests of justice; and
      4. Any other matter deemed appropriate or necessary by the court to make a determination regarding the petition for expungement is met.
    2. At the hearing, the applicant may testify as to the specific adverse consequences he or she may be subject to if the application is denied. The court may hear testimony of witnesses and any other matter the court deems proper and relevant to its determination regarding the application. The Commonwealth may present proof of any extraordinary circumstances that exist to deny the application. A victim of any offense listed in the application shall have an opportunity to be heard at any hearing held under this section.
    3. If the court determines that circumstances warrant vacation and expungement and that the harm otherwise resulting to the applicant clearly outweighs the public interest in the criminal history record information being publicly available, then the original conviction or convictions shall be vacated and the records shall be expunged. The order of expungement shall not preclude a prosecutor’s office from retaining a nonpublic record for law enforcement purposes only.
  3. The court may order the judgment vacated, and if the judgment is vacated the court shall dismiss with prejudice any charges which are eligible for expungement under subsection (1) of this section or KRS 431.076 or 431.078 , and, upon full payment of the fee in subsection (11) of this section, order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if the court finds that:
    1. The person had not, June 27, 2019, had a felony conviction vacated and the record expunged pursuant to this section;
    2. The person had not in the five (5) years prior to the filing of the application to have the judgment vacated been convicted of a felony or a misdemeanor;
    3. No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
    4. For an application pursuant to subsection (1)(d) of this section, the person has been rehabilitated and poses no significant threat of recidivism.
  4. If the court has received a response from the office of the Commonwealth’s attorney or county attorney that prosecuted the case stating no objection to the application to have the judgment vacated, or if one hundred twenty (120) days have elapsed since the filing of the application and no response has been received from the victim or the office of the Commonwealth’s attorney or county attorney that prosecuted the case, the court may, without a hearing, vacate the judgment in the manner established in subsection (5) of this section.
  5. Upon entry of an order vacating and expunging a conviction, the original conviction shall be vacated and, upon full payment of the fee in subsection (11) of this section, the record shall be expunged. The court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. If the person is not prohibited from voting for any other reason, the person’s ability to vote shall be restored and the person may register to vote.
  6. An order vacating a conviction under this section shall not extend or revive an expired statute of limitations, shall not constitute a finding of legal error regarding the proceedings leading to or resulting in the conviction, shall not nullify any findings of fact or conclusions of law made by the trial court or any appellate court regarding the conviction, and shall not constitute a finding of innocence regarding the conviction.
  7. The Administrative Office of the Courts shall establish a form application to be used in filing an application to have judgment vacated and records expunged.
  8. The filing fee for an application to have judgment vacated and records expunged shall be fifty dollars ($50), which shall be deposited into a trust and agency account for deputy clerks and shall not be refundable.
    1. Upon the issuance of an order vacating and expunging a conviction pursuant to this section, the applicant shall be charged an expungement fee of two hundred fifty dollars ($250), which may be payable by an installment plan in accordance with KRS 534.020 . (11) (a) Upon the issuance of an order vacating and expunging a conviction pursuant to this section, the applicant shall be charged an expungement fee of two hundred fifty dollars ($250), which may be payable by an installment plan in accordance with KRS 534.020 .
    2. When the order is issued, the court shall set a date, no sooner than eighteen (18) months after the date of the order, by which the defendant must comply with the installment payment plan. The applicant shall be given notice of the total amount due, the payment frequency, and the date by which all payments must be made. The notice shall state that the expungement cannot be completed until full payment is received, and that if the applicant has not completed the installment payment plan by the scheduled date, he or she shall appear on that date to show good cause as to why he or she is unable to satisfy the obligations. Notwithstanding provisions of KRS 534.020 to the contrary, no applicant shall be ordered to jail for failure to complete an installment plan ordered pursuant to this section.
    3. The revenues and interest from the expungement fee shall be deposited in the expungement fund created in KRS 431.0795 .
  9. This section shall be retroactive.

HISTORY: 2016 ch. 94, § 1, effective July 15, 2016; 2019 ch. 188, § 1, effective June 27, 2019.

NOTES TO DECISIONS

1.Construction.

Based on the common meaning of single incident and its past precedent, the Court of Appeals of Kentucky concludes that the phrase “a series of Class D felony violations arising from a single incident” in Ky. Rev. Stat. Ann. § 431.073(1) refers to criminal offenses that were performed in the furtherance of an individual criminal episode and that were closely compressed in terms of time. Commonwealth v. Adams, 2017 Ky. App. LEXIS 622 (Ky. Ct. App. Oct. 13, 2017), aff'd, 599 S.W.3d 752, 2019 Ky. LEXIS 207 ( Ky. 2019 ).

Defendant's four individual thefts did not arise from a single incident for purposes of a petition for expungement where, in each instance, defendant formed a separate criminal intent to steal heifers, he proceeded to fulfill his criminal objective, he had more than sufficient time to disassociate himself from the criminal act following each theft, and thus, he had been convicted of a series of Class D felonies that had not arisen out of the same incident. Commonwealth v. Adams, 2017 Ky. App. LEXIS 622 (Ky. Ct. App. Oct. 13, 2017), aff'd, 599 S.W.3d 752, 2019 Ky. LEXIS 207 ( Ky. 2019 ).

Circuit court erred in granting defendant's motion to expunge his felony convictions because passing bad checks on four different days at three different institutions over a 10-day period simply did not constitute the “single incident,” and the fact that the charges were grouped in a single indictment did not mean they arose from a single incident. Commonwealth v. Ford, 543 S.W.3d 579, 2018 Ky. App. LEXIS 76 (Ky. Ct. App. 2018).

Court of Appeals properly reversed the trial court’s order vacating and expunging defendant’s four theft convictions because, while the convictions involved only one victim, they did not arise from a “single incident” as the phrase was commonly understood and as contemplated by the expungement statute inasmuch as each of his thefts involved a temporally discrete criminal episode where in each instance, defendant formed a separate criminal intent to steal heifers, had more than a sufficient amount of time to disassociate himself from the criminal act after each incident, a successive incident occurred when he formed a new criminal intent and completed a separate and distinct theft. Adams v. Commonwealth, 599 S.W.3d 752, 2019 Ky. LEXIS 207 ( Ky. 2019 ).

Court of Appeals properly reversed the trial court’s order vacating and expunging defendant’s four theft convictions because, while the convictions involved only one victim, they did not arise from a “single incident” as the phrase was commonly understood and as contemplated by the expungement statute inasmuch as each of his thefts involved a temporally discrete criminal episode where in each instance, defendant formed a separate criminal intent to steal heifers, had more than a sufficient amount of time to disassociate himself from the criminal act after each incident, a successive incident occurred when he formed a new criminal intent and completed a separate and distinct theft. Adams v. Commonwealth, 599 S.W.3d 752, 2019 Ky. LEXIS 207 ( Ky. 2019 ).

Circuit court properly granted defendant’s application to vacate and expunge her prior felony conviction because the use of the word “or” in the statute clearly created two classes of persons eligible to apply for expungement, and defendant fell into the more expansive class of individuals eligible to apply for expungement. Commonwealth v. Hampton, 618 S.W.3d 511, 2021 Ky. App. LEXIS 9 (Ky. Ct. App. 2021).

431.074. Index of expungement orders — Restricted access.

The Administrative Office of the Courts shall retain an index of expungement orders entered under KRS 431.073 . The index shall only be accessible to persons preparing a certification of eligibility for expungement pursuant to KRS 431.079 . If the index indicates that the person applying for expungement has had a prior felony expunged under KRS 431.073 , the person preparing the report may, notwithstanding the provisions of KRS 431.073, access the expunged record and include information from the expunged record in the certification.

HISTORY: 2016 ch. 94, § 5, effective July 15, 2016.

431.075. Common-law offenses, penalties for. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 169, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

431.076. Expungement of criminal records for those acquitted of crimes, for whom charges have been dismissed but not in exchange for a guilty plea to another charge, or against whom charges have not resulted in an indictment or an information filed by the Commonwealth's attorney — Effects of an order of expungement — Expungement by court or upon petition of person charged — Exception for records in the custody of the Department for Community Based Services.

    1. On or after July 15, 2020, if a court enters an order of acquittal of criminal charges against a person, or enters an order dismissing with prejudice all criminal charges in a case against a person and not in exchange for a guilty plea to another charge, the court shall order the record expunged upon the expiration of thirty (30) days, unless the person objects to the expungement. As used in this paragraph, “criminal charges” shall not include a traffic infraction not otherwise classified as a misdemeanor. The order expunging the records shall not require any action by the person. (1) (a) On or after July 15, 2020, if a court enters an order of acquittal of criminal charges against a person, or enters an order dismissing with prejudice all criminal charges in a case against a person and not in exchange for a guilty plea to another charge, the court shall order the record expunged upon the expiration of thirty (30) days, unless the person objects to the expungement. As used in this paragraph, “criminal charges” shall not include a traffic infraction not otherwise classified as a misdemeanor. The order expunging the records shall not require any action by the person.
    2. A person who has been charged with a criminal offense and who has been acquitted of the charges, or against whom charges have been dismissed and not in exchange for a guilty plea to another charge, and whose records have not been expunged pursuant to paragraph (a) of this subsection, may petition the court in which the disposition of the charges was made to expunge all charges.
    3. A person against whom felony charges originally filed in the District Court have not resulted in an indictment by the grand jury or in an information filed by the Commonwealth’s attorney may petition the District Court in which the charges were filed to dismiss and expunge all charges for which an indictment or information has not issued.
  1. An expungement petition brought under subsection (1)(b) or (c) of this section shall be filed no sooner than:
    1. Sixty (60) days following the order of acquittal or dismissal with prejudice by the court;
    2. Six (6) months following the date of the District Court decision to hold the matter to the grand jury; or
    3. For charges dismissed without prejudice:
      1. For felony charges, three (3) years following the date of the order of dismissal without prejudice; or
      2. For misdemeanor charges, one (1) year following the date of the order of dismissal without prejudice.
    1. If the court finds that the petition under subsection (1)(b) of this section is properly brought, the court shall grant the petition and order the expunging of the records. (3) (a) If the court finds that the petition under subsection (1)(b) of this section is properly brought, the court shall grant the petition and order the expunging of the records.
      1. If the expungement petition is brought under subsection (1)(c) of this section, the petition shall be served upon the offices of the county and Commonwealth’s attorneys that prosecuted the case. (b) 1. If the expungement petition is brought under subsection (1)(c) of this section, the petition shall be served upon the offices of the county and Commonwealth’s attorneys that prosecuted the case.
      2. Following the filing of the petition, the court shall notify the county and Commonwealth’s attorneys of an opportunity for a response to the petition. The response shall be filed within ninety (90) days after the filing of the petition.
      3. If a response is not filed, ninety (90) days after the filing of the petition the court shall dismiss the charges without prejudice and order the expunging of the records.
      4. If a response is filed, ninety (90) days after the date the response is filed, if an indictment has not issued, the court shall dismiss without prejudice the charges for which an indictment has not issued and order the expunging of the records.
  2. An order of expungement pursuant to this section shall expunge all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records, but no order of expungement pursuant to this section shall expunge records in the custody of the Department for Community Based Services. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.
    1. If an expungement is ordered under subsection (1)(a) or (b) of this section, an appellate court which issued an opinion in the case shall order the appellate case file to be sealed and also direct that the version of the appellate opinion published on the court’s Web site be modified to avoid use of the defendant’s name in the case title and body of the opinion. (5) (a) If an expungement is ordered under subsection (1)(a) or (b) of this section, an appellate court which issued an opinion in the case shall order the appellate case file to be sealed and also direct that the version of the appellate opinion published on the court’s Web site be modified to avoid use of the defendant’s name in the case title and body of the opinion.
    2. If an expungement is ordered under subsection (1)(c) of this section, an appellate court which issued an opinion in the case may, upon motion of the petitioner in the case, order the appellate case file to be sealed and also direct that the version of the appellate opinion published on the court’s Web site be modified to avoid use of the petitioner’s name in the case title and body of the opinion.
  3. After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
  4. Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.
  5. Except as provided in subsection (1)(a) of this section, this section shall be retroactive.

History. Enact. Acts 1996, ch. 374, § 1, effective July 15, 1996; 2000, ch. 426, § 1, effective July 14, 2000; 2005, ch. 99, § 648, effective June 20, 2005; 2013, ch. 69, § 16, effective June 25, 2013; 2016 ch. 94, § 2, effective July 15, 2016; 2019 ch. 188, § 2, effective June 27, 2019; 2020 ch. 45, § 1, effective July 15, 2020.

NOTES TO DECISIONS

1.Applicability.

Appellant, who pled guilty to a felony, was not eligible for expungement; trial courts only had the power to expunge certain criminal charges that had been dismissed and certain misdemeanor charges, and this power was derived from KRS 431.076 and KRS 431.078 , neither of which applied to appellant. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

Former arrestee was not entitled to expungement of records regarding charges levied against him in 1996; the charges were dismissed without prejudice after a grand jury failed to return a true bill, and KRS 431.076 only applied where charges had been dismissed with prejudice. Commonwealth v. Holloway, 225 S.W.3d 404, 2007 Ky. App. LEXIS 161 (Ky. Ct. App. 2007).

Although not as complete a remedy as expungement, KRS 17.142 was available to a former arrestee who was unable to obtain an expungement under KRS 431.076 of records of charges filed against him in 1996 because the charges were dismissed without prejudice; records could be segregated under KRS 17.142 when all charges were dismissed, regardless of whether the dismissal was without prejudice. Commonwealth v. Holloway, 225 S.W.3d 404, 2007 Ky. App. LEXIS 161 (Ky. Ct. App. 2007).

Where petitioner was charged with first-degree assault but the Commonwealth chose not to pursue the case and it was dismissed without prejudice and where petitioner, more than 10 years later, moved to expunge the case, the circuit court erred in granting the motion because KRS 431.076(1) authorized expungement only in cases that were dismissed with prejudice. Further, the circuit court was without jurisdiction to consider the matter pursuant to CR 59.05 because petitioner sought relief more than 10 years after the order of dismissal was entered. Commonwealth v. Castillo, 2011 Ky. App. LEXIS 241 (Ky. Ct. App. Dec. 16, 2011), review denied, ordered not published, 2012 Ky. LEXIS 665 (Ky. Aug. 15, 2012).

Appellee met the initial criteria for filing his motion to expunge because the charge against him was dismissed with prejudice, for purposes of KRS 431.076(1), plus he waited more than 60 days after the order was entered before moving to expunge his records in accordance with § 431.076(2). Commonwealth v. Davis, 400 S.W.3d 286, 2013 Ky. App. LEXIS 75 (Ky. Ct. App. 2013).

Court found appellee’s records were improperly expunged, held that the doctrine of in pari materia does not apply because KRS 431.076 is not inconsistent, and the statute applied because it concerns people who, like appellee, were charged with a criminal offense and the charges were subsequently dismissed with prejudice; it does not specify that the proceedings to which it refers need be criminal proceedings, and using the plain meaning of the word, the term proceedings may refer to either criminal or civil proceedings, and because there was a civil proceeding pending when the trial court entered its order granting the motion to expunge, the motion was improperly granted under the statute. Commonwealth v. Davis, 400 S.W.3d 286, 2013 Ky. App. LEXIS 75 (Ky. Ct. App. 2013).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony, and successfully completed probation, the trial court lacked statutory authority to expunge the felony conviction. After the conviction was voided pursuant to KRS 218A.275 , the voided conviction was not tantamount to a charge dismissed with prejudice for purposes of the expungement statute. Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

Circuit court properly determined that defendant’s felony charges could not be expunged because they were either dismissed without prejudice or presented “No True Bill,” defendant did not allege constitutional infractions requiring expungement, there were no factual findings that her reasons outweighed the need of the Commonwealth to retain the records, and defendant was not entitled to have her records expunged as an instance that did not have statutory authority. Rhodes v. Commonwealth, 417 S.W.3d 762, 2013 Ky. App. LEXIS 170 (Ky. Ct. App. 2013).

Trial court did not have inherent authority to grant defendant’s expungement request because that was a statutory privilege that could not be extended by judicial fiat. Alexander v. Commonwealth, 556 S.W.3d 6, 2018 Ky. App. LEXIS 134 (Ky. Ct. App. 2018).

Unpublished decision: Termination of a police officer on the basis of arrest records and court records of a domestic violence incident was error because the crime had been expunged, although witnesses who had independent and personal knowledge of the incident properly testified. Moore v. Louisville/Jefferson Cnty. Metro. Gov't, 2022 Ky. App. LEXIS 1 (Ky. Ct. App. Jan. 7, 2022).

2.Renewal of Motion.

Once all proceedings had ended concerning the matter, if appellee wanted to renew his motion to expunge, he could do so. Commonwealth v. Davis, 400 S.W.3d 286, 2013 Ky. App. LEXIS 75 (Ky. Ct. App. 2013).

3.Notice.

KRS 431.076 provides for notification of the Commonwealth Attorney, or county attorney, of a motion for expungement; the statute does not require that the victim be notified. Commonwealth v. Mattingly, 91 S.W.3d 599, 2002 Ky. App. LEXIS 2224 (Ky. Ct. App. 2002).

4.Dismissal With Prejudice.

Defendant’s record was properly expunged under KRS 431.076 after he successfully completed a felony diversion program because the trial court properly dismissed the charge against defendant with prejudice under RCr 8.04(5), as opposed to KRS 533.258(1); segregation of defendant’s records under KRS 17.142 , in contrast to expungement, was not appropriate based on the plea agreement and the legislative intent behind KRS 533.258(2). Commonwealth v. Shouse, 183 S.W.3d 204, 2006 Ky. App. LEXIS 11 (Ky. Ct. App. 2006).

Because a circuit court lost jurisdiction under CR 59.05 10 days after its entry of a final and appealable order without prejudice, it erred in entering an order nine years later that modified the order, pursuant to KRS 431.076 , to a dismissal with prejudice. Commonwealth v. Smith, 354 S.W.3d 595, 2011 Ky. App. LEXIS 210 (Ky. Ct. App. 2011).

Because the trial court’s voiding and dismissing defendant’s conviction under KRS 218A.275(9) brought that offense within the parameters of KRS 431.076 , which permitted the expungement of a charge dismissed with prejudice, expungement of defendant’s felony conviction was proper. Commonwealth v. Jones, 2012 Ky. App. LEXIS 30 (Ky. Ct. App. Feb. 10, 2012), rev'd, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

5.Effect on Later Pretrial Diversion.

Granting defendant expungement after he successfully completed a pretrial diversion program was proper as doing so would not preclude the Commonwealth from assessing defendant’s later eligibility for pretrial diversion; KRS 431.076(6) provided that defendant could move the trial court to allow others to inspect his expunged record. Commonwealth v. Shouse, 183 S.W.3d 204, 2006 Ky. App. LEXIS 11 (Ky. Ct. App. 2006).

Because a pardon did not have the effect of eliminating guilt or the fact of conviction, appellant could not maintain that he had been found not guilty of the offense or that his charges had been dismissed with prejudice under KRS 431.076(1); thus, the trial court correctly denied appellant’s motion to expunge. Harscher v. Commonwealth, 327 S.W.3d 519, 2010 Ky. App. LEXIS 235 (Ky. Ct. App. 2010).

Cited in:

Gibson v. State, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

431.078. Expungement of misdemeanor, violation, and traffic infraction records of convictions and dismissed or amended charges.

  1. Any person who has been convicted of:
    1. A misdemeanor, a violation, or a traffic infraction not otherwise classified as a misdemeanor or violation, or a series of misdemeanors, violations, or traffic infractions arising from a single incident; or
    2. A series of misdemeanors, violations, or traffic infractions not arising from a single incident;

      may petition the court in which he was convicted for expungement of his misdemeanor or violation record within that judicial district, including a record of any charges for misdemeanors, violations, or traffic infractions that were dismissed or amended in the criminal action. The person shall be informed of the right at the time of adjudication.

  2. Except as provided in KRS 218A.275(8) and 218A.276(8), the petition shall be filed no sooner than five (5) years after the completion of the person’s sentence or five (5) years after the successful completion of the person’s probation, whichever occurs later.
  3. Upon the filing of a petition, the court shall set a date for a hearing, no sooner than thirty (30) days after the filing of the petition, and shall notify the county attorney; the victim of the crime, if there was an identified victim; and any other person whom the person filing the petition has reason to believe may have relevant information related to the expungement of the record. Inability to locate the victim shall not delay the proceedings in the case or preclude the holding of a hearing or the issuance of an order of expungement.
  4. For a petition brought under subsection (1)(a) of this section, the court shall order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:
    1. The offense was not a sex offense or an offense committed against a child;
    2. The person had not in the five (5) years prior to the filing of the petition for expungement been convicted of a felony or a misdemeanor;
    3. No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
    4. The offense is not one subject to enhancement for a second or subsequent offense or the time for such an enhancement has expired.
  5. For a petition brought under subsection (1)(b) of this section, the court may order expunged all records in the custody of the court and any records in the custody of any other agency or official, including law enforcement records, if at the hearing the court finds that:
    1. The offense was not a sex offense or an offense committed against a child;
    2. The person had not in the five (5) years prior to the filing of the petition for expungement been convicted of a felony or a misdemeanor;
    3. No proceeding concerning a felony or misdemeanor is pending or being instituted against the person; and
    4. The offense is not one subject to enhancement for a second or subsequent offense or the time for such an enhancement has expired.
  6. Upon the entry of an order to expunge the records, the proceedings in the case shall be deemed never to have occurred; the court and other agencies shall cause records to be deleted or removed from their computer systems so that the matter shall not appear on official state-performed background checks; the persons and the court may properly reply that no record exists with respect to the persons upon any inquiry in the matter; and the person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application.
  7. The filing fee for a petition under this section shall be one hundred dollars ($100). The first fifty dollars ($50) of each fee collected pursuant to this subsection shall be deposited into a trust and agency account for deputy clerks and shall not be refundable.
  8. Copies of the order shall be sent to each agency or official named therein.
  9. Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of the records and only to those persons named in the petition.
  10. This section shall be deemed to be retroactive, and any person who has been convicted of a misdemeanor prior to July 14, 1992, may petition the court in which he was convicted, or if he was convicted prior to the inception of the District Court to the District Court in the county where he now resides, for expungement of the record of one (1) misdemeanor offense or violation or a series of misdemeanor offenses or violations arising from a single incident, provided that the offense was not one specified in subsection (4) and that the offense was not the precursor offense of a felony offense for which he was subsequently convicted. This section shall apply only to offenses against the Commonwealth of Kentucky.
  11. As used in this section, “violation” has the same meaning as in KRS 500.080 .
  12. Any person denied an expungement prior to June 25, 2013, due to the presence of a traffic infraction on his or her record may file a new petition for expungement of the previously petitioned offenses, which the court shall hear and decide under the terms of this section. No court costs or other fees, from the court or any other agency, shall be required of a person filing a new petition under this subsection.

History. Enact. Acts 1992, ch. 325, § 1, effective July 14, 1992; 1996, ch. 374, § 3, effective July 15, 1996; 2008, ch. 158, § 7, effective July 1, 2008; 2011, ch. 2, § 97, effective June 8, 2011; 2013, ch. 69, § 17, effective June 25, 2013; 2016 ch. 94, § 3, effective July 15, 2016.

NOTES TO DECISIONS

1.Applicability.

Appellant, who pled guilty to a felony, was not eligible for expungement; trial courts only had the power to expunge certain criminal charges that had been dismissed and certain misdemeanor charges, and this power was derived from KRS 431.076 and KRS 431.078 , neither of which applied to appellant. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

Trial court correctly denied appellant’s motion to expunge under KRS 431.078 because it only applied to the expungement of certain misdemeanor convictions and did not permit the expungement of felonies. Harscher v. Commonwealth, 327 S.W.3d 519, 2010 Ky. App. LEXIS 235 (Ky. Ct. App. 2010).

KRS 431.078 did not apply in this case because that statute concerns impingement for people who have been convicted of misdemeanors or violations, and appellee was charged with but not convicted of a felony, plus § 431.078 is quite specific as to who may have his records expunged under the statute: it states that it applies to people convicted of misdemeanors and violations, and it specifies that if criminal proceedings are pending against the person convicted, the records should not be expunged. Commonwealth v. Davis, 400 S.W.3d 286, 2013 Ky. App. LEXIS 75 (Ky. Ct. App. 2013).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony, and successfully completed probation, the trial court lacked statutory authority to expunge the felony conviction. After the conviction was voided pursuant to KRS 218A.275 , the voided conviction was not tantamount to a charge dismissed with prejudice for purposes of the expungement statute. Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

Circuit court properly denied defendant’s requests to expunge his three violations of Ky. Rev. Stat. Ann. § 218A.1421(2)(a) where he did not contest that Ky. Rev. Stat. Ann. § 431.078(4)(d) effectively precluded expungement of his convictions at issue. Fisher v. Commonwealth, 599 S.W.3d 890, 2020 Ky. App. LEXIS 35 (Ky. Ct. App. 2020).

2.Findings.

Circuit court erred in denying defendant’s motion to expunge the misdemeanor charge against her because it only reviewed whether the felony counts could be expunged, and made no specific findings pertaining to the statutory requirements or whether defendant satisfied the requirements for expungement of her misdemeanor conviction. Rhodes v. Commonwealth, 417 S.W.3d 762, 2013 Ky. App. LEXIS 170 (Ky. Ct. App. 2013).

Cited in:

Flynt v. Commonwealth, 105 S.W.3d 415, 2003 Ky. LEXIS 116 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

431.079. Petition or application seeking expungement to include certification of eligibility for expungement from Department of Kentucky State Police and Administrative Office of the Courts — Administrative regulations — Construction.

  1. Every petition or application filed seeking expungement of a conviction shall include a certification of eligibility for expungement. The Department of Kentucky State Police and the Administrative Office of the Courts shall certify that the agencies have conducted a criminal background check on the petitioner and whether or not the petitioner is eligible to have the requested record expunged. The Department of Kentucky State Police shall promulgate administrative regulations to implement this section, in consultation with the Administrative Office of the Courts.
  2. Nothing in this section shall be construed to prohibit the expungement of a case ordered by a court of competent jurisdiction.
  3. For the purposes of this section, KRS 431.073 , 431.076 , and 431.078 , “expungement” means the removal or deletion of records by the court and other agencies which prevents the matter from appearing on official state-performed background checks.

History. Enact. Acts 2013, ch. 69, § 15, effective June 25, 2013; 2016 ch. 94, § 4, effective July 15, 2016; 2019 ch. 188, § 3, effective June 27, 2019.

Legislative Research Commission Notes.

(6/25/2013). Although 2013 Ky. Acts ch. 69, sec. 15, subsec. (2) defines expungement for the purposes of “this section and Sections 2 and 3 of this Act” (KRS 346.040 and 346.135 ), the references have been codified as “this section and KRS 431.076 and 431.078 ” (2013 Ky. Acts ch. 69, secs. 16 and 17) under the authority of KRS 7.136(1)(h), in order to correct a manifest typographical or clerical error that occurred when the provisions of House Bill 57/HCS were drafted as an amendment to Senate Bill 78, but the internal references were not changed to conform.

431.0795. Expungement fund.

  1. There is hereby created in the State Treasury a fund designated the “expungement fund.”
  2. The fund shall be administered by the Justice and Public Safety Cabinet.
  3. Beginning on June 27, 2019, the revenues and interest from the expungement fee imposed by KRS 431.073 shall be deposited in the fund.
  4. On January 1, April 1, July 1, and October 1 of each year, the balance of the fund shall be distributed as follows:
    1. Ten percent (10%) shall be distributed to the Department for Libraries and Archives;
    2. Forty percent (40%) shall be distributed to the Department of Kentucky State Police;
    3. Forty percent (40%) shall be equally distributed among the offices of Commonwealth’s attorneys; and
    4. Ten percent (10%) shall be distributed to the Administrative Office of the Courts to be deposited into the trust and agency account for deputy circuit clerks along with the fee established in KRS 431.073(10).
  5. All interest earned on moneys in the fund shall be credited to the fund and shall not lapse.
  6. Notwithstanding KRS 45.229 , fund amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward into the next fiscal year.
  7. Moneys deposited in the fund are hereby appropriated for the purposes set forth in this section and shall not be appropriated or transferred by the General Assembly for any other purposes.

HISTORY: 2019 ch. 188, § 4, effective June 27, 2019.

431.080. Conviction of felony does not bar civil remedy.

The conviction of a felony shall not stay or merge any civil remedy of the person aggrieved against the felon.

History. 1127.

Research References and Practice Aids

Cross-References.

Injury of person by violation of statute, recovery of damages where fine or forfeiture imposed, KRS 446.070 .

431.082. Civil action by victim against defendant — Damages — Construction.

  1. In the event of the conviction of a defendant for the violation of any offense proscribed by KRS Chapter 510 or 531 or any human trafficking offense proscribed by KRS Chapter 529, the person who was the victim of the offense may bring an action in damages against the defendant in the criminal case.
  2. If the plaintiff prevails, he or she shall be entitled to attorney’s fees and all other costs incurred in the bringing of the action, including but not limited to the services of expert witnesses, testing and counseling, medical and psychological treatment, and other expenses reasonably incurred as a result of the criminal act.
  3. Any award of nominal damages shall support an award of attorneys fees and costs to the prevailing party.
  4. Punitive damages as well as compensatory damages shall be awardable in cases brought under this section.
  5. The provisions of this section shall not be construed as repealing any provision of KRS 431.080 or any other applicable statute or of any statutory or common law right of action but shall be construed as ancillary and supplemental thereto.

History. Enact. Acts 1998, ch. 606, § 165, effective July 15, 1998; 2013, ch. 25, § 22, effective June 25, 2013.

431.090. Limitation of prosecutions and of actions to recover penalties. [Repealed.]

Compiler’s Notes.

This section (1138) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 500.050 .

431.095. Process, execution on Sunday.

Process on a charge of treason or felony, for a riot or breach of the peace, or upon an escape out of custody, may be executed on Sunday.

History. 4567.

Compiler’s Notes.

This section was formerly compiled as KRS 455.120 .

Research References and Practice Aids

Cross-References.

Custody, escape from, KRS 440.030 , 520.020 to 520.040 .

Execution generally, KRS 70.075 to 70.110 .

Felony, KRS 431.060 , 500.080 , 532.010 , 532.020 .

Process, KRS 70.075 , 454.125 to 454.145 .

Riot, KRS 525.010 to 525.040 .

Treason, Const., § 229.

431.100. Withholding of money payable by Commonwealth to defendant in satisfaction of money judgment in criminal proceeding — Fines and forfeitures go to Commonwealth — Disposition of fines from offenses relating to alcohol and to criminal littering — Monetary penalties payable to person other than circuit clerk — Notice to defendant required.

  1. When a money judgment is entered against a defendant in a criminal proceeding and each sum, or any part thereof, remains unpaid, there shall be withheld from any disbursement, payment, benefit, compensation, salary, or other transfer of money from the Commonwealth of Kentucky to such defendant an amount equal to the unpaid amount of the judgment. Under no circumstances shall the general fund be used to reimburse court costs or pay for judgment.
  2. Except as provided in this section, all fines and forfeitures imposed by law or ordinance shall inure to and vest in the Commonwealth.
  3. Fines and forfeitures imposed by law for violation of KRS 222.202 or ordinances relating to similar subject matter shall inure to and vest in the Commonwealth and shall be placed in a special fund in the State Treasury, which shall not lapse, and which, effective July 1, 1987, shall be used solely by the Cabinet for Health and Family Services for the provision of treatment and counseling programs for alcoholics.
  4. Sixty percent (60%) of fines for violation of KRS 512.070 , 433.753 , and 433.757 shall, when collected, be transferred by the circuit clerk to the county treasurer for inclusion in the general fund of the county in which the offense occurs for the cleanup and abatement of litter and open dumps and forty percent (40%) shall be transferred to the agency that issued the citation. One hundred percent (100%) of any fines imposed for the violation of KRS 224.40-100 (5) and 224.99-010 (10) shall, when collected, be transferred to the treasurer of the county in which the violation occurred.
  5. The court shall not order a fine, forfeiture, service fee, cost, or any other money due the Commonwealth or any other public officer paid to any person or organization other than one specifically required by the Kentucky Revised Statutes, nor shall a court suspend payment of a fine, forfeiture, service fee, cost, or any other money due the Commonwealth if the defendant makes a payment to another person or organization, unless so authorized by the court and the Kentucky Revised Statutes.
  6. When, as authorized in the Kentucky Revised Statutes, a court does order a fine, forfeiture, service fee, cost, or any other monetary penalty to be paid to a person other than the circuit clerk, notice of this order will be served on the defendant and a copy of the order will be delivered to the person. Such an order constitutes a judgment of the court and carries with it all lawful means of enforcement and collection.

History. 1139: amend. Acts 1962, ch. 234, § 42; 1964, ch. 125, § 34; 1966, ch. 255, § 283; 1976 (Ex. Sess.), ch. 14, § 438, effective January 2, 1978; 1986, ch. 336, § 8, effective July 1, 1986; 1992, ch. 234, § 1, effective July 14, 1992; 1992, ch. 463, § 64, effective July 14, 1992; 1996, ch. 358, § 6, effective July 15, 1997; 1998, ch. 426, § 600, effective July 15, 1998; 2002, ch. 183, § 25, effective August 1, 2002; 2002, ch. 342, § 12, effective July 15, 2002; 2005, ch. 99, § 649, effective June 20, 2005; 2021 ch. 137, § 5, effective June 29, 2021.

Compiler’s Notes.

Section 67 of Acts 1996, ch. 358 read:

“The following effective date implementation schedule shall apply to this Act:

“(1) Implementation of procedural provisions relating to the trial or adjudication of juveniles, other than assignment of juveniles to the custody or jurisdiction of the Department of Juvenile Justice shall become effective July 15, 1997;

“(2) Implementation on release and sharing of juvenile records, other than provisions relating specifically to the Administrative Office of the Courts, normal effective date for 1996 legislation;

“(3) Creation of the Department of Juvenile Justice, authority to form the department and staff and train employees, normal effective date for 1996 legislation, however all functions assigned to the department shall become effective July 1, 1997;

“(4) Transfer of personnel, facilities, and funds from the Cabinet for Human Resources to the Department of Juvenile Justice, authority to take action on the normal effective date for 1996 legislation, however all actions required to implement the provisions of this Act shall be taken by not later than July 1, 1997;

“(5) Transfer or record-keeping functions to the Administrative Office of the Courts, records possessed by the Administrative Office of the Courts on the effective date of this Act and thereafter shall be governed by the provisions of this Act on the normal effective date for 1996 legislation, however all matters for record sharing and interagency record availability shall be fully implement not later than July 15, 1998; and

“(6) Implementation of any provision not otherwise specified shall become effective July 15, 1997.”

An act (Acts 1964, ch. 125) imposing a tax on criminal convictions for a jail building fund and amending this section, KRS 26.430 (repealed) and 26.530 (repealed) was held unconstitutional in Driver v. Sawyer, 392 S.W.2d 52 ( Ky. 1965 ). Said act was repealed by Acts 1966, ch. 255, § 283.

Legislative Research Commission Notes.

(7/15/2002). This section was amended by 2002 Ky. Acts chs. 183 and 342. Where these acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 342, which was last enacted by the General Assembly, prevails under KRS 446.250 .

(7/15/96). Under 1996 Ky. Acts ch. 358, sec. 67(1), the amendment of this statute by Section 6 of that Act becomes effective July 15, 1997.

NOTES TO DECISIONS

1.Constitutionality.

A 1964 act that amended this section (Acts 1964, ch. 125, repealed by Acts 1966, ch. 255, § 283) providing for a tax of $2 on each conviction in a criminal case, except for a parking violation, in any court in a county containing a city of the first class, the proceeds of which were to go to the county jail building fund, violated Const., § 171 requiring a state tax to be on a statewide basis and Const., § 181 limiting a county tax to ad valorem and license taxes and barring the General Assembly from imposing taxes for the purposes of any county. Driver v. Sawyer, 392 S.W.2d 52, 1965 Ky. LEXIS 260 ( Ky. 1965 ).

2.Application.

The distribution of fines and forfeitures contemplated by this section is confined to fines and forfeitures for the prosecution of misdemeanants by means of penal actions or indictments, and is not applicable to all kinds of fines and forfeitures. Miller v. Franklin County, 302 Ky. 652 , 195 S.W.2d 315, 1946 Ky. LEXIS 735 ( Ky. 1946 ).

3.Recovery of Fines.

Where law provides that a fine imposed on a railway company for failure to give statutory signal at grade crossings is “to be recovered by indictment,” such fine can only be recovered by indictment and not by penal action. Commonwealth v. Louisville & N. R. Co., 37 S.W. 589, 18 Ky. L. Rptr. 610 (1896).

A law which provides that a fine be recovered by an action in the name of the Commonwealth does not preclude collection of fine by indictment as an indictment is an action. Commonwealth v. Spiller, 165 Ky. 758 , 178 S.W. 1089, 1915 Ky. LEXIS 610 ( Ky. 1915 ).

An action to recover a fine is not a civil but a penal action, and no judgment for imprisonment can be recovered in the action. Commonwealth v. American Express Co., 167 Ky. 685 , 181 S.W. 353, 1916 Ky. LEXIS 470 ( Ky. 1916 ).

4.—Cities.

A city of the fifth class is not entitled to a fine resulting from a trial in the police court on warrants issued in the name of the Commonwealth, there being no statutory provision to that effect. Conover v. Commonwealth, 200 Ky. 318 , 254 S.W. 901, 1923 Ky. LEXIS 71 ( Ky. 1923 ).

5.Recovery of Forfeitures.

In absence of law to the contrary, an action to recover forfeiture is a civil action governed by the Rules of Civil Procedure. Commonwealth v. McKee, 293 Ky. 706 , 170 S.W.2d 340, 1943 Ky. LEXIS 707 ( Ky. 1943 ).

Trial court had no authority to order the forfeited bond money be paid to the Adair County Sheriff’s Office and it had to be forfeited to the Commonwealth of Kentucky; when read together, KRS 30A.120 and 431.100 controlled the disposition of forfeited bonds and required that the money be paid to the Commonwealth. Coomer v. Commonwealth, 2013 Ky. App. LEXIS 73 (Ky. Ct. App. May 3, 2013).

6.Right to Forfeited Bond.

Where a bail bond is forfeited in a police court to secure an appearance on a charge of felony, the Commonwealth is entitled to the proceeds of the forfeited bond, not the city. Reagan v. Greenfield, 182 Ky. 810 , 207 S.W. 707, 1919 Ky. LEXIS 419 ( Ky. 1919 ).

Opinions of Attorney General.

Fines imposed for violation of a county court order under KRS 189.230 are to be paid over to the commonwealth. OAG 66-380 .

If a defendant is fined in lower court and he appeals it to Circuit Court and it is upheld, the fines and costs should be collected in the Circuit Court and the clerk should forward such collections to the finance department (now finance and administration cabinet) for proper distribution to local officials. OAG 68-526 .

Fines and forfeitures imposed by the traffic division of quarterly court for violation of parking ordinances originally adopted by the city and still in effect under an urban-county government are required to be paid to the Circuit Court clerk who must turn them into the state treasury. OAG 74-219 .

In a suit to enforce a mortgage or judgment lien against real property which also secures a bail bond, the Commonwealth of Kentucky, Administrative Office of the Courts, should be named as a party to the suit to represent the Commonwealth’s interest. In addition to service on the Administrative Office of the Courts, the plaintiff should serve a copy of the complaint on the county attorney for the county in which the action is filed since the county attorney usually represents the Commonwealth in such an action. OAG 91-127 .

Research References and Practice Aids

Cross-References.

Fines and forfeitures given to particular person or object:

Compulsory school attendance law violations, to school district, KRS 159.990 .

Game and fish law fines, to game and fish fund, KRS 150.160 .

Unemployment compensation law violations, to unemployment compensation administration fund, KRS 341.295 .

Property subject to forfeiture under Penal Code, disposition, KRS 500.090 .

Venue to recover fines and forfeitures, KRS 452.405 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Capias Pro Fine; Execution for a Fine upon a Judgment of the Circuit Court in a Penal Prosecution, Form 151.30.

431.102. Service fee on certain misdemeanor convictions. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1994, ch. 396, § 16) was repealed by Acts 183, § 41, effective August 1, 2002.

431.105. State to receive fines and forfeitures for certain height, width, length, and weight violations.

Notwithstanding any other statutory provisions to the contrary, all fines and forfeitures recovered in any court as a result of a conviction for the violation of any of the provisions of KRS 189.221 , 189.222(1), or 189.270 , which violation occurred on a state-maintained highway and arrest was made by any peace officer other than a member of the Department of Kentucky State Police, Department of Highways, or Department of Vehicle Regulation, shall inure to the benefit of the state, shall be paid to the State Treasurer for the use and benefit of the Department of Highways, and no part shall be returned to the local governmental units from which they were sent. These fines and forfeitures shall be paid into the State Treasury by the court collecting same and within thirty (30) days after imposition and collection.

History. Enact. Acts 1952, ch. 148, § 1; 1962, ch. 121, § 1; 1974, ch. 74, Art. IV, §§ 20(1), 20(2); 1974, ch. 74, Art. V, § 24(1); 2007, ch. 85, § 310, effective June 26, 2007; 2009, ch. 75, § 21, effective June 25, 2009.

Opinions of Attorney General.

Where a state police officer makes an arrest for a traffic violation and brings the offender before the city police court, the fines and costs assessed by the police court of a city of the third class go to the city treasury and not to the state. OAG 62-499 .

If an arrest for a violation of KRS 189.221 , 189.222 or 189.270 is made by a state trooper, state highway agent or department of motor transportation (now Department of Vehicle Regulation) agent, the fines and taxes are treated as any other fines and are sent to the circuit court clerk who reports and forwards them to the state treasury. OAG 62-815 .

If an arrest is made by a local peace officer for a violation under KRS 189.221 , 189.222 or 189.270 , the fines recovered, as well as the taxes levied, must all be sent by the collecting court directly within 30 days after they are imposed and collected. OAG 62-815 .

Research References and Practice Aids

Cross-References.

Property subject to forfeiture under Penal Code, disposition, KRS 500.090 .

431.110. Fines and forfeitures from county and quarterly courts returned to county. [Repealed.]

Compiler’s Notes.

This section (1139a1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

431.120. Person first suing entitled to certain fines and forfeitures.

The person who first, in good faith, brings an action for and recovers judgment shall be entitled to the penalty incurred by the defendant in all cases where a part or all of the fine or forfeiture is given by law to the person suing. No action or judgment to screen the offender from a penalty, or to prevent an action for the penalty in good faith by another person, shall be available against a prosecution carried on in good faith and without collusion with the defendant.

History. 1359.

Research References and Practice Aids

Cross-References.

Claimants of property forfeited under Penal Code, requirements, KRS 500.090 .

431.130. Confinement in penitentiary, county jail or workhouse — Nature.

Prisoners sentenced to punishment by confinement in the penitentiary shall be kept at hard labor. If the punishment is imprisonment in the jail of the county, the imprisonment shall be close confinement in the jail of the county where the trial was held, unless otherwise provided. In any jurisdiction where there is a county workhouse the court may in its discretion confine the prisoner to the county workhouse instead of the county jail.

History. 1136: amend. Acts 1944, ch. 17, § 1; 1952, ch. 43, § 2; 1962, ch. 234, § 43; 1974, ch. 406, § 315.

NOTES TO DECISIONS

Cited in:

Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Opinions of Attorney General.

The Circuit or quarterly Courts may not enter any orders after the prisoners are sentenced to hard labor and delivered to the county jail, as complete jurisdiction over the prisoners is given to the county judge. OAG 63-60 .

The court order transferring prisoners to a work crew may provide that when the work crew manager returns them to the custody of the jailer, he shall be relieved of further responsibility for said prisoners until they are returned to him by the jailer. OAG 63-60 .

Where the judgment is a fine or imprisonment in the county jail, or both, and the county has no workhouse, the confinement shall be in the jail in the custody of the jailer. OAG 63-60 .

Research References and Practice Aids

Cross-References.

Corrections, KRS ch. 196.

Jails and county prisoners, KRS ch. 441.

Judgment to fix punishment, RCr 11.04.

Place of imprisonment, Penal Code, KRS 532.100 .

Penitentiaries, KRS ch. 197.

Probation and parole, KRS ch. 439.

Verdict in criminal cases, RCr 9.82 to 9.90.

431.140. Option of working prisoner at community service related project or at hard labor. [Repealed.]

Compiler’s Notes.

This section (1377, 1378: amend. Acts 1974, ch. 406, § 316; 1982, ch. 428, § 1) was repealed by Acts 1990, ch. 459, § 4, effective July 13, 1990. For present law, see KRS 533.070 .

431.150. Defendant credited for time imprisoned during inability to secure bail. [Repealed.]

Compiler’s Notes.

This section (1142a: Acts 1942, ch. 165, §§ 1, 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 532.120 .

431.155. Jail time prior to sentence to state institution to be credited against sentence — How applied. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 137, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 532.120 .

431.160. Accessory before the fact — How punishable. [Repealed.]

Compiler’s Notes.

This section (1128) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.010 to 502.060 .

431.170. Accessory after the fact — How punishable. [Repealed.]

Compiler’s Notes.

This section (1129) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.110 to 520.130 .

431.180. Confession of judgment. [Repealed.]

Compiler’s Notes.

This section (1363) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see RCr 8.08, 8.10, 8.28.

431.190. Conviction of felony — Punishment on second and third offenses. [Repealed.]

Compiler’s Notes.

This section (1130) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 532.080 .

431.200. Reparation for property stolen or damaged, from person convicted.

Any person convicted of a misdemeanor or felony for taking, injuring or destroying property shall restore the property or make reparation in damages if not ordered as a condition of probation. The court in which the conviction is had, if applied to by verified petition made within ninety (90) days of the date the sentence was pronounced, may order restitution or give judgment against the defendant for reparation in damages, and enforce collection by execution or other process. In a petition for restitution or reparation, the court shall cause the defendant, if in custody, to be brought into court, and demand of him if he has any defense to make to the petition. If he consents to the restitution or to reparation in damages in an agreed sum, the court shall give judgment accordingly. Otherwise a jury shall be impaneled to try the facts and ascertain the amount and the value of the property, or assess the damage, as the case may be. A failure to pursue this remedy shall not deprive the person aggrieved of his civil action for the injury sustained.

History. 1132, 1135: amend. Acts 1976 (Ex. Sess.), ch. 14, § 439, effective January 2, 1978; 1980, ch. 162, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.In General.

KRS 532.032 is the generally applicable statute regarding restitution procedures, and KRS 431.200 provides the procedure for a post-sentencing restitution order. Fields v. Commonwealth, 123 S.W.3d 914, 2003 Ky. App. LEXIS 291 (Ky. Ct. App. 2003).

Defendant’s restitution obligation was governed by KRS 533.030(3), not KRS 431.200 , because (1) defendant’s plea agreement specified the statute, (2) defendant was told at sentencing defendant would have to pay restitution, (3) defendant sought no pre-sentence restitution decision, and (4) defendant did not object to setting a restitution hearing. Winkle v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014), review denied, ordered not published, 2014 Ky. LEXIS 579 (Ky. Dec. 10, 2014).

Trial court had jurisdiction to order defendant to pay restitution pursuant to KRS 533.030(3), instead of KRS 431.200 , because defendant was to remain on probation until the full restitution amount was paid, so KRS 431.200 did not apply. Winkle v. Commonwealth, 2014 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 4, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014).

2.Alternative Remedies.

Law providing for restitution of property in the same court and at the same term thief is convicted is not exclusive, and failure to proceed under the law does not preclude recovery of property stolen. People's Nat'l Bank v. Jones, 249 Ky. 468 , 61 S.W.2d 17, 1933 Ky. LEXIS 557 ( Ky. 1933 ).

3.Lien Against Defendant.

Where the defendants, who had pleaded guilty to the robbery of a loan association, assigned the money and other personal property which had been in their possession at the time of their arrest to their attorney for the payment of his services, the insurer of the loan association was entitled to enforcement of the lien provided for in this section and to the money and personal property in possession of the defendants at the time of their arrest, since the arrest was prior to the assignment to the attorney. American Surety Co. v. Johnson, 214 F.2d 900, 1954 U.S. App. LEXIS 2793 (6th Cir. Ky. 1954 ).

4.Deferment.

Where the defendant was ineligible for probation, the order of the trial court directing the Corrections Cabinet (now Department of Corrections) or other custodian of the defendant or his records to notify the court of his date of release, and directing the defendant to report to the Circuit Court following his release from incarceration for the purpose of establishing a payment schedule for restitution was not imprisonment for debt in violation of Const., § 18, even though deferment is not specifically mentioned in this section. Commonwealth v. Bailey, 721 S.W.2d 706, 1986 Ky. LEXIS 310 ( Ky. 1986 ).

5.Jurisdiction.

Circuit court had subject-matter jurisdiction to order restitution after entering a final judgment sentencing defendant to imprisonment where defendant had been charged with theft by deception over $300 and being a second-degree persistent felony offender. Commonwealth v. Steadman, 411 S.W.3d 717, 2013 Ky. LEXIS 468 ( Ky. 2013 ).

Cited in:

Commonwealth v. O’Bryan, 97 S.W.3d 454, 2003 Ky. App. LEXIS 35 (Ky. Ct. App. 2003).

Opinions of Attorney General.

Since insurers do not fall within the category of victims or aggrieved persons and where an insurer does not make its payment or settlement by virtue of being directly threatened or injured by a criminal defendant, an insurance payment or settlement is not a direct loss or injury as a result of criminal activity but is an indirect “loss” resulting from a contractual arrangement between the victim and the insurer; therefore, trial courts are not authorized to order restitution or reparation directly to an insurer as part of the criminal proceeding. OAG 94-57 .

431.210. Return of property stolen if accused does not appear.

If any person indicted for stealing property, or for having stolen property in his possession, breaks jail, forfeits his recognizance, or otherwise fails to appear for trial at the proper time, the person claiming the property may make a motion in the court in which the indictment is pending for the return of the property to him. The claim shall be supported by the affidavit of the person claiming the property. The motion shall be continued for thirty (30) days before final action is taken. A notice of the motion, served upon the attorney for the Commonwealth, shall be taken as a notice served upon the person named in the indictment, and shall give the court jurisdiction of the matter. The attorney for the Commonwealth shall defend the motion. A jury shall try the facts, and if it finds in its verdict that the claimant is entitled to the possession of the property, the court shall enter judgment accordingly. The court may enforce the judgment by rule, attachment and imprisonment as in cases of contempt. The costs of the proceedings shall be paid by the claimant, for which he may have judgment and execution against the person stealing the property.

History. 1133, 1134: amend. Acts 1976 (Ex. Sess.), ch. 14, § 440, effective January 2, 1978.

431.213. Definitions for KRS 431.213, 431.2135, and 431.240.

As used in KRS 431.2135 and 431.240 :

  1. “Condemned person” means a person for whom a specific day of execution is fixed by a mandate from the Kentucky Supreme Court or a warrant signed by the Governor.
  2. “Insane” means the condemned person does not have the ability to understand:
    1. That the person is about to be executed; and
    2. Why the person is to be executed.

History. Enact. Acts 1998, ch. 606, § 156, effective July 15, 1998.

Research References and Practice Aids

Kentucky Law Journal.

Article: The Undiscovered Country: Execution Competency & Comprehending Death, 98 Ky. L.J. 263 (2009/2010).

431.2135. Procedure for challenging condemned person’s sanity.

This section shall provide the exclusive procedure for challenging a condemned person’s sanity, unless the Supreme Court of Kentucky expressly adopts a rule of court providing otherwise.

  1. A condemned person or the person’s attorney may file a motion for stay of execution on the grounds that the condemned person is insane. The motion shall be filed in the Circuit Court of the county where the condemned person is incarcerated, or the county in which the condemned person was convicted, and shall be supported by at least two (2) affidavits. The Attorney General shall file a response within the time ordered by the court.
  2. Upon receiving a motion under subsection (1) of this section, the court shall order the condemned person to be evaluated by at least two (2) licensed mental health professionals and shall order the mental health professionals to submit their written evaluation to the court within ten (10) days of the evaluation. The court shall then schedule and conduct a hearing as soon as possible to determine whether the condemned person is insane.
  3. The court shall base its determination of insanity on a preponderance of the evidence. The court’s determination may be appealed to the Supreme Court by the condemned person or the Attorney General.
  4. If the condemned person is determined to be insane, he or she shall be committed to the Kentucky Correctional Psychiatric Center. The treating psychiatrist shall then report, once each month or more frequently if the court orders, to the court and the condemned person’s counsel on the progress the condemned person has made and whether there is a substantial probability that the person will become sane. If at any time a psychiatrist treating or evaluating the person determines the person to be sane, the psychiatrist shall immediately report that fact to the court.
  5. Upon receiving a report that a condemned person has become sane, the court shall schedule an evaluation and conduct a hearing in accordance with subsections (2) and (3) of this section to determine sanity. The court’s determination may be appealed to the Supreme Court by the condemned person or the Attorney General.

History. Enact. Acts 1998, ch. 606, § 158, effective July 15, 1998.

NOTES TO DECISIONS

1.Applicability.

KRS 431.2135 did not apply to a motion to prohibit execution of the death sentence because of defendant’s mental retardation. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: The Undiscovered Country: Execution Competency & Comprehending Death, 98 Ky. L.J. 263 (2009/2010).

431.215. Conveyance of prisoner to institution of confinement.

  1. If the judgment imposes a sentence of death or confinement in the penitentiary, county jail or other institution, two (2) certified copies thereof shall be furnished forthwith to the sheriff who shall execute the same by delivering the defendant and a certified copy of the judgment to the person in charge of the penitentiary, jail or institution of confinement and making a written return thereof in the office of the circuit clerk within ten (10) days after the execution.
  2. When the judgment imposes a sentence of death or confinement in the penitentiary, the county in which the prisoner is incarcerated shall receive from the State Treasury a fee per day beginning on the day on which judgment was rendered and ending the day that the defendant is delivered to the penitentiary. The fee shall be paid to the county treasurer for use for the incarceration of prisoners as provided in KRS 441.025 .

History. 1137-2: amend. Acts 1962, ch. 234, § 44; 1976 (Ex. Sess.), ch. 14, § 441, effective January 2, 1978; 1984, ch. 415, § 11, effective July 13, 1984; 1986, ch. 382, § 2, effective July 15, 1986; 2014, ch. 94, § 1, effective July 15, 2014.

Compiler’s Notes.

This section was formerly compiled as KRS 431.230 .

A provision similar to subsection (1) of this section appears under RCr 11.22.

NOTES TO DECISIONS

1.Constitutionality.

This section is unconstitutional under Const., § 254 to the extent it allows the Commonwealth to delay reimbursement to county jails for five (5) days after entry of judgment, allowing the Commonwealth to avoid paying counties to house convicted felons awaiting transfer to state facilities for up to five days was constitutional, in light of Const., § 254, which states that Commonwealth must provide for all supplies of convicts sentenced to such facilities. Kentucky County Judge/Executive Ass'n v. Justice Cabinet, Dep't of Corrections, 938 S.W.2d 582, 1996 Ky. App. LEXIS 135 (Ky. Ct. App. 1996).

2.Department of Corrections Responsibilities.

Rule of Criminal Procedure 11.22, this section and KRS 532.100 , and §§ 253 and 254 of the Kentucky Constitution, dictate the Correction Cabinet (now Department of Corrections) must accept custody or transfer of convicted felons and parole violators, despite that body’s promulgation of a controlled intake policy pursuant to KRS 196.030 and 197.110 . Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

Correction Cabinet’s (now Department of Corrections) defense to contempt charges based on its inability to comply with orders to take custody of certain prisoners was fundamentally flawed; the Kentucky Constitution assigns the responsibility for care and custody of convicted felons to state government as a whole; therefore, state government, which bears the burden for correcting overcrowding in prisons, was not unable to perform, even if this individual agency of the government could claim otherwise. Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

Cited in:

Nolan v. Thomas, 379 S.W.2d 248, 1964 Ky. LEXIS 231 ( Ky. 1964 ).

Opinions of Attorney General.

Under the literal wording of KRS 12.010 , 12.020 and 45.452 , and 30-day payment rule established in KRS 45.453 applies to the Corrections Cabinet’s (now Department of Corrections) payment to the counties of the reimbursement fees occasioned by the detention of convicted felons in county jails, pursuant to this section; the invoices submitted by such affected counties must be consistent with subsection (2) of this section. OAG 84-357 .

Research References and Practice Aids

Cross-References.

Fee of sheriff for transporting felon, KRS 64.070 .

Powers of sheriff in conveying prisoner to penitentiary, KRS 70.060 .

431.216. Commitment of person convicted of felony. [Repealed.]

Compiler’s Notes.

This section (Acts 1970, ch. 91, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 532.100 .

431.218. Date of execution of condemned — Copy of mandate to proper officer.

When a judgment sentencing the defendant to death has been affirmed, the mandate shall fix the day of the execution as the fifth Friday following the date of the mandate of the court. The clerk of the Supreme Court shall transmit either by special messenger or by certified mail, return receipt requested, a certified copy of the mandate to the proper officer which shall be the authority of such officer to carry the mandate into effect. The officer receiving the copy shall report his action both to the governor and to the circuit court. If from any cause the execution does not take place on the day appointed in the mandate, the governor may from time to time appoint another day for execution until the sentence is carried into effect.

History. Enact. Acts 1962, ch. 234, § 45; 1974, ch. 315, § 86; 1976, ch. 62, § 126; 1980, ch. 114, § 105, effective July 15, 1980.

NOTES TO DECISIONS

1.In General.

The Governor of Kentucky’s policy concerning the signing of death warrants is strictly an executive function. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

The Governor’s policy of providing defense counsel up to three (3) days from the date of receipt of a death warrant request to respond in writing is not affected by RCr 11.42 (10), which serves as an outer time limit on the bringing of such actions and in no way affects the prerogatives of the Governor with respect to enforcement of criminal judgments. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

Federal Anti-Terrorism and Effective Death Penalty Act (28 USCS 2244) affects neither the time for filing a motion under RCr 11.42 for postconviction relief nor the Governor’s authority to set an execution date under this section. Bowling v. Commonwealth, 964 S.W.2d 803, 1998 Ky. LEXIS 26 ( Ky. 1998 ).

431.220. Execution of death sentence.

    1. Except as provided in paragraph (b) of this subsection, every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. The lethal injection shall continue until the prisoner is dead. (1) (a) Except as provided in paragraph (b) of this subsection, every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death. The lethal injection shall continue until the prisoner is dead.
    2. Prisoners who receive a death sentence prior to March 31, 1998, shall choose the method of execution described in paragraph (a) of this subsection or the method of execution known as electrocution, which shall consist of passing through the prisoner’s body a current of electricity of sufficient intensity to cause death as quickly as possible. The application of the current shall continue until the prisoner is dead. If the prisoner refuses to make a choice at least twenty (20) days before the scheduled execution, the method shall be by lethal injection.
  1. All executions of the death penalty by electrocution or lethal injection shall take place within the confines of the state penal institution designated by the Department of Corrections, and in an enclosure that will exclude public view thereof.
  2. No physician shall be involved in the conduct of an execution except to certify cause of death provided that the condemned is declared dead by another person.

History. 1137-1: amend. Acts 1974, ch. 74, Art. V, § 2; 1986, ch. 331, § 51, effective July 15, 1986; 1992, ch. 211, § 84, effective July 14, 1992; 1998, ch. 220, § 1, effective March 31, 1998.

NOTES TO DECISIONS

1.Constitutionality.

Lethal injection pursuant to KRS 431.220 is constitutional because death row inmates had not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment under the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420, 2008 U.S. LEXIS 3476 (U.S. 2008).

2.In General.

Execution by electrocution is not unconstitutionally cruel punishment. McQueen v. Parker, 950 S.W.2d 226, 1997 Ky. LEXIS 82 ( Ky. 1997 ).

Kentucky Department of Corrections was required by Kentucky law to promulgate a regulation as to all portions of the lethal injection protocol, KRS 431.220 , as the “private rights” of those individuals being executed by the Commonwealth were invariably affected by the manner in which the lethal injection was administered; the Department was not prohibited from adopting regulations to implement the death penalty through lethal injection simply because KRS 431.220 contained no express reference to the adoption of regulations. Bowling v. Ky. Dep't of Corr., 301 S.W.3d 478, 2009 Ky. LEXIS 291 ( Ky. 2009 ), writ denied, 336 S.W.3d 98, 2011 Ky. LEXIS 31 ( Ky. 2011 ).

3.Timing.

Defendant’s claim that execution by electrocution was unconstitutionally cruel punishment was not timely, where it was raised less than two (2) weeks prior to the date of his scheduled execution. McQueen v. Parker, 950 S.W.2d 226, 1997 Ky. LEXIS 82 ( Ky. 1997 ).

Research References and Practice Aids

Cross-References.

Affirmance of judgment to fix day of execution, KRS 431.218 .

Execution of criminal sentences, RCr 11.22.

431.223. Method of execution in event of unconstitutionality of KRS 431.220.

If a court holds KRS 431.220 unconstitutional, the prisoner shall be executed in the manner provided by KRS 431.220 as that statute read before March 31, 1998.

History. Enact. Acts 1998, ch. 220, § 4, effective March 31, 1998.

431.224. Retroactive applicability.

KRS 431.220 , 431.223 , 431.240 , and 431.250 shall apply retroactively to all prisoners sentenced to death before March 31, 1998.

History. Enact. Acts 1998, ch. 220, § 5, effective March 31, 1998.

431.230. Conveyance of condemned to penitentiary — Duties of sheriff and superintendent. [Reenacted as KRS 431.215.]

Compiler’s Notes.

This section (1137-2) was reenacted as KRS 431.215 by Acts 1962, ch. 234, § 44.

431.240. Time of execution — Governor to fix time in case of insanity, pregnancy, or escape — Administrative hearings — Transfer to forensic psychiatric facility in case of insanity.

  1. Unless the execution is stayed for any cause, the warden of the institution or his deputy shall proceed, on the day named in the judgment of conviction, a governor’s warrant, or an order of the court, to cause the condemned person to be executed. The execution shall take place at a time designated by the warden of the institution where the execution is to take place on the day designated in the judgment of conviction, the governor’s warrant, or an order of the court.
  2. If the condemned person is insane, as defined in KRS 431.213 or pregnant with child on the day designated for the execution, the execution shall be suspended until the condemned is restored to sanity or is delivered of child. The execution shall then take place under the warrant of the Governor and at the time designated by him, unless stayed by due process of law. If execution is suspended on the ground of insanity, the commissioner of the Department of Corrections shall transfer the condemned person to the Kentucky Correctional Psychiatric Center until the time he is restored to sanity. Any administrative hearings authorized under authority of this section shall be conducted in accordance with KRS Chapter 13B.
  3. If the condemned person escapes from custody and is recaptured after the expiration of the date fixed for the execution, the Governor, upon receiving written notice of the recapture from the warden of the institution, shall send his warrant of execution to the warden by special messenger and shall name therein the day of execution. The warden shall then proceed to the execution thereof according to the provisions of KRS 431.215 to 431.270 .
  4. When a judgment of death has not been executed on the day appointed therefor by the court, from any cause, the Governor, by a warrant under his hand and the seal of the Commonwealth, shall fix the day of the execution, which warrant shall be obeyed by the warden of the institution.

History. 1137-3, 1137-7, 1137-8: amend. Acts 1944, ch. 145, § 1; 1962, ch. 234, § 46; 1976, ch. 332, § 30; 1980, ch. 295, § 91, effective July 15, 1980; 1986, ch. 331, § 52, effective July 15, 1986; 1992, ch. 211, § 85, effective July 14, 1992; 1996, ch. 318, § 356, effective July 15, 1996; 1998, ch. 220, § 2, effective March 31, 1998; 1998, ch. 606, § 157, effective July 15, 1998.

Legislative Research Commission Notes.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 220 and 606 which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Application.

This section is not applicable to a convict given a penitentiary sentence for crime. Davidson v. Commonwealth, 174 Ky. 789 , 192 S.W. 846, 1917 Ky. LEXIS 247 ( Ky. 1917 ).

2.Authority Over Inquests.

The warden of a penitentiary may hold an inquest if he has reasonable grounds to believe that a prisoner in his custody may be insane. Barrett v. Commonwealth, 202 Ky. 153 , 259 S.W. 25, 1923 Ky. LEXIS 355 ( Ky. 1923 ).

Under this section, authority to conduct inquests is given to the sheriff and warden of the penitentiary and a private citizen is without authority to institute an inquest to determine the sanity of one under sentence of death. Stucker v. Commonwealth, 261 Ky. 618 , 88 S.W.2d 280, 1935 Ky. LEXIS 696 ( Ky. 1935 ).

Cited in:

Hodge v. Commonwealth, 116 S.W.3d 463, 2003 Ky. LEXIS 174 ( Ky. 2003 ), cert. denied, Hodge v. Kentucky, 541 U.S. 911, 124 S. Ct. 1619, 158 L. Ed. 2d 258, 2004 U.S. LEXIS 1972 (U.S. 2004), overruled in part, Leonard v. Commonwealth, 279 S.W.3d 151, 2009 Ky. LEXIS 19 ( Ky. 2009 ), overruled, Johnson v. Beckstrom, 2011 U.S. Dist. LEXIS 87066 (E.D. Ky. Aug. 5, 2011).

Research References and Practice Aids

Cross-References.

Governor’s right to pardon, Const., § 77.

431.250. Persons who may attend executions.

The following persons, and no others, may attend an execution: The executioner and the warden of the institution and his deputy or deputies and guards; the sheriff of the county in which the condemned was convicted; the commissioner of the Department of Corrections and representatives of the Department of Corrections designated by him; the physician and chaplain of the institution; a clergyman and three (3) other persons selected by the condemned; three (3) members of the victim’s family designated by the commissioner from among the victim’s spouse, adult children, parents, siblings, and grandparents; and nine (9) representatives of the news media as follows: one (1) representative from the daily newspaper with the largest circulation in the county where the execution will be conducted, one (1) representative from Associated Press Wire Service, one (1) representative from Kentucky Network, Inc., three (3) representatives for radio and television media within the state, and three (3) representatives for newspapers within the state. Use of audiovisual equipment by the representatives is prohibited during the execution. The Department of Corrections shall issue administrative regulations which govern media representation during the execution.

History. 1137-4: amend. Acts 1974, ch. 74, Art. V, § 2; 1986, ch. 156, § 1, effective July 15, 1986; 1992, ch. 211, § 86, effective July 14, 1992; 1998, ch. 220, § 3, effective March 31, 1998.

431.260. Warden’s return on judgment.

The warden of the penitentiary shall make due return, on the copy of the judgment of the court pronouncing the death sentence, of the manner, time and place of its execution by him. The return shall be filed by the clerk of the court in the papers of the case in his office.

History. 1137-5.

431.270. Delivery or burial of body.

The body of the condemned shall be delivered to any friend or relative making request for it. The expense for the return of the body to its home, not to exceed thirty dollars ($30), shall be paid out of the appropriations to the Department of Corrections. If no request is made, the body shall be buried, and the cost of the burial, not to exceed thirty dollars ($30), shall be paid out of the appropriations to the Department of Corrections.

History. 1137-6: amend. Acts 1974, ch. 74, Art. V, § 2; 1992, ch. 211, § 87, effective July 14, 1992.

Opinions of Attorney General.

The Department of Corrections may have the body of an inmate buried where no one claims it, with the cost of burial not to exceed the sum set out in this section, to be deducted from the institutional account of the inmate. OAG 70-645 .

431.350. Consumer reporting agency records restriction — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 119, § 1) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 367.310 , 367.990 .

431.400. Summons to issue in case of accidental homicide by motor vehicle.

In the case of accidental homicide by motor vehicle, when no arrest is made at the scene of the accident and a complaint is later filed against the driver, the court shall not issue a warrant for the arrest of the driver unless there is reason to believe that the driver will flee to avoid a summons or unless circumstances within the discretion of the court require the issuance of a warrant. Instead of a warrant, a summons shall be issued and served upon the driver to have him appear for arraignment and plea at a certain time.

History. Enact. Acts 1976, ch. 373, § 1.

431.410. When issuance of summons is mandatory.

The issuance of a summons rather than an arrest warrant shall be mandatory for all offenses, except for violations of KRS 189.290 , 189.393 , 189.520 , 189.580 , 511.080 or 525.070 , which are deemed violations as defined in KRS 532.020(4) and traffic infractions for which a fine only can be imposed unless the judicial officer finds that:

  1. The defendant previously has failed to respond to a citation or summons for an offense; or
  2. He has no ties to the community and there is a substantial likelihood that he will refuse to respond to a summons; or
  3. The whereabouts of the defendant are unknown and the issuance of an arrest warrant is necessary in order to subject him to the jurisdiction of the court; or
  4. Where arrest is necessary to prevent imminent bodily harm to the accused or to another; or
  5. For any other good and compelling reason as determined by the judicial officer.

History. Enact. Acts 1976, ch. 373, § 2: 1978, ch. 249, § 1, effective June 17, 1978; 1980, ch. 309, § 4, effective July 15, 1980.

NOTES TO DECISIONS

Cited in:

Commonwealth v. Terrell, 2015 Ky. LEXIS 69 (Apr. 2, 2015).

NOTES TO DECISIONS

1.Judicial Immunity.

Where plaintiff in false imprisonment suit should have, under this section, been issued a summons to appear instead of being arrested under an arrest warrant, since the alleged violation was under KRS 337.055 which carries a maximum fine of $100, the deputy clerk who issued the warrant, her supervisor and, under the doctrine of respondeat superior, the City of Louisville were not liable for issuance of the warrant under a theory of judicial immunity rather than sovereign immunity since the issuance of the warrant occurred in the due course of employment within the judicial function. Louisville v. Bergel, 610 S.W.2d 292, 1980 Ky. LEXIS 278 ( Ky. 1980 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

431.420. City police to serve warrant, when.

Any warrant issued by District Court for an offense committed within a city shall be served by the police department of that city if the warrant is to be served within the city limits.

History. Enact. Acts 1978, ch. 249, § 2, effective June 17, 1978.

Compiler’s Notes.

The Office of the Attorney General has rendered an opinion stating that this section is probably unenforceable since it conflicts with RCr 2.06 and 2.10. See OAG 83-343 .

Opinions of Attorney General.

If a warrant is issued by a District Court for an offense committed in a city, then the warrant would have to be served by the police department of the city if the warrant is to be served within the city limits, and if the district court issues a summons and places it in the hands of the sheriff, then the sheriff will have to serve the summons even though he is found in the city of his residence, but if the summons or warrant is issued by the Circuit Court, and the warrant or summons is directed to the sheriff, then the sheriff will have to serve it, regardless of whether the defendant can be found in a city or within the unincorporated area of the county. OAG 78-403 .

If the warrant is issued by a District Court for an offense committed within the city, and the defendant may be found in the unincorporated area of the county, then the District Court can place the warrant in the hands of the sheriff for service of process. OAG 78-403 .

Since the nature and purpose of the summons differs from that of the warrant and the criminal rules have made separate provisions for the summons (RCr 2.10), and the language of this section makes no apparent attempt to alter these rules, the summons may be served by any peace officer. OAG 80-662 .

A police officer of a city of the sixth class, whose jurisdiction to arrest for offenses against the state is confined to the municipal limits, has no authority to serve criminal process outside the municipal boundaries; while generally the courts may determine the particular peace officer required to serve criminal process out of their courts, they must recognize the geographical jurisdictional limitations of police officers of sixth-class cities. OAG 83-68 .

This section, providing that city police officers must serve warrants within city limits, is unenforceable, since it is in direct conflict with the law dealing with the nature and service of warrants of arrest as reflected in RCr. 2.06 and RCr. 2.10 and, under KRS 447.154 , the statute must give way to the Criminal Rules. OAG 83-343 .

The court issuing a warrant of arrest has the authority to place the warrant for service with any peace officer of the county it chooses, including the sheriff. OAG 83-343 .

A county sheriff can serve a warrant, issued by any court in his county and delivered to him for service, anywhere within his county boundaries, including city boundaries in his county and even where the offense is committed in the city. OAG 83-343 .

Uniform Traffic Citation

431.450. Uniform citation.

  1. The Department of Kentucky State Police in consultation with the Transportation Cabinet shall design, print, and distribute to all law enforcement agencies in the Commonwealth a uniform citation.
  2. The citation shall:
    1. Be approved by the Supreme Court;
    2. Consist of an original document and five (5) copies;
    3. Be serially numbered in such a manner that the year of issue and the individual citation number may be readily ascertained; and
    4. Contain such other information as may be required by the Supreme Court.
  3. The Circuit Court clerk shall maintain a system of accountability for all citations issued in accordance with rules and regulations issued by the Supreme Court to assure that citations are not wrongfully destroyed, tampered with, or otherwise compromised in any manner.
  4. All peace officers in the Commonwealth shall use the uniform citation for all violations of the traffic laws and for all felonies, misdemeanors, and violations.

History. Enact. Acts 1976 (Ex. Sess.), ch. 36, § 3; 1978, ch. 26, § 2, effective March 3, 1978; 1986, ch. 389, § 28, effective July 15, 1986; 2007, ch. 85, § 311, effective June 26, 2007.

Compiler’s Notes.

Section 5 of Acts 1976 (Ex. Sess.), ch. 36 provided that subsections (1), (2) and (3) of this section should become effective July 1, 1977 and that subsection (4) should become effective January 2, 1978.

Legislative Research Commission Notes.

Acts 1986, ch. 389, § 29(1) specifies that use of the uniform citation shall be implemented no later than January 1, 1987; § 31, however, provides that it may be implemented at any time prior to that date.

NOTES TO DECISIONS

1.Uses of Citation.

In a pre-trial hearing on a motion to suppress, the trial court could rely on statements in the uniform citation issued to defendant, even though the citation was not offered or admitted into evidence; the citation was used by both parties during the hearing, the trial court reviewed the citation, and defendant referenced it, confirmed its creation and authenticity, and asked questions from it for purposes of impeachment. Commonwealth v. Priddy, 184 S.W.3d 501, 2005 Ky. LEXIS 389 ( Ky. 2005 ), cert. denied, 549 U.S. 980, 127 S. Ct. 444, 166 L. Ed. 2d 316, 2006 U.S. LEXIS 7879 (U.S. 2006).

Opinions of Attorney General.

Constables must use a uniform traffic citation prepared by the Commonwealth. OAG 77-770 .

Since all citation forms are numbered consecutively and must be accounted for, once an officer has started filling out a citation he has committed himself to prosecuting the charge. OAG 79-558 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 15.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

431.4505. Modification of uniform citation to include alcohol concentration and testing information.

The Justice and Public Safety Cabinet shall modify the uniform citation form to include spaces where the peace officer may include:

  1. The alcohol concentration in cases of violation of KRS 189A.010 ; and
  2. Whether the defendant did take, refused to take, or was unable to take for some reason (to be specified on the citation), the alcohol concentration or drug test or tests specified by the peace officer following an arrest for violation of KRS 189A.010 .

History. Enact. Acts 1991 (1st Ex. Sess.), ch. 15, § 13, effective July 1, 1991; 2007, ch. 85, § 312, effective June 26, 2007.

431.451. Delineation of offenses for which fines may and may not be prepaid. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1978, ch. 26, § 3, effective March 3, 1978; 1980, ch. 188, § 299, effective July 15, 1980; 1986, ch. 336, § 7, effective July 1, 1986; 1988, ch. 72, § 2, effective July 15, 1988; 1988, ch. 347, § 3, effective April 10, 1988; 1988, ch. 365, § 19, effective July 15, 1988; 1990, ch. 207, § 2, effective July 13, 1990; 1990, ch. 455, § 35, effective July 13, 1990; 1990, ch. 474, § 10, effective July 13, 1990) was repealed by Acts 2000, ch. 512, § 14, effective July 14, 2000. For present law, see KRS 150.999 , 177.999 , 189.999 , 235.9995 , and 281.999 .

431.452. Prepayment of fines subject to certain conditions.

  1. An offense which is designated as subject to prepayment by specific statutory designation may be prepaid by the violator subject to the terms and conditions of the statute involved.
  2. When an offense that is not designated as subject to prepayment by specific statutory designation is cited on the same citation with another offense that is subject to prepayment, the officer shall cite the violator to court for all cited offenses. However, if the offense for which prepayment is not allowed is dismissed by the judge prior to the court date listed on the citation, the offense subject to prepayment by specific statutory designation may be prepaid by the violator, and the violator shall not be required to appear in court.
  3. An offense which is designated as subject to prepayment is subject to the following conditions:
    1. Designation as subject to prepayment does not preclude a physical arrest by a peace officer for that offense;
    2. Designation as subject to prepayment shall preclude a requirement that the defendant make a court appearance on a uniform citation;
    3. Except as provided for in KRS 189.990(26), for any offense designated as subject to prepayment, the defendant may elect to pay the minimum fine for the offense plus court costs to the circuit clerk before the date of his trial or be tried in the normal manner, unless the citation is marked for mandatory court appearance pursuant to KRS 431.015 or subsection (2) of this section, except that the fine for violations of KRS 189.221 , 189.222 , 189.226 , 189.270 , or 189.271 shall be in accordance with KRS 189.990(2)(a) and the defendant shall not be allowed to pay the minimum fine as otherwise allowed by this paragraph; and
    4. Prepayment of the fine and costs shown on the citation or accompanying schedule shall be considered as a plea of guilty for all purposes.
  4. When a peace officer issues a uniform citation and no physical arrest is made he or she shall, where the citation is designated as subject to prepayment, mark the citation as “PAYABLE”, except as provided in KRS 431.015 or subsection (2) of this section.
  5. The Administrative Office of the Courts, after consultation with the Department of Kentucky State Police, the Transportation Cabinet, the Division of Forestry, the Department of Fish and Wildlife Resources, and a representative of law enforcement shall develop a prepayable fine and cost schedule and a uniform statewide instruction sheet for the Commonwealth.

History. Enact. Acts 1978, ch. 26, § 5, effective March 3, 1978; 2000, ch. 512, § 11, effective July 14, 2000; 2006, ch. 180, § 11, effective July 12, 2006; 2007, ch. 85, § 313, effective June 26, 2007; 2008, ch. 108, § 4, effective July 15, 2008.

Legislative Research Commission Notes.

(7/12/2006). 2006 Ky. Acts ch. 95, relating to the creation and organization of the Commerce Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

431.455. Prohibitions — Penalty.

  1. No peace officer or other person shall invalidate, or attempt to invalidate, destroy or attempt to destroy a record copy of a uniform citation which has been lawfully issued.
  2. No peace officer or other person to whom uniform citations are distributed, prior to issuance to a violator, shall fail to properly account for uniform citations issued to him or to his agency as required by KRS 431.450 and the regulations issued thereunder.
  3. No person required to file reports pursuant to KRS 431.450 and the regulations issued thereunder shall fail to file the reports within the time limits specified.
  4. Any peace officer or other person who violates the provisions of this section shall be guilty of a Class B misdemeanor.

History. Enact. Acts 1976 (Ex. Sess.), ch. 36, § 4, effective January 2, 1978; 1978, ch. 26, § 4, effective March 3, 1978.

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 15.

Bail Bonds

431.510. Prohibitions.

  1. It shall be unlawful for any person to engage in the business of bail bondsman as defined in subsection (3) of this section, or to otherwise for compensation or other consideration:
    1. Furnish bail or funds or property to serve as bail; or
    2. Make bonds or enter into undertakings as surety;

      for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment or death, before any of the courts of this state, including city courts, or to secure the payment of fines imposed and of costs assessed by such courts upon a final disposition.

  2. Nothing contained herein shall serve to release any bail bondsman heretofore licensed by this state from the obligation of undischarged bail bond liability existing on June 19, 1976.
  3. “Bail bondsman” shall mean any person, partnership, or corporation engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, for the appearance of persons charged with any criminal offense or violation of law or ordinance punishable by fine, imprisonment, or death, before any of the courts of this state, or securing the payment of fines imposed and of costs assessed by such courts upon final disposition thereof, and the business of a bail bondsman shall be limited to the acts, transactions, and undertakings described in this subsection and to no other.
  4. KRS 431.510 to 431.550 shall not be construed to limit or repeal KRS 431.021 or to prevent licensed insurers providing security required by Subtitle 39 of KRS Chapter 304 and nonprofit associations from posting or causing to be posted by licensed insurers security or acting as surety for their insureds or members for an offense arising from the operation of a motor vehicle, provided that such posting of security or acting as surety is merely incidental to the terms and conditions of an insurance contract or a membership agreement and provided further that no separate premium or charge therefor is required from the insureds or members.

History. Enact. Acts 1976, ch. 2, § 1; 2004, ch. 24, § 47, effective July 13, 2004.

NOTES TO DECISIONS

1.Constitutionality.

The elimination of commercial bail bonding businesses is a constitutional exercise of the police power of the State to protect its citizens from a business found to be detrimental to their welfare. Stephens v. Bonding Asso. of Kentucky, 538 S.W.2d 580, 1976 Ky. LEXIS 64 ( Ky. 1976 ).

Inasmuch as the Bail Bonding Act of 1976 does not pertain to specific organizations or individuals, but does describe classes of activities in which individuals and corporations shall not engage, and inasmuch as the act does not provide for retroactive punishment, but provides penalties only for those who engage in the business of bailbonding after the date of the act, the act is not unconstitutional as a bill of attainder. Benboe v. Carroll, 494 F. Supp. 462, 1977 U.S. Dist. LEXIS 15395 (W.D. Ky. 1977 ), aff'd, 625 F.2d 737, 1980 U.S. App. LEXIS 17746 (6th Cir. Ky. 1980 ).

Where the constitutionality of this section had been upheld by a state Circuit Court in a class action brought by licensed bail bondsmen, the bondsmen were precluded from asserting the constitutional issue again in the federal court. Benboe v. Carroll, 494 F. Supp. 462, 1977 U.S. Dist. LEXIS 15395 (W.D. Ky. 1977 ), aff'd, 625 F.2d 737, 1980 U.S. App. LEXIS 17746 (6th Cir. Ky. 1980 ).

The Bail Bonding Act of 1976 applies equally to all citizens, whether they be residents of Kentucky or not, thus there was no merit to a claim by licensed bail bondsmen that the act violated their privileges, immunities and their equal protection rights. Benboe v. Carroll, 494 F. Supp. 462, 1977 U.S. Dist. LEXIS 15395 (W.D. Ky. 1977 ), aff'd, 625 F.2d 737, 1980 U.S. App. LEXIS 17746 (6th Cir. Ky. 1980 ).

Opinions of Attorney General.

Bail bonding by motor clubs, such as AAA, is in compliance with the statutory law in this State. OAG 78-56 .

The pretrial release legislation, KRS 431.510 to 431.550 , was designed to implement an orderly and equitable system of providing bail in bailable situations, as determined by the trial courts rather than professional bondsmen. OAG 80-318 .

This section is designed to prohibit and eliminate the commercial bail bonding business. OAG 80-318 .

A county fiscal court may not adopt rules and regulations which would close the county jail between the hours of 11 p.m. and 7 a.m. to pretrial investigation in determining bail and to the trial commissioner for establishing bail, so that an individual arrested at night would be housed for at least eight (8) hours before he could make bail, since the bail bond provisions of RCr 4.00 to RCr 4.58 and KRS 431.510 to 431.550 reflects the legislative policy that, if pretrial release is to be effected at all, it should be done quickly to preserve the presumption of innocence, and since the practical effect of excluding bail officers for the stated period would be arbitrary denial of bail contrary to Const., § 2 proscription against arbitrary action. OAG 81-299 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

431.515. Pretrial release investigation and services — Provision of information on services and programs for combat veterans.

  1. All trial courts in this Commonwealth having jurisdiction of criminal causes shall provide such pretrial release investigation and services as necessary to effectuate the purposes of KRS 431.510 to 431.550 , including KRS 431.518 , and, where practical, to assist in the earliest possible determination of:
    1. Whether a person is a needy person under KRS Chapter 31; and
    2. Whether a person has been in combat by asking the question, “Have you served in the National Guard or the United States Armed Forces and been in combat?” during the pretrial release investigation.
  2. The Supreme Court may by appropriate rule or order establish and provide for such pretrial investigation and release services including, where practical, the taking of financial statements, and the court’s determination of whether a person is a needy person as provided in KRS 31.120 .
  3. Pretrial officers shall give contact information on the Kentucky National Guard Family Services Program within the Kentucky Department of Military Affairs or similar programs which provide a full range of services for combat veterans to any person who states that he or she has been in combat, including an opportunity to call the program during the interview.

History. Enact. Acts 1976, ch. 2, § 2; 1976 (Ex. Sess.), ch. 24, § 5; 1978, ch. 27, § 1, effective June 17, 1978; 2009, ch. 96, § 2, effective March 24, 2009; 2010, ch. 145, § 1, effective July 15, 2010.

Opinions of Attorney General.

There is nothing to prevent a pretrial release agency from interviewing a defendant under the custody of the arresting officer even if the defendant has never been turned over to the county jailer, thus, where requested in that situation, they should interview the defendant and make their recommendations to the trial court of jurisdiction. OAG 80-318 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.517. Authorization for home incarceration as a form of pretrial release — Court ordered participation of global positioning monitoring system — Costs.

  1. Except as provided in this section, home incarceration may be ordered as a form of pretrial release, subject to the conditions imposed by the provisions of KRS 532.200 to 532.250 .
  2. No defendant charged with an offense under KRS Chapter 507 may be released on home incarceration unless the court makes a finding that the defendant would not pose a threat to society.
  3. A court ordering home incarceration as a form of pretrial release pursuant to this section may order the defendant to participate in a global positioning monitoring system program during all or part of the time of pretrial release through the use of a county-operated program pursuant to KRS 67.372 and 67.374 and not a program operated by the Department of Corrections pursuant to KRS 532.210 to 532.250 .
  4. A court ordering global positioning monitoring system program participation for a defendant pursuant to this section shall:
    1. Require the defendant to pay all or the part of the monitoring costs based on the sliding scale adopted by the Supreme Court of Kentucky as specified in KRS 403.761 and administrative costs for participating in the system;
    2. Provide the monitoring system with a written or electronic copy of the conditions of release; and
    3. Provide the monitoring system with a contact at the office of the circuit clerk, Commonwealth’s attorney, or county attorney, as appropriate, or pretrial release services for reporting violations of the monitoring order.
  5. A person, county, or other organization may voluntarily agree to pay all or a portion of a defendant’s monitoring costs specified in KRS 403.761 .

HISTORY: Enact. Acts 1996, ch. 45, § 1, effective July 15, 1996; 2010, ch. 170, § 11, effective July 15, 2010; 2018 ch. 115, § 9, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women’s Dignity in the Justice System Act. This statute was amended in Section 9 of that Act.

NOTES TO DECISIONS

Cited in:

McKinzie v. Commonwealth, 2018 Ky. App. LEXIS 245 (Ky. Ct. App. Oct. 5, 2018).

Research References and Practice Aids

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

431.518. Pretrial release of felony drug offender or felony offender with a history of substance abuse — Conditions.

When considering the pretrial release of a person charged with a felony offense under KRS Chapter 218A or a person charged with a felony offense whose criminal record indicates a history of recent and relevant substance abuse, the court considering the release shall cause the court’s pretrial release investigation and services office to have the person screened for recent and relevant substance abuse risk factors. A person’s refusal to participate in the screening shall not disqualify the person from being granted pretrial release. If this screening indicates the presence of recent and relevant substance abuse risk factors, the court may order as a condition of pretrial release that the person:

  1. Undertake any testing ordered by the court under KRS 431.520 or 431.525 ;
  2. Participate in an additional assessment of the person’s condition;
  3. Participate in a secular or faith-based treatment or recovery program if one (1) is identified as appropriate to the person as a result of the person’s initial assessment or an additional assessment performed under subsection (2) of this section;
  4. Appear at any subsequent hearing ordered by the court where the person’s conditions of pretrial release may be reviewed and modified as the result of any testing performed under subsection (1) of this section, any additional assessment performed under subsection (2) of this section, any additional assessment of the defendant performed by a qualified mental health professional which the defendant may offer for the court’s consideration, or the person’s compliance with any treatment or recovery plan ordered by the court under subsection (3) of this section; and
  5. Participate in a global positioning monitoring system program operated by a county pursuant to KRS 67.372 and 67.374 under the same terms and conditions as provided in KRS 431.517 , during all or part of the person’s period of release pursuant to this section.

History. Enact. Acts 2009, ch. 96, § 3, effective March 24, 2009; 2010, ch. 170, § 12, effective July 15, 2010.

431.520. Release on personal recognizance or unsecured bail bond — Conditions of release.

Any person charged with an offense shall be ordered released by a court of competent jurisdiction pending trial on his personal recognizance or upon the execution of an unsecured bail bond in an amount set by the court or as fixed by the Supreme Court as provided by KRS 431.540 , unless the court determines in the exercise of its discretion that such a release will not reasonably assure the appearance of the person as required, or the court determines the person is a flight risk or a danger to others. When such a determination is made, the court shall, either in lieu of or in addition to the above methods of release, impose any of the following conditions of release:

  1. Place the person in the custody of a designated person or organization agreeing to supervise him;
  2. Place restrictions on the travel, association, or place of abode of the person during the period of release;
  3. Require the execution of a bail bond:
    1. With sufficient personal surety or sureties acceptable to the court; in determining the sufficiency of such surety or sureties, the court shall consider his character, his place of residence, his relationship with the defendant, and his financial and employment circumstances; or
    2. With the ten percent (10%) deposit as provided in KRS 431.530 ; provided that if the defendant is permitted to earn credit toward bail pursuant to KRS 431.066 , that credit shall be applied to the ten percent (10%) deposit; or
    3. With the deposit of cash equal to the amount of the bond or in lieu thereof acceptable security as provided in KRS 431.535 ;
  4. If the person’s record indicates a history of controlled substance or alcohol abuse:
    1. Order the person to submit to periodic testing for use of controlled substances or alcohol and pay a reasonable fee, not to exceed the actual cost of the test and analysis, as determined by the court with the fee to be collected by the circuit clerk, held in an agency account, and disbursed, on court order, solely to the agency or agencies responsible for testing and analysis as compensation for the cost of the testing and analysis performed under this subsection. If the person is declared indigent, the testing fee may be waived by the court. The Administrative Office of the Courts shall establish pilot projects to implement the provisions of this subsection; or
    2. Order the person to use an alcohol monitoring device, as defined in KRS 431.068 . All costs associated with the device, including administrative and operating costs, shall be paid by the defendant. If the court determines that the defendant is indigent, and a person, county, or other organization has not agreed to pay the costs for the defendant in an attempt to reduce incarceration expenses and increase public safety, the court shall consider other conditions of release provided for in this section;
    1. During all or part of a person’s period of release pursuant to this section, order the person to participate in a global positioning monitoring system program operated by a county pursuant to KRS 67.372 and 67.374 under the same terms and conditions provided under KRS 431.517 . (5) (a) During all or part of a person’s period of release pursuant to this section, order the person to participate in a global positioning monitoring system program operated by a county pursuant to KRS 67.372 and 67.374 under the same terms and conditions provided under KRS 431.517 .
    2. If the person is charged with a sex crime as defined in KRS 17.500 , consider requiring that he or she be monitored electronically, and shall consider requiring the person be subject to home incarceration;
  5. Impose any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours;
  6. A court authorizing the release of a person pursuant to this section shall cause the issuance of an appropriate order containing a statement of the conditions imposed, if any, shall cause such person to be informed of the penalties applicable to violations of the conditions of his release, and shall cause him to be informed that a warrant for his arrest will be issued immediately upon any such violation;
  7. A person for whom conditions of release are imposed and who after twenty-four (24) hours from the time of the imposition of said conditions continues to be detained as a result of his inability to meet the conditions of release shall, upon written application or upon the court’s own motion, be entitled to have the conditions reviewed by the court which imposed them. A person who is ordered released on a condition which requires that he return to custody after specified hours shall, upon written application or upon the court’s own motion, be entitled to a review by the court which imposed the condition; or
  8. If at any time following release of a defendant and before he is required to appear for trial, the court is advised of a material change in the defendant’s circumstances or that he has not complied with all conditions imposed upon his release, the court having jurisdiction may:
    1. Order the arrest of the defendant;
    2. Enter an order requiring the defendant, his surety or sureties to appear and show cause why the bail bond should not be forfeited or the conditions of his release be changed; or
    3. Both.

A copy of said order shall be served upon the defendant, his surety or sureties. If the defendant fails to appear before the court as ordered or if, after hearing, the court finds the conditions of release have not been complied with, the court may change the conditions imposed or forfeit the bail bond or any portion thereof and enter a judgment for the Commonwealth against the defendant and his surety or sureties for the amount of the bail bond or any portion thereof and cost of the proceedings.

History. Enact. Acts 1976, ch. 2, § 3; 1998, ch. 606, § 32, effective July 15, 1998; 2006, ch. 182, § 25, effective July 12, 2006; 2010, ch. 170, § 13, effective July 15, 2010; 2012, ch. 156, § 2, effective July 12, 2012; 2014, ch. 141, § 2, effective July 15, 2014.

NOTES TO DECISIONS

1.Discretion of Court.

Even though the circuit judge has discretionary authority respecting bail, the record should clearly reflect that the circuit judge did give consideration to this section and RCr 4.10 and that the amount of any bail was determined according to the standards set forth in KRS 431.525 and RCr 4.16 (1). Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Where the order denying a motion to reduce bail reflected that the trial court considered only the nature of the offenses in fixing the amount of bail but did not consider the defendant’s length of residence in Kentucky and at his present address, his marital status, his employment record, the date and nature of his prior criminal record, or his ability to raise $75,000 in bail, where the order provided no basis for believing that $75,000 bail was the least onerous condition reasonably likely to insure defendant’s appearance at trial and where the court made no findings supporting its order, such order was reversed. Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Opinions of Attorney General.

Under this section a judge can legally direct the pretrial officer, by telephone, to use a prescribed form or draw an appropriate order of release as the judge directs, and can direct such pretrial officer to sign the judge’s name to the form release or order. OAG 77-310 .

Research References and Practice Aids

Kentucky Bench & Bar.

Davis, Kentucky’s New Court System, Vol. 40, No. 2, April 1976 Ky. Bench & B. 20.

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

431.523. Bail for nonresidents charged with driving under the influence.

  1. Bail for persons who are not residents of Kentucky who are charged with a violation of KRS 189A.010 shall be five hundred dollars ($500) unless the defendant was involved in a motor vehicle accident in which property damage or physical injury to a person was involved in which case bail shall be one thousand five hundred dollars ($1,500). In the event of serious physical injury or death the minimum amount of bail shall be five thousand dollars ($5,000).
  2. No court shall release a person charged with a violation of KRS 189A.010 who is not a resident of Kentucky without the imposition of bail as required by subsection (1) of this section. Bail in subsection (1) of this section shall be accepted in the full cash amount only, or with court approved surety for that amount, and no other form of bail shall be acceptable.

History. Enact. Acts 1984, ch. 165, § 14, effective July 13, 1984.

431.525. Conditions for establishing amount of bail — Pilot projects for controlled substance or alcohol abuse testing.

  1. The amount of the bail shall be:
    1. Sufficient to insure compliance with the conditions of release set by the court;
    2. Not oppressive;
    3. Commensurate with the nature of the offense charged;
    4. Considerate of the past criminal acts and the reasonably anticipated conduct of the defendant if released; and
    5. Considerate of the financial ability of the defendant.
  2. When a person is charged with an offense punishable by fine only, the amount of the bail bond set shall not exceed the amount of the maximum penalty and costs.
  3. When a person has been convicted of an offense and only a fine has been imposed, the amount of the bail shall not exceed the amount of the fine.
  4. When a person has been charged with one (1) or more misdemeanors, the amount of the bail for all charges shall be encompassed by a single amount of bail that shall not exceed the amount of the fine and court costs for the one (1) highest misdemeanor charged. This subsection shall apply only to misdemeanor offenses not involving physical injury or sexual contact.
  5. When a person has been convicted of a misdemeanor offense and a sentence of jail, probation, conditional discharge, or sentence other than a fine only has been imposed, the amount of bail for release on appeal shall not exceed double the amount of the maximum fine that could have been imposed for the one (1) highest misdemeanor offense for which the person was convicted. This subsection shall apply only to misdemeanors not involving physical injury or sexual contact.
  6. The provisions of this section shall not apply to a defendant who is found by the court to present a flight risk or to be a danger to others.
  7. If a court determines that a defendant shall not be released pursuant to subsection (6) of this section, the court shall document the reasons for denying the release in a written order.
  8. The Administrative Office of the Courts shall establish pilot projects to implement controlled substance or alcohol abuse testing as specified under this subsection. If the person’s record indicates a history of controlled substance or alcohol abuse, the court may order the person to submit to periodic testing for use of controlled substances or alcohol and to pay a reasonable fee, not to exceed the actual cost of the test and analysis, as determined by the court, with the fee to be collected by the circuit clerk, held in an agency account, and disbursed, on court order, solely to the agency or agencies responsible for testing and analysis as compensation for the cost of the testing and analysis performed under this subsection. If the person is declared indigent, the testing fee may be waived by the court. If the court finds the conditions of release have not been complied with, the court may change the conditions imposed or forfeit the bail bond or any portion thereof and enter a judgment for the Commonwealth against the person and his surety or sureties for the amount of the bail bond or any portion thereof and the cost of the proceedings.

History. Enact. Acts 1976, ch. 2, § 4; 1998, ch. 606, § 33, effective July 15, 1998; 2011, ch. 2, § 47, effective June 8, 2011.

NOTES TO DECISIONS

1.Discretion of Court.

Even though the circuit judge has discretionary authority respecting bail, the record should clearly reflect that the circuit judge did give consideration to KRS 431.520 and RCr 4.10 and that the amount of any bail was determined according to the standards set forth in this section and RCr 4.16 (1). Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Where the order denying a motion to reduce bail reflected that the trial court considered only the nature of the offense in fixing the amount of bail but did not consider the defendant’s length of residence in Kentucky and at his present address, his marital status, his employment record, the date and nature of his prior criminal record, or his ability to raise $75,000 in bail, where the order provided no basis for believing that $75,000 bail was the least onerous condition reasonably likely to insure defendant’s appearance at trial and where the court made no findings supporting its order, such order was reversed. Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

2.Appeal from Order.

An order overruling a motion to reduce bond is appealable. Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Since the motion to reduce bond serves the same function as a petition for a writ of habeas corpus, there is no reason why an appeal from an order overruling the motion should not be decided in the same manner as an appeal from a denial of a writ of habeas corpus. Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

Research References and Practice Aids

Kentucky Law Journal.

Notes, The Conundrum of Criminal Discovery: Constitutional Arguments, ABA Standards, Federal Rules, and Kentucky Law, 64 Ky. L.J. 800 (1975-76).

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.530. Deposit of bail security — Payments into public advocate special account — Return of deposit when innocent or charges dropped or dismissed.

  1. Any person who has been permitted to execute a bail bond in accordance with KRS 431.520(3)(b) shall deposit with the clerk of the court before which the action is pending a sum of money equal to ten percent (10%) of the bail, but in no event shall such deposit be less than ten dollars ($10) unless the defendant earned full credit toward the applicable amount of bail pursuant to KRS 431.066 , in which case the defendant shall not be required to make a deposit with the clerk of the court.
  2. Upon depositing said sum the defendant shall be released from custody subject to all conditions of release imposed by the court.
  3. Except as provided in subsection (5) of this section, if the conditions of release have been performed and the defendant has been discharged from all obligations in the action the clerk of the court shall return to the defendant, unless the court orders otherwise, ninety percent (90%) of the sum deposited and shall retain as bail costs ten percent (10%) of the amount deposited; provided, however, in no event shall the amount retained by the clerk as bail costs be less than five dollars ($5). It is further provided that the court shall order the clerk of court to pay into the public advocate special account any amount of the sum deposited by the defendant, in excess of bail costs, which in its sound discretion represents a reasonable fee for any public advocate legal or investigative services provided for the defendant under KRS Chapter 31, but in no event shall the amount so paid to the public advocate special account as public advocate legal and investigative fees be less than five dollars ($5) per case. At the request of the defendant the court may order the amount repayable to defendant from such deposit to be paid to defendant’s attorney of record.
  4. Except as provided in subsection (5) of this section, if a final judgment for a fine and court costs or either is entered in the prosecution of an action in which a deposit has been made in accordance with subsection (1) of this section, the balance of such deposit, after deduction of bail costs and public advocate fees as provided for in subsection (3) of this section, shall be applied to the satisfaction of the judgment.
  5. If the defendant has performed all conditions of release and if the defendant is found not guilty of the offense for which bail was posted, or if all charges against him relating to the offense for which bail was posted are dropped or dismissed, then all bail money deposited by the defendant or by another person on his behalf shall be returned to him with no deductions therefrom as provided in subsection (3) or (4) of this section.

History. Enact. Acts 1976, ch. 2, § 5; 1976 (Ex. Sess.), ch. 24, § 6; 1978, ch. 384, § 118, effective June 17, 1978; 1979 (Ex. Sess.), ch. 7, § 9, effective July 1, 1979; 2012, ch. 156, § 3, effective July 12, 2012.

Opinions of Attorney General.

The “clerk of the court” as mentioned in this section is that person who is clerk to the county judge’s exercise of criminal jurisdiction. (Decision prior to repeal of KRS Ch. 25 which gave the county judge criminal jurisdiction.) OAG 76-379 .

Local public defender organizations cannot gain access to the funds collected from indigent defendants pursuant to subsection (3) of this section by petitioning the Circuit and District Courts for an order requiring the court clerk to disperse such funds to local public defender programs. OAG 78-564 .

Where a jailer takes a bail bond under KRS 30A.060(3) or RCr 4.24, since the jailer would be taking bond, if at all, as a substitution for the court clerk, who is not available, the fee or “cost” set forth in subsection (3) of this section would govern. OAG 82-325 .

With regard to a clerk’s fee involving bonds, this section governs over KRS 64.005 as this section is the more specific statute. OAG 82-325 .

A jailer may be authorized to bail misdemeanants by the Chief Circuit Judge, where the clerk is unavailable; he may accept cash bail or the deposit authorized by this section. OAG 84-108 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.5305. Jailer permitted to prepare or accept bail bond — Fee — Reporting.

With the approval of the fiscal court of the county in which the prisoner is incarcerated, the jailer may prepare or accept a bail bond pursuant to KRS 30A.060(3). In this case, he shall collect a fee of five dollars ($5) from the defendant. The jailer shall furnish the defendant with a written receipt for the fee. By the tenth day of each month, the jailer shall:

  1. Report the previous month’s bonding fees to the county treasurer; and
  2. Submit the previous month’s bonding fees to the county treasurer for inclusion in the jail fund.

History. Enact. Acts 1992, ch. 89, § 4, effective July 14, 1992.

431.531. Statement of collections to be filed — Funds to be sent to State Treasury — Certification of amounts and publication of annual audit by administrative office of the courts.

  1. Each Circuit Court clerk, shall on the first day of each month, send to the Finance and Administration Cabinet, a statement, subscribed and sworn to by him, showing the amount of money received or collected by or for him the preceding month pursuant to KRS 431.530(3) and shall, with such statements, send to the State Treasury the amount so collected for deposit to the credit of the general fund.
  2. The Circuit Court clerk shall send to the State Treasury for credit to the general fund all balances from fees collected pursuant to KRS 431.530 .
  3. The Administrative Office of the Courts shall certify to the Finance and Administration Cabinet on an annual basis that all funds collected have been duly reported by the circuit clerk in accordance with KRS 30A.120 .
  4. The Administrative Office of the Courts shall cause to be published an annual audit of the funds collected pursuant to KRS 30A.120 no later than December 1 for the preceding fiscal year receipts.

History. Enact. Acts 1976 (Ex. Sess.), ch. 21, § 26, effective January 2, 1978.

Opinions of Attorney General.

A jailer, taking bond under direction of the court, is really an officer of the court, and the costs or fees therefor accrue to the accounts of the circuit clerk’s office, subject to their being sent to the state treasury for credit to the general fund, pursuant to subsection (2) of this section. OAG 82-325 .

431.532. Bail deposits by person other than defendant.

When deposits of money are made by a person other than the defendant utilizing funds other than those of the defendant as bail security pursuant to KRS 431.530 the following terms and conditions shall apply in lieu of the provisions of subsections (3) and (4) of KRS 431.530 :

  1. The deposit shall be listed as being made on behalf of the defendant by the depositor and not in the name of the defendant;
  2. If the conditions of release have been performed and the defendant has been discharged from all obligations in the action the clerk of the court shall return to the person who deposited the money ninety percent (90%) of the sum deposited and shall retain as bail costs ten percent (10%) of the amount deposited provided, however, in no event shall the amount retained by the clerk as bail costs be less than five dollars ($5);
  3. No deductions shall be made by the court for public advocate services, satisfaction of fines, payment of attorneys, or any other purpose when the defendant has been discharged as provided in subsection (2) of this section unless agreed to by the poster of the bond.
  4. If the defendant has performed all conditions of release and if the defendant is found not guilty of the offense for which bail was posted, or if all charges against him relating to the offense for which bail was posted are dropped or dismissed, then all bail money deposited pursuant to this section shall be returned to the person posting the bail with no deductions therefrom as provided in subsection (3) or (4) of KRS 431.530 .

History. Enact. Acts 1979 (Ex. Sess.), ch. 7, § 10, effective July 1, 1979.

431.535. Cash, stocks, bonds, or real estate as security for bail.

  1. Any person who has been permitted to execute a bail bond in accordance with KRS 431.520(3)(c) may secure such bond:
    1. By a deposit, with the clerk of the court, of cash, or stocks and bonds in which trustees are authorized to invest funds under the laws of this Commonwealth having an unencumbered market value of not less than the amount of the bail bond; or
    2. By real estate situated in this Commonwealth with unencumbered equity, not exempt and owned by the defendant or a surety or sureties having a fair market value at least double the amount of the bail bond.
  2. If the bail bond is secured by stocks and bonds the defendant or the surety or sureties shall file with the bond a sworn schedule which shall be approved by the court and shall contain:
    1. A list of the stocks and bonds deposited describing each in sufficient detail that they may be identified;
    2. The present market value of each stock and bond;
    3. The total market value of the stocks and bonds listed;
    4. A statement that the affiant or affiants is the sole owner or owners thereof and that the stocks and bonds listed are not exempt from execution;
    5. A statement that such stocks and bonds have not previously been deposited or accepted as bail in this Commonwealth during the 12 months preceding the date of the bail bond; provided however this statement shall not be required of the defendant using his own property as security; or if the surety or sureties using their property as security are related to the defendant by consanguinity no further removed than first cousin; or if the surety or sureties is either a father-in-law, mother-in-law, son-in-law, or daughter-in-law of the defendant; and
    6. A statement that such stocks and bonds are security for the appearance of the defendant in accordance with the conditions of release imposed by the court.
  3. If the bail bond is secured by real estate the defendant or surety or sureties shall file with the bond a sworn schedule which shall contain:
    1. A legal description of the real estate;
    2. A description of any and all encumbrances on the real estate including the amount of each and the holder thereof;
    3. The market value of the unencumbered equity owned by the affiant or affiants;
    4. A statement that the affiant is the sole owner, or in the case of jointly owned real estate, that affiants are the sole owners of such unencumbered equity and that it is not exempt from execution;
    5. A statement that the real estate has not previously been used or accepted as bail in this Commonwealth during the 12 months preceding the date of the bail bond; provided however, this statement shall not be required of the defendant using his own property as security; or if the surety or sureties using their property as security are related to the defendant by consanguinity no further removed than first cousin; or if the surety or sureties is either a father-in-law, mother-in-law, son-in-law or daughter-in-law of the defendant; and
    6. A statement that the real estate is security for the appearance of the defendant in accordance with the conditions of release imposed by the court.
  4. The sworn schedule shall constitute a material part of the bail bond. An affiant shall be subject to penalty of perjury if in the sworn schedule he makes a false statement which he does not believe to be true.
  5. A certified copy of the bail bond and schedule of real estate accompanied by the necessary recording fee which shall be paid by the affiant or affiants shall be filed immediately by the clerk of the court requiring the bail bond in the office of the county clerk of the county in which the real estate is situated. The county clerk shall record such copies of said bail bonds and schedule and the Commonwealth shall have a lien upon such real estate from the date and time of such recordation. The instruments described herein shall be recorded in the miscellaneous encumbrances book provided by the county clerk.
  6. If the conditions of release imposed by the court have been performed and the defendant has been discharged from all obligations in the action, the clerk of the court shall return to him or his sureties the deposit of any cash, stocks or bonds. If the bail bond has been secured by real estate, the clerk of the court requiring the bail bond shall forthwith notify in writing the county clerk of the county where the real estate is situated and the lien on the real estate shall be discharged and the release thereof recorded in the margin.

History. Enact. Acts 1976, ch. 2, § 6; 1978, ch. 384, § 530, effective June 17, 1978.

NOTES TO DECISIONS

1.Bankruptcy Proceedings.

Trustee established that a transfer of $76,000 made as a restitution payment required in a state criminal proceeding was preferential because the transferee was a creditor, the payment was made at a time when the debtor was insolvent, and the funds used to pay the restitution obligation were from a bail bond that was entirely within the co-debtor spouse’s control, pursuant to KRS 431.535(6). Miller v. Bates (In re Hockensmith), 2009 Bankr. LEXIS 1854 (Bankr. E.D. Ky. June 25, 2009).

Opinions of Attorney General.

The proper fee of the clerk for filing a certified copy of the bail bond and real estate schedule under subsection (5) of this section would be the fee provided for in KRS 64.010 (repealed) relating to the recording of a real estate mortgage, and as subsection (6) of this section calls for a marginal release of the subject lien, the proper county clerk’s fee for this service is $1.50 pursuant to the expressed provisions of KRS 64.010 (repealed) and the costs of releasing the lien would be paid by the convicted defendant. OAG 76-354 .

The $1 (now $4) state tax imposed upon a mortgage under KRS 142.010(1)(d) (now 142.010(1)(c)) applies to the bail bond and real estate schedule filed as a lien under subsection (5) of this section. OAG 76-354 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.540. Uniform schedule of amounts of bail in designated nonviolent Class D felonies, misdemeanors, and violations.

The Supreme Court may by rule or order prescribe a uniform schedule of amounts of bail in designated nonviolent Class D felonies, misdemeanors, and violations;

  1. Except as provided in subsection (2) of this section, when the amount of bail is fixed by such rule or order of the Supreme Court for a particular offense, the clerk of the court or other public officers so authorized by the court’s order shall accept cash bail in the prescribed amount or the deposit authorized by KRS 431.530 and release the defendant to appear in accordance with the conditions of the bail bond. A receipt shall be delivered to the defendant for the bail so taken and within a reasonable time such bail shall be deposited with the clerk of the court having jurisdiction of the offense.
  2. A court may, in the exercise of its reasonable discretion, refuse to set bail in the amount prescribed by such rule or order of the Supreme Court, but, in so doing, the court must set forth in writing its reasons for such refusal.

History. Enact. Acts 1976, ch. 2, § 7; 2008, ch. 186, § 1, effective July 15, 2008.

Opinions of Attorney General.

Pursuant to RCr 4.24, the jailer or the deputy jailer cannot accept bail except where the Circuit Court of proper jurisdiction so directs, and if the deputy jailer takes bail money when not authorized to do so the jailer is liable on his bond for any loss of money. OAG 76-516 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.545. Forfeiture of bail; Prosecution.

If a defendant shall willfully fail to appear or shall willfully fail to comply with the conditions of his release:

  1. The court may order a forfeiture of the bail, serving a copy thereof upon the defendant and his surety or sureties at their last known addresses; if the defendant or his surety or sureties do not appear within twenty (20) days after service of the order or a return of not found and satisfy the court that appearance or compliance by the defendant was impossible and without his fault, the court may enter judgment against the defendant and his surety or sureties for the amount of the bail and the costs of the proceedings for all of which execution may issue; and
  2. The defendant shall be subject to prosecution for the offenses prescribed in KRS 520.070 and 520.080 .

History. Enact. Acts 1976, ch. 2, § 8.

NOTES TO DECISIONS

1.Excessive Forfeiture.

Defendant’s conduct was serious and willful and, therefore, the bond posted was subject to forfeiture, KRS 431.545 , RCr P. 4.42; however, the $50,000 forfeiture was excessive, where, unlike the usual disappearance of the defendant following a failure to appear, defendant’s arrest did not require substantial investigative resources and did not require a delay in disposition of the underlying charges. Coomer v. Commonwealth, 2013 Ky. App. LEXIS 73 (Ky. Ct. App. May 3, 2013).

2.Discretion to Order Forfeiture.

Language in the forfeiture of bond statute, KRS 431.545 , and forfeiture of bond criminal rule, RCr 4.42, clearly indicated that the General Assembly intended that courts had the option to forfeit bonds for violations of non-financial conditions of the bond. A trial court did not abuse its discretion in ordering the forfeiture of $5,000 of a $20,000 bond where the evidence clearly showed that defendant violated conditions of his pre-trial release bond that prohibited the consumption of alcohol and required defendant to obey a curfew; defendant was caught out drinking after the curfew time. Clemons v. Commonwealth, 152 S.W.3d 256, 2004 Ky. App. LEXIS 326 (Ky. Ct. App. 2004).

Opinions of Attorney General.

Where a defendant has willfully failed to comply with the conditions of a bail bond, resulting in a forfeiture being ordered by the court, and a lien on real estate is involved so that notice of the forfeiture is sent to the county clerk pursuant to RCr 4.48, the proper officer to execute the lien would be the county sheriff of the county in which the real property is situated, or his deputy, under KRS 70.070 . OAG 81-215 .

In a suit to enforce a mortgage or judgment lien against real property which also secures a bail bond, the Commonwealth of Kentucky, Administrative Office of the Courts, should be named as a party to the suit to represent the Commonwealth’s interest. In addition to service on the Administrative Office of the Courts, the plaintiff should serve a copy of the complaint on the county attorney for the county in which the action is filed since the county attorney usually represents the Commonwealth in such an action. OAG 91-127 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

431.550. Penalty for KRS 431.510 to 431.545.

Any person who violates any provisions of KRS 431.510 to 431.545 not otherwise punishable by law or statute shall be guilty of a Class A misdemeanor for the first offense, and guilty of a Class D felony for each additional offense.

History. Enact. Acts 1976, ch. 2, § 9.

Compiler’s Notes.

Section 10 of Acts 1976, ch. 2 provided that “all the provisions of subtitle 34 of KRS chapter 304 inconsistent with this Act [KRS 431.510 to 431.550 ] are repealed.”

Research References and Practice Aids

Cross-References.

Classification, designation and disposition of offenses, KRS 532.010 532.120 .

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Crime Stoppers Organizations

431.570. Definition of “crime stoppers organization.”

As used in KRS 431.570 to 431.595 , unless the context otherwise requires:

  1. “Crime stoppers organization” means a private, nonprofit organization that accepts and disperses donations for rewards to persons who:
    1. Report to the organization information concerning criminal activity and such information results in the arrest or indictment of the person committing the crime; or
    2. Provide to the organization information pertaining to the recovery or confiscation of stolen property, contraband or illegal controlled substances.
  2. Information provided in subsection (1) of this section shall be forwarded to the appropriate law enforcement agency.

History. Enact. Acts 1992, ch. 59, § 1, effective July 14, 1992.

431.575. Duties of organization.

A crime stoppers organization shall:

  1. Foster the detection of crime and encourage persons to report information about criminal acts;
  2. Encourage news and other media to promote local crime stoppers organizations and to inform the public of the functions of the organization;
  3. Assist other crime stoppers organizations in forwarding information about criminal acts to the appropriate law enforcement agencies; and
  4. Help law enforcement agencies detect and combat crime by increasing the flow of information to and between law enforcement agencies.

History. Enact. Acts 1992, ch. 59, § 2, effective July 14, 1992.

431.580. Circuit Court order required for production of reports — Records of reports confidential.

  1. Records of a crime stoppers organization concerning a report of criminal activity shall not be compelled to be produced before a court or other tribunal except on the order of the Circuit Court.
  2. Records of a crime stoppers organization relating to reports of criminal acts shall be confidential.

History. Enact. Acts 1992, ch. 59, § 3, effective July 14, 1992.

431.585. Unlawful disclosure of information.

  1. A person who accepts a report of criminal activity on behalf of a crime stoppers organization shall be guilty of unlawful disclosure of information if the person intentionally or knowingly divulges to a person not employed by a law enforcement agency the identity of the person who made the report without the consent of the person who made the report.
  2. Unlawful disclosure of information under this section shall be a Class A misdemeanor.

History. Enact. Acts 1992, ch. 59, § 4, effective July 14, 1992.

431.590. Repayment by convicted defendant of all or part of reward paid by organization.

  1. In addition to any other penalty authorized by law, after a defendant has been convicted of an offense, excluding offenses committed under KRS Chapters 186 and 189, the judge shall order a defendant to repay all or part of a reward paid by a crime stoppers organization.
  2. In determining the amount the defendant shall repay to a crime stoppers organization under subsection (1) of this section, the court shall consider the importance of the information to the prosecution of the defendant as provided by the arresting officer or the prosecuting attorney with due regard for the confidentiality of the crime stoppers organization records.
  3. In this section, “crime stoppers organization” means an organization as defined by KRS 431.570 .

History. Enact. Acts 1992, ch. 59, § 5, effective July 14, 1992.

431.595. Assessment of repayment ordered as cost — Time of repayment — Court clerk’s duties.

  1. Upon an order to repay a reward or part of a reward under KRS 431.590 , the court shall assess this cost against the defendant in the same manner as other costs of prosecution are assessed against a defendant. The court shall order the defendant to:
    1. Pay the entire amount required when sentence is pronounced; or
    2. Pay the entire amount required at a later date specified by the court.
  2. After receiving a payment from a person ordered to make the payment under this section, the clerk of the court shall:
    1. Make a record of the payment;
    2. Forward the payment to the designated crime stoppers organization; and
    3. Record the forwarding of the payment.

History. Enact. Acts 1992, ch. 59, § 6, effective July 14, 1992.

431.597. Agreement of affiliation between county and crime stoppers organization — Funding.

  1. Any crime stoppers organization that enters into a written agreement of affiliation, as provided in subsection (2) of this section, with a county in which the organization operates shall be funded in part by a one dollar ($1) fee added to court costs in that county. The fee shall be imposed on every person who is:
    1. Convicted of any misdemeanor or violation, other than a violation of KRS Chapters 186, 187, 188, 189, or 189A; and
    2. Sentenced to pay a fine for the misdemeanor or violation, regardless of whether the person is also incarcerated, or whether the fine is suspended, waived, or otherwise not imposed.
  2. Any crime stoppers organization may enter into a written agreement of affiliation, approved by a fiscal court or urban-county council, with any county, or with any number of counties, in which the organization operates. Agreements of affiliation shall be valid for two (2) years and may be renewed. The agreements shall specify:
    1. The relationship between the crime stoppers organization, the county, and law enforcement agencies in the county; and
    2. That the crime stoppers organization shall account annually to the fiscal court or urban-county council for all funds raised by the organization from all sources and all funds expended by the organization for any purpose. The agreement shall allow the crime stoppers organization to identify the sources of funds raised generically rather than by name. The agreement shall not require the crime stoppers organization to divulge the amounts of individual rewards paid nor the identity of any person to whom a reward was paid.
  3. In every county where an agreement of affiliation is approved, the county clerk shall notify the circuit clerk to collect the fee required by this section. The circuit clerk shall collect the fee for two (2) years from the date the agreement was signed. When the circuit clerk pays fines and costs over to the state, the circuit clerk shall pay all money collected under this section to the crime stoppers organization named in the agreement.
  4. The crime stoppers fee shall not be waived or suspended. Failure to pay the fee shall be treated as a failure to pay a fine under KRS Chapter 534.
  5. Crime stoppers organizations may use the funds they receive under this section for any purpose authorized by KRS 431.575 .

History. Enact. Acts 1998, ch. 337, § 1, effective July 15, 1998.

431.600. Coordination of child sexual abuse investigations and prosecutions — Protection of and counseling for child victims.

  1. Each investigation of reported or suspected sexual abuse of a child shall be conducted by a specialized multidisciplinary team composed, at a minimum, of law enforcement officers and social workers from the Cabinet for Health and Family Services. Cabinet for Health and Family Services social workers shall be available to assist in all investigations under this section but shall be lead investigators only in those cases of reported or suspected sexual abuse of a child in which a person exercising custodial control or supervision, as defined in KRS 600.020 , is the alleged or suspected perpetrator of the abuse. Additional team members may include Commonwealth’s and county attorneys, children’s advocacy center staff, mental health professionals, medical professionals, victim advocates, including those for victims of human trafficking, educators, and other related professionals, as necessary, operating under protocols governing roles, responsibilities, and procedures developed by the Kentucky Multidisciplinary Commission on Child Sexual Abuse and promulgated by the Attorney General as administrative regulations pursuant to KRS Chapter 13A.
  2. Local protocols shall be developed in each county or group of contiguous counties by the agencies and persons specified in subsection (1) of this section specifying how the state protocols shall be followed within the county or group of contiguous counties. These protocols shall be approved by the Kentucky Multidisciplinary Commission on Child Sexual Abuse.
  3. If adequate personnel are available, each Commonwealth’s attorney’s office and each county attorney’s office shall have a child sexual abuse specialist.
  4. Commonwealth’s attorneys and county attorneys, or their assistants, shall take an active part in interviewing and familiarizing the child alleged to have been abused, or who is testifying as a witness, with the proceedings throughout the case, beginning as early as practicable in the case.
  5. If adequate personnel are available, Commonwealth’s attorneys and county attorneys shall provide for an arrangement which allows one (1) lead prosecutor to handle the case from inception to completion to reduce the number of persons involved with the child victim.
  6. Commonwealth’s attorneys and county attorneys and the Cabinet for Health and Family Services and other team members shall minimize the involvement of the child in legal proceedings, avoiding appearances at preliminary hearings, grand jury hearings, and other proceedings when possible.
  7. Commonwealth’s attorneys and county attorneys shall make appropriate referrals for counseling, private legal services, and other appropriate services to ensure the future protection of the child when a decision is made not to prosecute the case. The Commonwealth’s attorney or county attorney shall explain the decision not to prosecute to the family or guardian, as appropriate, and to the child victim.
  8. To the extent practicable and when in the best interest of a child alleged to have been abused, interviews with a child shall be conducted at a children’s advocacy center.

History. Enact. Acts 1992, ch. 351, § 1, effective July 14, 1992; 1994, ch. 207, § 1, effective July 15, 1994; 1996, ch. 18, § 1, effective July 15, 1996; 1998, ch. 339, § 1, effective July 15, 1998; 1998, ch. 426, § 601, effective July 15, 1998; 2000, ch. 144, § 1, effective July 14, 2000; 2005, ch. 99, § 650, effective June 20, 2005; 2013, ch. 25, § 23, effective June 25, 2013.

Kentucky Multidisciplinary Commission on Child Sexual Abuse

431.650. Kentucky Multidisciplinary Commission on Child Sexual Abuse.

  1. The Kentucky Multidisciplinary Commission on Child Sexual Abuse is hereby created.
  2. The commission shall be composed of the following members:
    1. The commissioner of the Department for Community Based Services or a designee;
    2. The commissioner of the Department for Behavioral Health, Developmental and Intellectual Disabilities or a designee;
    3. One (1) social service worker who is employed by the Department for Community Based Services to provide child protective services, who shall be appointed by the secretary of the Cabinet for Health and Family Services;
    4. One (1) therapist who provides services to sexually abused children, who shall be appointed by the secretary of the Cabinet for Health and Family Services;
    5. The commissioner of the Department of Kentucky State Police or a designee;
    6. One (1) law enforcement officer who is a detective with specialized training in conducting child sexual abuse investigations, who shall be appointed by the secretary of the Justice and Public Safety Cabinet;
    7. One (1) employee of the Administrative Office of the Courts appointed by the Chief Justice of the Supreme Court of Kentucky;
    8. Two (2) employees of the Attorney General’s Office who shall be appointed by the Attorney General;
    9. One (1) Commonwealth’s attorney who shall be appointed by the Attorney General;
    10. The commissioner of the Department of Education or a designee;
    11. One (1) school counselor, school psychologist, or school social worker who shall be appointed by the commissioner of the Department of Education;
    12. One (1) representative of a children’s advocacy center who shall be appointed by the Governor;
    13. One (1) physician appointed by the Governor; and
    14. One (1) former victim of a sexual offense or one (1) parent of a child sexual abuse victim who shall be appointed by the Attorney General.
  3. Appointees shall serve at the pleasure of the appointing authority but shall not serve longer than four (4) years without reappointment.
  4. The commission shall elect a chairperson annually from its membership.

History. Enact. Acts 1994, ch. 308, § 1, effective July 15, 1994; 1996, ch. 18, § 2, effective July 15, 1996; 1998, ch. 426, § 602, effective July 15, 1998; 2000, ch. 14, § 55, effective July 14, 2000; 2000, ch. 144, § 2, effective July 14, 2000; 2005, ch. 99, § 70, effective June 20, 2005; 2007, ch. 85, § 314, effective June 26, 2007; 2012, ch. 146, § 116, effective July 12, 2012; 2012, ch. 158, § 74, effective July 12, 2012.

Legislative Research Commission Notes.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

(6/26/2007). A technical correction has been made in this section by the Reviser of Statutes pursuant to KRS 7.136 .

431.660. Duties and powers of commission.

  1. The Kentucky Multidisciplinary Commission on Child Sexual Abuse shall:
    1. Prepare and issue a model protocol for local multidisciplinary teams regarding investigation and prosecution of child sexual abuse and the role of children’s advocacy centers on multidisciplinary teams.
    2. Review and approve protocols prepared by local multidisciplinary teams.
    3. Advise local multidisciplinary teams on the investigation and prosecution of child sexual abuse.
    4. Receive data on child sexual abuse cases collected by the Prosecutors Advisory Council and issue annual reports.
    5. Collect data on the operation of local multidisciplinary teams.
    6. Seek funding to support special projects relating to the operation of local multidisciplinary teams.
    7. Receive and review complaints regarding local multidisciplinary teams, and make appropriate recommendations.
    8. Recommend to the Governor, Legislative Research Commission, and Supreme Court changes in state programs, legislation, administrative regulations, policies, budgets, and treatment and service standards which may facilitate effective intervention of child sexual abuse cases and the investigation and prosecution of perpetrators of child sexual abuse, and which may improve the opportunity for victims of child sexual abuse to receive treatment.
  2. The Kentucky Multidisciplinary Commission on Child Sexual Abuse may, within budget limitations, establish and maintain necessary offices, appoint employees, and prescribe the duties and compensation for the appointed employees.

History. Enact. Acts 1994, ch. 308, § 2, effective July 15, 1994; 1996, ch. 18, § 3, effective July 15, 1996; 2000, ch. 144, § 3, effective July 14, 2000.

431.670. Attachment of commission to Office of the Attorney General.

For administrative purposes only, the Kentucky Multidisciplinary Commission on Child Sexual Abuse shall be attached to the Office of the Attorney General.

History. Enact. Acts 1994, ch. 308, § 3, effective July 15, 1994.

CHAPTER 432 Offenses Against the State and Public Justice

432.010. Treason. [Repealed.]

Compiler’s Notes.

This section (2711a-237) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.020. Criminal syndicalism. [Repealed.]

Compiler’s Notes.

This section (1148a-1, 1148a-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.030. Sedition. [Repealed.]

Compiler’s Notes.

This section (1148a-2, 1148a-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.040. Teaching, publishing, joining society to advocate criminal syndicalism or sedition. [Repealed.]

Compiler’s Notes.

This section (1148a-4, 1148a-9) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.050. Permitting assembly — Furnishing printing press or machinery for criminal syndicalism, sedition. [Repealed.]

Compiler’s Notes.

This section (1148a-5, 1148a-9) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.060. Conspiracy to commit sedition, criminal syndicalism — Proof. [Repealed.]

Compiler’s Notes.

This section (1148a-11) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.070. Witness required to give self-incriminating testimony not to be prosecuted — Corroboration requirement not applicable. [Repealed.]

Compiler’s Notes.

This section (1148a-14; amend., Acts 1966, ch. 255, § 273) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.080. Possession of firearms or explosives by subject of enemy country — Arrest and search. [Repealed.]

Compiler’s Notes.

This section (1376i-1, 1376i-2, 1376i-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.090. Discrimination against person in uniform. [Repealed.]

Compiler’s Notes.

This section (2711a-235) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.100. Forging or counterfeiting public documents, seals. [Repealed.]

Compiler’s Notes.

This section (1185, 1187) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.030 , 519.060 .

432.110. Fraudulently altering enrolled bill. [Repealed.]

Compiler’s Notes.

This section (1985) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 7.990 .

432.120. Forging names on petition, memorial, remonstrance.

Any person who signs any name to a petition, memorial or remonstrance intended for presentation to the General Assembly, a county judge/executive or the Governor, without authority from the person whose name is signed or where there is no such person, shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500).

History. 1345: amend. Acts 1978, ch. 384, § 531, effective June 17, 1978.

NOTES TO DECISIONS

1.Authority to Sign.

If persons who signed names of others to petition had verbal authorization from them to so sign their names, the persons who signed the names of such others could not be punished under this section. McAuliffe v. Helm, 157 Ky. 626 , 163 S.W. 1091, 1914 Ky. LEXIS 349 ( Ky. 1914 ).

Research References and Practice Aids

Cross-References.

Written instrument, forgery, KRS 516.040 .

432.130. Withdrawal or mutilation of court record. [Repealed.]

Compiler’s Notes.

This section (1197) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.060 .

432.140. Forging, altering or stealing land warrant. [Repealed.]

Compiler’s Notes.

This section (1200) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.030 , 519.060 .

432.150. Removing or defacing legal advertisement. [Repealed.]

Compiler’s Notes.

This section (1263) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.060 .

432.160. False statement of notary public. [Repealed.]

Compiler’s Notes.

This section (1179) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.060 , 523.100 .

432.170. False swearing. [Repealed.]

Compiler’s Notes.

This section (1174) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 523.010 to 523.110 .

432.180. Subornation of perjury. [Repealed.]

Compiler’s Notes.

This section (1177) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 .

432.190. Commonwealth’s attorney receiving bribe not to prosecute. [Repealed.]

Compiler’s Notes.

This section (1360) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.030 , 521.040 , 522.020 .

432.200. Informer or prosecutor bribed to withhold evidence. [Repealed.]

Compiler’s Notes.

This section (1361) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.030 , 521.040 , 522.020 , 524.030 .

432.210. Appointment of attorney to prosecute person accused. [Repealed.]

Compiler’s Notes.

This section (1362) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.030 .

432.215. Threatening witness, juror or judicial officer. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 214, § 1; 1972, ch. 252, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.020 , 524.040 .

432.220. Procuring juror to accept bribe. [Repealed.]

Compiler’s Notes.

This section (1367) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 524.060 .

432.230. Contempt of court by witness, juror, officer.

Witnesses, jurors and officers of courts, for disobeying a summons of court, or neglecting to execute or make due return of a subpoena or order of court or other judicial officer, may be punished for contempt.

History. 1293: amend. Acts 1976 (Ex. Sess.), ch. 14, § 442, effective January 2, 1978.

NOTES TO DECISIONS

1.Constitutionality.

The fine limitation of this section is unconstitutional as the limitation imposed constitutes a material interference with the administration of justice. Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ); Otis v. Meade, 483 S.W.2d 161, 1972 Ky. LEXIS 183 ( Ky. 1972 ), questioned, 765 S.W.2d 583, 1988 Ky. App. LEXIS 203 (Ky. Ct. App. 1988). (Decision prior to 1976 amendment).

2.Contempt.

The power of a court to punish for contempt is as old as the common law and inherent in every court. Underhill v. Murphy, 117 Ky. 640 , 78 S.W. 482, 25 Ky. L. Rptr. 1731 , 1904 Ky. LEXIS 227 ( Ky. 1904 ).

Where a physician, in contemplation of a pending suit by a party to recover damages for personal injuries sustained by the alleged negligence of another, treated the party in a professional way for the purpose of making evidence that would sustain the action that was soon afterwards brought, when he knew the party was not injured, he was not guilty of contempt and could not be proceeded against or punished by contempt proceedings, although he might have been proceeded against and punished by indictment. If, however, in a pending suit, a physician had been guilty of this conduct, it would have been a contempt of court. Melton v. Commonwealth, 160 Ky. 642 , 170 S.W. 37, 1914 Ky. LEXIS 528 ( Ky. 1914 ) ( Ky. 1914 ).

An affidavit to require a judge to vacate bench because of prejudice, which contains statements unnecessarily reflecting on the honor and integrity of the court, is contemptuous, and prohibition will not lie to restrain the judge from punishing litigant for contempt. Williams v. Howard, 270 Ky. 728 , 110 S.W.2d 661, 1937 Ky. LEXIS 149 ( Ky. 1937 ).

An attorney appointed as guardian ad litem may be punished for contempt if he refuses to act without justification, but he may rightly refuse to act if infant has not been brought within the jurisdiction of the court by proper service of process. Herr v. Humphrey, 277 Ky. 421 , 126 S.W.2d 809, 1939 Ky. LEXIS 659 ( Ky. 1939 ).

Contempt proceedings do not lie for perjury except where the truth of the facts or the falsity of the evidence is judicially known. Wilder v. Sampson, 279 Ky. 103 , 129 S.W.2d 1022, 1939 Ky. LEXIS 235 ( Ky. 1939 ).

Circuit Court had discretionary power, in case of refusal of defendants to obey orders to appear and give depositions as on cross-examination, to strike defendants’ pleadings and enter default judgment for plaintiff but, where some of defendants’ pleadings appeared to present a good defense and plaintiff could have established part of allegations of his petition without aid of evidence withheld by defendants, it was an abuse of discretion to impose such punishment for the contempt. Court could, however, issue a rule giving notice to defendants that such punishment would be imposed if defendants did not comply with orders within a stated time. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

Defendants who refused, on advice of their attorney, to obey orders of the court directing them to appear and give depositions as on cross-examination were guilty of contempt, notwithstanding that their refusal was based on an honest conviction that the court had no right to compel their depositions prior to determination of question as to whether plaintiff had capacity to sue. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

It is the duty of parties to an action to obey the orders of the court, whether right or wrong, and any person who aids in the evasion of an order of court, or incites others to such conduct, is guilty of contempt. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

Where contempt consists of statements susceptible to construction that they were intended to reflect on integrity of the judge, opportunity should be afforded offender to purge himself of the contempt by explanation, apology or retraction. Marshall v. Hancock, 300 Ky. 295 , 188 S.W.2d 477, 1945 Ky. LEXIS 545 ( Ky. 1945 ).

Family Court properly exercised its contempt powers in sentencing appellant to complete domestic violence counseling, even though the domestic violence order (DVO) had expired prior to the contempt hearing, because the Family Court was not attempting to enforce the defunct DVO but to punish appellant for his contumacious behavior. Meyers v. Petrie, 233 S.W.3d 212, 2007 Ky. App. LEXIS 321 (Ky. Ct. App. 2007).

3.—Civil.

A civil contempt is defined to be a failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Ketcham v. Commonwealth, 204 Ky. 168 , 263 S.W. 725, 1924 Ky. LEXIS 419 ( Ky. 1924 ). See Hall v. Hall, 246 Ky. 12 , 54 S.W.2d 391, 1932 Ky. LEXIS 700 ( Ky. 1932 ).

The courts are not limited, in cases of civil contempt, to the imposition of the maximum fines prescribed by this section and KRS 432.260 (repealed), but may go beyond the powers expressed or defined by statutes in enforcing court orders. Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ).

A “civil contempt” consists of failure to do something which is ordered by the court to be done for the benefit of another party to a proceeding before the court, while “criminal contempts” are acts in disrespect of the court or its process which obstruct administration of justice or tend to bring the court into disrepute. Jones v. Commonwealth, 308 Ky. 233 , 213 S.W.2d 983, 1948 Ky. LEXIS 876 ( Ky. 1948 ), overruled, Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 ( Ky. 1968 ).

4.—Criminal.

Where a person was merely a spectator in a courtroom and not sworn as a witness in any action pending before the court, he could not be held guilty of criminal contempt for refusing to answer the judge’s questions, because the judge had no authority to conduct an inquiry to ascertain whether offenses had been committed. Ketcham v. Commonwealth, 204 Ky. 168 , 263 S.W. 725, 1924 Ky. LEXIS 419 ( Ky. 1924 ). See Ketcham v. Manning, 212 Ky. 325 , 279 S.W. 344, 1926 Ky. LEXIS 136 ( Ky. 1926 ).

Criminal contempt is defined to be conduct that is directed against the dignity and authority of the court and may occur in either criminal or civil actions and special proceedings. Ketcham v. Commonwealth, 204 Ky. 168 , 263 S.W. 725, 1924 Ky. LEXIS 419 ( Ky. 1924 ). See Hall v. Hall, 246 Ky. 12 , 54 S.W.2d 391, 1932 Ky. LEXIS 700 ( Ky. 1932 ).

Refusal to testify is one among the various acts that may be held to be criminal contempt. Ketcham v. Commonwealth, 204 Ky. 168 , 263 S.W. 725, 1924 Ky. LEXIS 419 ( Ky. 1924 ). See Hall v. Hall, 246 Ky. 12 , 54 S.W.2d 391, 1932 Ky. LEXIS 700 ( Ky. 1932 ).

5.—Liability of Judges.

A justice who, within his jurisdiction, has one imprisoned for civil or criminal contempt is not liable in damages to the one imprisoned. McBurnie v. Sullivan, 152 Ky. 686 , 153 S.W. 945, 1913 Ky. LEXIS 698 ( Ky. 1913 ). See Bryant v. Crossland, 182 Ky. 556 , 206 S.W. 791, 1918 Ky. LEXIS 403 ( Ky. 1918 ).

6.—Additional Offense.

A judgment punishing for contempt would have been no bar to a criminal proceeding for violation of the law. Underhill v. Murphy, 117 Ky. 640 , 78 S.W. 482, 25 Ky. L. Rptr. 1731 , 1904 Ky. LEXIS 227 ( Ky. 1904 ).

There are some offenses that are at the same time contempts of court and indictable crimes and, in this class of cases, punishment for contempt will not bar punishment under indictment for the larger offense. Melton v. Commonwealth, 160 Ky. 642 , 170 S.W. 37, 1914 Ky. LEXIS 528 ( Ky. 1914 ) ( Ky. 1914 ).

7.—Jurisdiction.

It is essential that the court acquire jurisdiction over the offender before punishment for contempt may be imposed. Lyons v. Bryan, 273 S.W.2d 838, 1954 Ky. LEXIS 1214 ( Ky. 1954 ).

8.—Writ of Prohibition.

Attorney’s affidavit in support of a motion to require circuit judge to vacate bench, which contained matter and innuendoes beyond the relevant facts necessary to show that the judge would not afford his client a fair and impartial trial, justified the judge’s issuance of rule against attorney to show cause why he should not be punished for contempt, and petition for writ of prohibition against the judge was denied by Court of Appeals. Marshall v. Hancock, 300 Ky. 295 , 188 S.W.2d 477, 1945 Ky. LEXIS 545 ( Ky. 1945 ).

9.—Appeal.

The exercise of the power to punish for contempt will be reviewed to the extent of seeing that the order is legal. Rebham v. Fuhrman, 139 Ky. 418 , 50 S.W. 976 ( Ky. 1899 ).

The Commonwealth cannot appeal from a judgment holding that persons were not guilty of contempt. Commonwealth v. Reece, 294 Ky. 251 , 171 S.W.2d 452, 1943 Ky. LEXIS 437 ( Ky. 1943 ).

Cited in:

Melton v. Commonwealth, 160 Ky. 642 , 170 S.W. 37, 1914 Ky. LEXIS 528 ( Ky. 1914 ) ( Ky. 1914 ); Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 ( Ky. 1968 ); Vaughn v. Asbury, 726 S.W.2d 315, 1987 Ky. App. LEXIS 437 (Ky. Ct. App. 1987).

Research References and Practice Aids

Cross-References.

Contempt:

Air pollution control district, subpoena, issuance by hearing board, disobedience, KRS 77.295 .

House of prostitution, violation of injunction to abate, KRS 233.150 .

Punishment, KRS 421.110 , 421.140 .

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Form for Contempt § 22.00.

432.240. No contempt for criticism out of court.

No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.

History. 1295.

NOTES TO DECISIONS

1.In General.

Where a party utters disrespectful language in a letter and sends a copy to the trial court and to the file, it is tantamount to commenting in the presence of the judge. Grant v. Dortch, 993 S.W.2d 506, 1999 Ky. App. LEXIS 36 (Ky. Ct. App. 1999).

Opinions of Attorney General.

A person can be fined not more than $3 or imprisoned not more than six (6) hours for insulting and abusive words toward the clerks of the quarterly, juvenile or probate courts which occur in the presence of the court or judge in the courthouse during the sitting of the court and which are of such nature as to disrupt the orderly and expeditious progress of the proceedings and after a failure to heed the directive of the court to desist. OAG 74-116 .

A person cannot be fined for contempt for insulting and abusive words toward clerks of the quarterly, juvenile or probate courts when uttered outside the presence of the court in the courthouse during the sitting of the court, however, the individual clerk may obtain a warrant or other similar remedy. OAG 74-116 .

432.250. Bond for appearance following contempt charge.

  1. Upon a capias or other original process against a person charged with a contempt, the court awarding it shall direct in what penalty the accused shall give bond, with good surety, for his appearance at the time and place named in the process, which order shall be endorsed on the process. If the bond given is violated, proceedings shall be instituted by the attorney for the Commonwealth to recover the penalty.
  2. If the person arrested by virtue of the process fails to give bond as required, the officer making the arrest shall forthwith remove and lodge him in the jail of the county from which the process issued.

History. 1297, 1298.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book 5th Ed., Practice Content for Contempt, § 22.00.

432.260. Limit of penalty for contempt — Removal of officer exceeding limit. [Repealed.]

Compiler’s Notes.

This section (1291, 1301, 1302) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

432.270. No bail permitted for contempt.

A person committed to prison for contempt shall not be admitted to bail.

History. 1296.

NOTES TO DECISIONS

1.Application.

This section, denying the right to bail of a person committed to prison for contempt, relates only to criminal contempt. Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 ( Ky. 1968 ).

Cited in:

Lewis v. Rice, 261 S.W.2d 804, 1953 Ky. LEXIS 1058 ( Ky. 1953 ).

Opinions of Attorney General.

The sheriff should arrest a person against whom a contempt order has been issued by a judge of the Circuit Court, and the sheriff or his deputy may enter the home of the person adjudged to be in contempt in order to do so. OAG 64-170 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Content for Contempt, § 22.00.

432.280. Court may bring criminal action for libel or slander — Punish resistance to judicial order.

Nothing in KRS 432.230 to 432.270 shall prevent any court or judge from proceeding against any person writing or publishing a libel or slanderous words concerning such court or judge in relation to his judicial conduct in court by indictment, nor prevent any court from punishing any person guilty of a contempt in resisting or disobeying any judicial order or process issued by or under the authority of such court.

History. 1299.

NOTES TO DECISIONS

Cited in:

Lewis v. Rice, 261 S.W.2d 804, 1953 Ky. LEXIS 1058 ( Ky. 1953 ); Clay v. Clay, 707 S.W.2d 352, 1986 Ky. App. LEXIS 1099 (Ky. Ct. App. 1986).

Research References and Practice Aids

Cross-References.

Libel, Const., § 9.

Kentucky Law Journal.

Boone, The Kentucky Consumer Act — True Happiness? 61 Ky. L.J. 793 (1973).

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

432.290. Evidence in contempt trial by jury.

In all trials by jury arising under KRS 432.230 to 432.280 , the truth of the matter may be given in evidence.

History. 1292.

Research References and Practice Aids

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Order Upon Return of Warrant of Arrest and Trial for the Contempt, Form 22.07.

432.300. Forcibly entering courtroom — Obstructing justice. [Repealed.]

Compiler’s Notes.

This section (1294) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.020 , 524.010 to 524.100 .

432.310. Judge failing to give place to special judge — Using money held by court. [Repealed.]

Compiler’s Notes.

This section (1371) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.070 , 517.110 , 522.020 , 522.030 .

432.320. Usurpation of office — Retention after expiration of term. [Repealed.]

Compiler’s Notes.

This section (1364) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 522.020 , 522.030 .

432.330. Promise to sell or purchase public office. [Repealed.]

Compiler’s Notes.

This section (1365) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 521.030 , 522.020 , 522.030 .

432.340. Taking a fee to procure grant or refusal of pardon. [Repealed.]

Compiler’s Notes.

This section (1370) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 521.040 .

432.350. Giving and taking bribes.

Any member of the General Assembly or any other executive, judicial, ministerial or legislative officer of this state or of any county or city, including members of boards of education and subdistrict trustees, who takes or agrees to take any bribe to do or omit to do any act in his official capacity shall forfeit his office and be disqualified from the right of suffrage for ten (10) years.

History. 1366: amend. Acts 1974, ch. 406, § 317.

NOTES TO DECISIONS

1.Bribery.

There was no violation of the defendant’s right to equal protection of the law where he was convicted of accepting a bribe, although the person claimed to have given the bribe was only to be tried for attempted bribery. Fanelli v. Commonwealth, 423 S.W.2d 255, 1968 Ky. LEXIS 479 ( Ky. 1968 ) (decision prior to 1975 amendment).

2.—Officer.

In order to violate this section, the bribe must be taken or agreed to while the person is an officer and, therefore, any agreement made prior to the officer’s election does not violate this section. Tharp v. Nolan, 119 Ky. 870 , 84 S.W. 1168, 27 Ky. L. Rptr. 326 , 1905 Ky. LEXIS 49 ( Ky. 1905 ) (decision prior to 1975 amendment).

A water commissioner is an officer within the meaning of this section. Commonwealth v. Howard, 379 S.W.2d 475, 1964 Ky. LEXIS 247 ( Ky. 1964 ) (decision prior to 1975 amendment).

3.—Members of Legislature.

Section 39 of the Kentucky Constitution does not exclusively vest in the General Assembly the power to try those charged with bribery or attempted bribery of members of the legislature. Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ) (decision prior to 1975 amendment).

4.—Disbarment.

Where the defendant attorney was convicted of accepting a bribe, the offense involved moral turpitude warranting his disbarment. Kentucky State Bar Asso. v. Howard, 437 S.W.2d 171, 1969 Ky. LEXIS 423 ( Ky. 1969 ) (decision prior to 1975 amendment).

5.—Punishment.

A Commonwealth’s attorney accused of accepting a bribe to quash indictments may be prosecuted either for the common-law offense of malfeasance in office or under this section, but the punishment assessed is limited to that prescribed under this section. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ) (decision prior to 1975 amendment).

6.Evidence.

Court erred in directing verdict of acquittal on bribery charge where there was evidence that director of building and housing had agreed on payment of a certain sum to a third party in return for dropping condemnation proceedings against certain property even though defendant had never touched the money himself. Commonwealth v. Hillebrand, 508 S.W.2d 566, 1974 Ky. LEXIS 613 ( Ky. 1974 ) (decision prior to 1975 amendment).

7.Indictment.

An indictment which alleged that defendant accepted money for an election committee with intent to influence mayor, but which failed to allege that the mayor received the money or had knowledge of and assented to the illegal intent did not charge a violation of this section. Commonwealth v. Smith, 536 S.W.2d 457, 1976 Ky. LEXIS 77 ( Ky. 1976 ), appeal denied, Smith v. Kentucky, 423 U.S. 909, 96 S. Ct. 210, 46 L. Ed. 2d 137, 1975 U.S. LEXIS 3017 (1975) (decision prior to 1974 amendment).

Cited in:

Commonwealth v. Fanelli, 445 S.W.2d 126, 1969 Ky. LEXIS 145 ( Ky. 1969 ).

Research References and Practice Aids

Cross-References.

Bribery and corrupt influences, Penal Code, KRS 521.010 to 521.040 .

Official misconduct in the first degree, KRS 522.020 .

School system, bribery in, KRS 156.465 .

State purchasing, bribery in, felony, KRS 45A.990 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Charges for Removal of Officer, Form 10.10.

Caldwell’s Kentucky Form Book, 5th Ed., Indictment for Malfeasance, Accepting Bribe, Form 10.05.

432.360. Officer issuing warrant in felony case without affidavit, information or personal knowledge. [Repealed.]

Compiler’s Notes.

This section (1372) was repealed by Acts 1962, ch. 234, § 61.

432.361. Failure to appear on bail bond. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 217, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.070 , 520.080 .

432.365. Assault of prison employee by a prisoner — Confinement of prisoners accused of violation. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 54, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.010 to 508.030 .

432.370. Escape of prisoner from jail. [Repealed.]

Compiler’s Notes.

This section (1235, 1338) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.020 to 520.040 .

432.380. Escape of prisoner engaged in county work. [Repealed.]

Compiler’s Notes.

This section (1379-6) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.030 , 520.040 .

432.390. Escape of convict from penitentiary or custody — Attempt — Within penitentiary or aiding another — Jurisdiction of courts. [Repealed.]

Compiler’s Notes.

This section (1232 to 1234: Acts 1952, ch. 97; 1962, ch. 49, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 520.030 .

432.400. Aiding another to escape from jail or custody. [Repealed.]

Compiler’s Notes.

This section (1239, 1357) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 520.020 to 520.060 .

432.410. Aiding another to escape from a penal institution of a city of the first class — Harboring or concealing him. [Repealed.]

Compiler’s Notes.

This section (2749) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 520.020 to 520.040 , 520.130 .

432.420. Harboring or concealing fugitive — Exceptions. [Repealed.]

Compiler’s Notes.

This section (1938) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.110 to 520.130 .

432.430. Aiding or inducing a convict to escape from a penitentiary. [Repealed.]

Compiler’s Notes.

This section (3806) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 506.010 , 520.020 to 520.040 .

432.440. Interfering with recapture of fugitive from penitentiary. [Repealed.]

Compiler’s Notes.

This section (1236) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 520.090 , 520.110 to 520.130 .

432.445. Resisting arrest — Offense defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 107, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.090 .

432.450. Unlawfully arresting prisoner from authorities. [Repealed.]

Compiler’s Notes.

This section (1238) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 520.020 to 520.040 .

432.460. Officer negligently permitting escape — Wilfully refusing to receive prisoner. [Repealed.]

Compiler’s Notes.

This section (1339) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 522.030 .

432.470. Officer voluntarily permitting escape of felon. [Repealed.]

Compiler’s Notes.

This section (1237) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 520.020 to 520.040 , 522.030 .

432.480. Enticing boy or girl away from house of reform. [Repealed.]

Compiler’s Notes.

This section (2095b-15, 2095b-32) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.070 , 520.110 to 520.130 .

432.490. Aiding escape from state institution for insane or feebleminded — Jurisdiction. [Renumbered KRS 210.995.]

Compiler’s Notes.

This section (216aa-107a) is recompiled as KRS 210.995 .

432.495. Trafficking with prison inmates. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 112, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 506.050 , 520.050 , 520.060 .

432.500. Hindering work of convicts — Furnishing narcotics, liquor, firearms — Exceptions as to physicians. [Repealed.]

Compiler’s Notes.

This section (1239a: Acts 1956, ch. 137, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 520.050 , 520.060 .

432.505. Rioting or damaging of penitentiary property by inmate — Holding hostage. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 49, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.040 , 512.020 to 512.040 , 525.020 to 525.040 .

432.510. Protection of prisoners — Power of officer to summon citizens, arm prisoners.

  1. Any person having custody of a person charged with a public offense shall summon to his aid as many of the able-bodied male citizens of his county between the ages of twenty-one (21) and fifty (50) years as may be necessary for the protection of the person in his custody. Any person so summoned who fails to obey the summons or verbal notice of the officer shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  2. Any officer having knowledge or reasonable grounds to believe that an effort will be made to rescue, injure or kill any person in his custody charged with a public offense shall immediately provide the means necessary to prevent such an act.
  3. Any officer in charge of a jail who has reasonable grounds to believe that the jail will be attacked by a mob or persons confederated or banded together to inflict violence upon any inmate, may arm the threatened inmates for their own protection.

History. 1241a-4.

432.520. Witness may be required to testify in prosecution under KRS 432.510 — Immunity.

In any prosecution under KRS 432.510 , no witness shall be excused from testifying on the ground that his testimony may incriminate himself. But, no such testimony shall be used against him in any prosecution except for perjury, and he shall be discharged from all liability for any violation of KRS 432.510 necessarily disclosed in his testimony.

History. 1241a-7.

NOTES TO DECISIONS

1.Immunity from Prosecution.

If the prosecution in which defendants testified was one under the provisions of the law, the immunity should be as broad as the constitutional guaranty against one giving evidence against himself. Commonwealth v. Barnett, 196 Ky. 731 , 245 S.W. 874, 1922 Ky. LEXIS 600 ( Ky. 1922 ).

This section is construed as giving immunity as broad as the constitutional provision against requiring one to incriminate himself. Taylor v. Commonwealth, 274 Ky. 51 , 118 S.W.2d 140, 1938 Ky. LEXIS 227 ( Ky. 1938 ).

Cited in:

Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ), overruled, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), overruled in part, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ).

432.530. Failure to come to aid of sheriff. [Repealed.]

Compiler’s Notes.

This section (1340) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.540. Employment of person under sentence in another state. [Repealed.]

Compiler’s Notes.

This section (1356) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.550. Bringing armed person into state to preserve peace or suppress violence.

No person shall, except with the consent of the General Assembly or of the Governor when the General Assembly is not in session, bring or cause to be brought into this state any armed person, not a citizen of this state, to preserve the peace, suppress domestic violence or to serve as a deputy of any officer or as a member of a posse comitatus, nor shall any officer knowingly summon any such person or any other person who has come into the state for that purpose to aid in suppressing violence. Any person who violates this section shall be fined not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000), or imprisoned for not less than six (6) nor more than twelve (12) months, or both.

History. 1376.

Research References and Practice Aids

Cross-References.

Armed persons not to be brought into the state except on application of General Assembly or governor, Const., § 225.

432.560. Bringing pauper into state or county. [Repealed.]

Compiler’s Notes.

This section (3922 to 3924) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

432.570. Restrictions on possession or use of radio capable of sending or receiving police messages — Penalty — Enforcement.

  1. It shall be unlawful for any person except a member of a police department or police force or an official with written authorization from the head of a department which regularly maintains a police radio system authorized or licensed by the Federal Communications Commission, to have in his or her possession, or in an automobile or other vehicle, or to equip or install in or on any automobile or other vehicle, any mobile radio set or apparatus capable of either receiving or transmitting radio or other messages or signals within the wave length or channel now or which may hereafter be allocated by the Federal Communications Commission, or its successor, for the purpose of police radios, or which may in any way intercept or interfere with the transmission of radio messages by any police or other peace officers. It shall be unlawful for any car, automobile, or other vehicle other than one publicly owned and entitled to an official license plate issued by the state issuing a license for the car, to have, or be equipped with the sets or apparatus even though the car is owned by an officer. This section shall not apply to any automobile or vehicle owned or operated by a member of a sheriff’s department authorized by the fiscal court to operate a radio communications system that is licensed by the Federal Communications Commission or other federal agency having the authority to license same. Nothing in this section shall preclude a probation and parole officer employed by the Department of Corrections from carrying on his person or in a private vehicle while conducting his official duties an authorized, state-issued portable radio apparatus capable of transmitting or receiving signals.
  2. Any person guilty of violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than fifty dollars ($50) and not exceeding five hundred dollars ($500), or imprisonment not exceeding twelve (12) months, or both so fined and imprisoned.
  3. It shall be the duty of any and all peace officers to seize and hold for evidence any and all equipment had or used in violation of the provisions of this section, and, upon conviction of the person having, equipping or using such equipment, it shall be the duty of the trial court to order such equipment or apparatus destroyed, forfeited, or escheated to the Commonwealth of Kentucky, and said property may be ordered destroyed, forfeited, or escheated as above provided without a conviction of the person charged with violating this section.
  4. Nothing contained in this section shall prohibit the possession of a radio by:
    1. An individual who is a retailer or wholesaler and in the ordinary course of his business offers such radios for sale or resale;
    2. A commercial or educational radio or television station, licensed by the Federal Communications Commission, at its place of business; or
    3. An individual who possesses such a radio, provided it is capable of receiving radio transmissions only and is not capable of sending or transmitting radio messages, at his place of residence; licensed commercial auto towing trucks; newspaper reporters and photographers; emergency management agency personnel authorized in writing by the director of the division of emergency management (for state personnel) or chief executive of the city or county (for their respective personnel); a person holding a valid license issued by the Federal Communications Commission in the amateur radio service; peace officers authorized in writing by the head of their law enforcement agency, Commonwealth’s attorneys and their assistants, county attorneys and their assistants, except that it shall be unlawful to use such radio to facilitate any criminal activity or to avoid apprehension by law enforcement officers. Violation of this section shall, in addition to any other penalty prescribed by law, result in a forfeiture to the local law enforcement agency of such radio.
  5. The provisions of this section shall not apply to a paid or volunteer member of a fire department or a paid or volunteer member of a public ambulance service licensed in Kentucky who has been given permission in writing by the chief of the fire department and the chief of each law enforcement agency whose frequency is to be monitored, or the director of the ambulance service and the chief of each law enforcement agency whose frequency is to be monitored, to possess a radio capable of receiving on a frequency allocated to a police department or law enforcement agency, whether the radio is in a vehicle or not.
  6. The secretary of the Finance and Administration Cabinet is hereby empowered by issuance of a secretary’s order to exempt from the prohibitions and penalties of this section the possession and use of any and all radio communication equipment that he finds is necessary to be owned and used by members of the general public and other nonpolice persons for utilization in the N.O.A.A. weather radio system.

History. Enact. Acts 1942, ch. 66, § 1; 1976, ch. 166, § 1; 1976 (Ex. Sess.), ch. 14, § 443, effective January 2, 1978; 1978, ch. 435, § 1, effective June 17, 1978; 1980, ch. 137, § 1, effective July 15, 1980; 1986, ch. 241, § 1, effective July 15, 1986; 1992, ch. 110, § 1, effective July 14, 1992; 1994, ch. 418, § 9, effective July 15, 1994; 1998, ch. 226, § 111, effective July 15, 1998; 2000, ch. 176, § 1, effective July 14, 2000.

Opinions of Attorney General.

All private cars, including those of peace officers, are prohibited from being equipped with any radio or other apparatus which is capable of either receiving or transmitting messages within the wave length or channel allocated for the purposes of police radios. OAG 66-495 .

Members of an organization known as REACT whose vehicles are equipped with radios capable of receiving police calls would be in violation of this section. OAG 70-368 .

The possession and use of a mobile radio set in a constable’s car with the transmitter and receiver on a police frequency relating to the communications system of the local city police would make the constable subject to the application of this section. OAG 71-281 .

Sheriffs of Kentucky and their deputies may use mobile radio communication equipment in their privately-owned vehicles in connection with their law enforcement and official duties, which equipment has been purchased by a fiscal court pursuant to KRS 70.210 without violating subsection (1) of this section. OAG 71-494 .

It is immaterial whether or not a radio set in an automobile is connected. OAG 72-817 .

Where the owner of a filling station who repairs police cars may have such cars for several days during servicing and the city has installed a police radio system in the owner’s private car for convenience, such installation is illegal and his appointment as a special policeman or auxiliary policeman would not cure such illegality. OAG 73-690 .

Since the word “person” under subsection (21) (now subsection (27)) of KRS 446.010 may include a corporation unless the context requires otherwise and since this section provides for an alternative punishment of fine or jail time, a corporation can come within the meaning of “person” as such word is used in this section. OAG 74-888 .

The term “capable” as used in the first sentence of subsection (1) of this section would include a radio set that may be converted by various simple adjustments to receive police broadcasts. OAG 74-888 .

The term “mobile” does not exclude a radio set utilized in an abode, regardless of the source of power or method of installation. OAG 74-888 .

Under KRS 189.950 and this section, the fiscal court does not have the authority to permit county auxiliary policemen to install flashing blue lights or police radios on their cars. OAG 75-500 .

Possession of radios capable of monitoring or transmitting police frequencies is illegal, and this includes merchants unless they only repair for or sell such radios to authorized individuals. OAG 76-10 .

As used in subsection (1) of this section in the phrase “any mobile radio set or apparatus” the term “mobile” modifies “radio set” only, not “apparatus” and thus the use or possession of any radio device or equipment, whether it be mobile or stationary, capable of intercepting or interfering with the wave length or channel assigned to the police by the F.C.C. is prohibited. OAG 76-92 .

A radio station can legally put a scanner that would receive only police broadcasts and not transmit in a mobile unit. OAG 78-384 .

The phrase “newspaper reporters and photographers” used in this section is broad enough to include news reporters of the entire news media, i.e., television, radio, newspapers and magazines, since if the exception were narrowly restricted to newspaper reporters, it would be unconstitutional, since it would be arbitrary. OAG 78-384 .

The use of police scanners in the “private automobiles” owned by official or professional members of the news media is legal under the statute in question. OAG 78-608 .

This section is impermissibly vague as applied to radar detectors because it does not adequately connote or embrace the use of radar detectors within the existing prohibition protecting the effectiveness of essential police radio communications. OAG 79-154 .

The chief of a fire department has no authority to permit fire fighters within his department and under his command to install radios in their private vehicles for use in the performance of their official duties if those radios are capable of receiving or transmitting police messages. Only those persons and organizations who can bring themselves within the exemptions and exceptions set forth in this section are permitted to use or possess such radios. OAG 82-126 .

A city police department is not required on the basis of subsections (1) to (4) of this section to authorize constables to use a radio system operating on a frequency licensed to the city or its police department for police use, or to provide to constables, radio dispatching and information support services. OAG 95-20 .

432.580. Unauthorized possession or use of federal food or cotton stamps. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 69, § 1) was repealed by Acts 1979 (Ex. Sess.), ch. 2, § 10, effective February 10, 1979.

432.590. Diversion of state or federally donated food commodities.

Whoever willfully sells, trades, barters, gives away or makes, or assists in making any unauthorized disposition of any food commodity donated under any program of the state or federal government, or shall withhold or threaten to withhold from or offer to provide the commodities to any person in order to influence the vote of any person at an election of public office, or whoever, not being an authorized recipient thereof, willfully converts to his own use or benefit any such food commodity, shall, upon conviction thereof, be punished by a fine of not less than $100 or more than $500, or by imprisonment for not less than thirty (30) days or more than six (6) months, or both.

History. Enact. Acts 1964, ch. 38, § 1.

CHAPTER 433 Offenses Against Property by Force

433.010. Arson. [Repealed.]

Compiler’s Notes.

This section (1167) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 513.010 to 513.030 .

433.020. Maliciously burning building other than a dwelling. [Repealed.]

Compiler’s Notes.

This section (1168) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 513.010 to 513.030 .

433.030. Maliciously burning property other than a building. [Repealed.]

Compiler’s Notes.

This section (1169) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 513.010 , 513.030 .

433.040. Burning personal property to defraud insurer. [Repealed.]

Compiler’s Notes.

This section (1170) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 513.060 .

433.050. Maliciously attempting to burn property — What constitutes attempt. [Repealed.]

Compiler’s Notes.

This section (1171, 1172) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.020 , 506.010 , 506.030 , 513.010 to 513.040 .

433.060. Intentionally burning field of another. [Repealed.]

Compiler’s Notes.

This section (1254a: Acts 1964, ch. 158, § 19) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.070. Unlawfully firing weeds, grass, capable of spreading. [Repealed.]

Compiler’s Notes.

This section (1254: Acts 1964, ch. 158, § 20) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.080. Negligently firing woods and damaging property. [Repealed.]

Compiler’s Notes.

This section (1255) was repealed by Acts 1964, ch. 158, § 21.

433.090. Fire in wooded area, near road; failure to keep under control and extinguish. [Repealed.]

Compiler’s Notes.

This section (1255-1) was repealed by Acts 1964, ch. 158, § 21.

433.100. Destroying fire prevention posters. [Repealed.]

Compiler’s Notes.

This section (1255a) was repealed by Acts 1964, ch. 158, § 21.

433.110. Damaging fire prevention equipment. [Repealed.]

Compiler’s Notes.

This section (1230) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 519.020 .

433.120. Robbery — Burglary — Possession of burglarious tools. [Repealed.]

Compiler’s Notes.

This section (1159) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.010 to 511.050 , 515.010 to 515.030 .

433.130. Burglary of bank or safe. [Repealed.]

Compiler’s Notes.

This section (1159a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 515.020 , 515.030 .

433.140. Armed robbery or burglary. [Repealed.]

Compiler’s Notes.

This section (1159a: Acts 1966, ch. 48, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.020 , 511.030 , 515.020 .

433.150. Armed assault with intent to rob. [Repealed.]

Compiler’s Notes.

This section (1160: Acts 1966, ch. 48, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 508.050 , 515.020 , 515.030 .

433.160. Aiding or comforting robber or burglar. [Repealed.]

Compiler’s Notes.

This section (1159a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 520.130 .

433.170. Robbery or larceny of certain instruments. [Repealed.]

Compiler’s Notes.

This section (1161) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 515.010 to 515.030 .

433.180. Stealing from public building — Robbing person in house — Housebreaking. [Repealed.]

Compiler’s Notes.

This section (1162: Acts 1942, ch. 140, §§ 1, 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.040 , 514.030 , 515.030 .

433.190. Breaking warehouse, storehouse, shop or room in boat with intent to steal. [Repealed.]

Compiler’s Notes.

This section (1164) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.040 , 514.030 .

433.200. Breaking railroad station or car with intent to kill or steal. [Repealed.]

Compiler’s Notes.

This section (1163) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.040 .

433.210. Opening or appropriating property in possession of a common carrier. [Repealed.]

Compiler’s Notes.

This section (1201b) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.010 , 514.030 .

433.220. Grand larceny — Taking of vehicle without consent of owner. [Repealed.]

Compiler’s Notes.

This section (1194, 2739g-58: Acts 1962, ch. 245, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 514.100 .

433.230. Petit larceny. [Repealed.]

Compiler’s Notes.

This section (1243: Acts 1962, ch. 245, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.234. Shoplifting.

  1. Willful concealment of unpurchased merchandise of any store or other mercantile establishment on the premises of such store shall be prima facie evidence of an intent to deprive the owner of his property without paying the purchase price therefor.
  2. All city and county law enforcement agencies shall cause to be made a photograph, a set of fingerprints, and a general descriptive report of all persons except juveniles arrested for theft through an act of shoplifting. If convicted, two (2) copies of each item shall be forwarded within thirty (30) days to the Department of Kentucky State Police of the Justice and Public Safety Cabinet.

History. Enact. Acts 1958, ch. 11, § 1; 1968, ch. 49, § 1; 1974, ch. 74, Art. V, § 24(3); 1974, ch. 406, § 318; 2007, ch. 85, § 315, effective June 26, 2007.

NOTES TO DECISIONS

Cited in:

Taylor Drugstores, Inc. v. Story, 760 S.W.2d 102, 1988 Ky. App. LEXIS 137 (Ky. Ct. App. 1988).

Opinions of Attorney General.

The Kentucky “shoplifting law” is constitutional because it does not permit either an unreasonable arrest or an unreasonable stopping. OAG 69-64 .

Subsection (1) of KRS 433.236 allows detention, which is not an arrest, for shoplifting by both commissioned and noncommissioned security officers while subsection (2) (now (3)) allows a peace officer to arrest for a misdemeanor involving larceny on probable cause without a warrant, which misdemeanor larceny offenses include shoplifting under this section as shoplifting involves a “larceny” under common law definition. OAG 74-94 .

Research References and Practice Aids

Cross-References.

Theft by unlawful taking or disposition, KRS 514.030 .

Kentucky Law Journal.

Lawson, Criminal Law Revision in Kentucky: Part II — Inchoate Crimes, 58 Ky. L.J. 695 (1970).

Kentucky Law Survey, Ausness, Torts, 65 Ky. L.J. 301 (1976-77).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Shopkeeper for False Imprisonment by Shopkeeper’s Employee, Form 121.03.

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

433.236. Detention and arrest of shoplifting suspect.

  1. A peace officer, security agent of a mercantile establishment, merchant or merchant’s employee who has probable cause for believing that goods held for sale by the merchant have been unlawfully taken by a person may take the person into custody and detain him in a reasonable manner for a reasonable length of time, on the premises of the mercantile establishment or off the premises of the mercantile establishment, if the persons enumerated in this section are in fresh pursuit, for any or all of the following purposes:
    1. To request identification;
    2. To verify such identification;
    3. To make reasonable inquiry as to whether such person has in his possession unpurchased merchandise, and to make reasonable investigation of the ownership of such merchandise;
    4. To recover or attempt to recover goods taken from the mercantile establishment by such person, or by others accompanying him;
    5. To inform a peace officer or law enforcement agency of the detention of the person and to surrender the person to the custody of a peace officer, and in the case of a minor, to inform the parents, guardian, or other person having custody of that minor of his detention, in addition to surrendering the minor to the custody of a peace officer.
  2. The recovery of goods taken from the mercantile establishment by the person detained or by others shall not limit the right of the persons named in subsection (1) of this section to detain such person for peace officers or otherwise accomplish the purposes of subsection (1).
  3. Any peace officer may arrest without warrant any person he has probable cause for believing has committed larceny in retail or wholesale establishments.

History. Enact. Acts 1958, ch. 11, § 2; 1968, ch. 49, § 2; 1978, ch. 75, § 1, effective June 17, 1978.

NOTES TO DECISIONS

Analysis

1.Construction With Other Laws.

Subsection (3) takes precedence over KRS 431.005(1)(d) in situations involving theft from a retail establishment both because it is more specific and because it was enacted later in time. Stogner v. Commonwealth, 35 S.W.3d 831, 2000 Ky. App. LEXIS 89 (Ky. Ct. App. 2000).

As the more specific statute, the Court of Appeals of Kentucky interprets Ky. Rev. Stat. Ann. § 433.236 as controlling in cases of shoplifting. When an individual has committed larceny in a retail or wholesale store, a police officer may effectuate an arrest of such individual under § 433.236 . Conversely, the Court of Appeals interprets Ky. Rev. Stat. Ann. § 431.015 as generally applying to other misdemeanor offenses committed in the officer's presence. Burdette v. Commonwealth, 495 S.W.3d 156, 2015 Ky. App. LEXIS 153 (Ky. Ct. App. 2015).

2.Probable Cause.

In an action by a customer against a store owner for alleged false imprisonment committed when the store’s security employee took custody of and detained the customer as a suspected shoplifter, the store owner had the burden of proving its defense of probable cause as justification for taking custody of and detaining the customer. Consolidated Sales Co. v. Malone, 530 S.W.2d 680, 1975 Ky. LEXIS 55 ( Ky. 1975 ).

In an action by a customer against a store owner for alleged false imprisonment committed when the store’s security employee took custody of and detained the customer as a suspected shoplifter, defensive evidence that the security employee had acted in good faith and had treated the customer in a reasonable manner was sufficient for a jury question on the issue of probable cause. Consolidated Sales Co. v. Malone, 530 S.W.2d 680, 1975 Ky. LEXIS 55 ( Ky. 1975 ).

Where a store owner did not plead the defense of probable cause as justification for taking custody of and detaining a suspected shoplifting customer, but where evidence which had no relevancy to any other purpose was admitted without objection in the customer’s action for false imprisonment, the reception of such evidence was tantamount to an amendment of the store owner’s answer to cover the issue of probable cause. Consolidated Sales Co. v. Malone, 530 S.W.2d 680, 1975 Ky. LEXIS 55 ( Ky. 1975 ).

A police officer may arrest a shoplifter without a warrant solely on the information provided by the merchant even though the misdemeanor was not committed in his presence. Superx Drugs of Kentucky, Inc. v. Rice, 554 S.W.2d 903, 1977 Ky. App. LEXIS 783 (Ky. Ct. App. 1977).

In an action by a customer against a store owner for alleged false imprisonment and malicious prosecution, the customer’s action of the placing of items in her purse, even if only partially hidden from view, was sufficient to give the store personnel reason to invoke subsection (1) of this section; therefore, her claims for false imprisonment and malicious prosecution failed and the trial court erred in failing to direct a verdict in favor of the store owner. Taylor Drugstores, Inc. v. Story, 760 S.W.2d 102, 1988 Ky. App. LEXIS 137 (Ky. Ct. App. 1988).

3.Detention.

A merchant’s limited privilege to recover goods believed to have been stolen includes the privilege to detain the person for the time necessary to make a reasonable investigation of the facts. Superx Drugs of Kentucky, Inc. v. Rice, 554 S.W.2d 903, 1977 Ky. App. LEXIS 783 (Ky. Ct. App. 1977).

In an action for false imprisonment, plaintiff can recover damages only for that mental suffering and embarrassment endured during the period prior to her arrest and, thus, $75,000 compensatory damage award was clearly excessive where plaintiff was detained less than one hour prior to her arrest and was treated respectfully. Superx Drugs of Kentucky, Inc. v. Rice, 554 S.W.2d 903, 1977 Ky. App. LEXIS 783 (Ky. Ct. App. 1977).

Because KRS 433.236 authorized a store employee’s investigation into a possible shoplifting incident and detention of a customer for a reasonable amount of time, when such was coupled with the fact that the evidence showed that she was not mistreated in any way, the trial court erred in failing to direct a verdict in favor of that employee and his employer. Messer v. Robinson, 250 S.W.3d 344, 2008 Ky. App. LEXIS 75 (Ky. Ct. App. 2008).

4.—Lawfulness.

Ultimately, the question of whether a detention was lawful is one of fact to be resolved by a jury under proper instructions from the trial court. As in all cases involving questions of fact, the weight to be given to conflicting evidence and the credibility to be afforded each witness remains within the province of the jury. It is entitled to accept the plaintiff’s version of the incident and reject the defendant’s version or vice versa. Kessack v. Kentucky Bar Ass'n, 877 S.W.2d 615, 1994 Ky. LEXIS 67 ( Ky. 1994 ).

The defendant was not entitled to summary judgment in an action for false imprisonment and the intentional infliction of emotional distress arising from the detention of the plaintiff after the store’s inventory and theft control device set off a sensor alarm as the plaintiff left the store where the defendant asserted (1) that the entire episode lasted no more than 30 minutes, (2) that its employees acted reasonably in the manner and in the length of time they detained the plaintiff, and (3) that the inquiries they made of her were reasonable under the circumstances, but the plaintiff asserted (1) that she was detained by store employees for approximately 45 minutes, (2) that she was subjected to humiliation, (3) that one of the employees told her to sit on a bench near the front of the store and then pushed a shopping cart in front of her to prevent her from leaving, (4) that the store manager was dilatory in responding to her detention, and (5) that the situation could have been dealt with more effectively, efficiently, and reasonably if the defendant had only fulfilled her persistent request to inspect her purse. Birdsong v. Wal-Mart Stores, 74 S.W.3d 754, 2001 Ky. App. LEXIS 67 (Ky. Ct. App. 2001).

5.Improper Evidence.

In action by customer against store for false arrest and imprisonment, clerk’s testimony of the plaintiff’s prior guilty plea to misdemeanor of theft by deception had no probative value on the issue of mitigation of damages where store made no showing that prior guilty plea lessened plaintiff’s humiliation and, under the well-settled case law, it could not properly have been admitted for any other reason. Considering the nature of the evidence and its effect of impeaching plaintiff’s wife’s testimony that she was not aware of any criminal record of plaintiff, the error in admitting the evidence was clearly prejudicial. Daugherty v. Kuhn's Big K Store, 663 S.W.2d 748, 1983 Ky. App. LEXIS 394 (Ky. Ct. App. 1983).

Defendant's motion to suppress evidence seized from her purse and person following her arrest for shoplifting was properly denied where Ky. Rev. Stat. Ann. § 433.236 , rather than Ky. Rev. Stat. Ann. § 431.015 , was the controlling statute, and under that statute, and thus, her arrest was lawful. Burdette v. Commonwealth, 495 S.W.3d 156, 2015 Ky. App. LEXIS 153 (Ky. Ct. App. 2015).

6.Warrantless Arrest.

Subsection (3) does not limit warrantless police arrests for shoplifting solely to situations involving detention by the merchant. Stogner v. Commonwealth, 35 S.W.3d 831, 2000 Ky. App. LEXIS 89 (Ky. Ct. App. 2000).

Notes to Unpublished Decisions

1.Application.

Unpublished decision: District court improperly granted summary judgment to a retailer on false imprisonment claim on the basis of the “shopkeeper's privilege” affirmative defense because the district court impermissibly shifted the burden to the customer to refute the affirmative defense. In doing so, it violated both summary judgment procedure and the underlying substantive law that places the burden of proving an affirmative defense on the retailer. Snyder v. Kohl's Dep't Stores, Inc., 580 Fed. Appx. 458, 2014 U.S. App. LEXIS 19599 (6th Cir. Ky. 2014 ).

Opinions of Attorney General.

A special police officer appointment under KRS 61.360 would not give such officer the power to arrest a shoplifter. He would only have the power of detention given under this section and he would have the same detention authority as any other employee of the establishment. OAG 68-498 .

Detention under this section would not be authorized beyond the time reasonably necessary to ascertain that the property has been taken and to regain possession. OAG 69-64 .

If an individual is being detained against his will, he has a right to know the reason for the detention and a request must be made for the return of the merchandise. OAG 69-64 .

If the retailer either states to a police officer that he saw merchandise concealed by the person accused or produces a witness who saw the taking, the police officer would have probable cause for arresting the accused. OAG 69-64 .

Subsection (2) (now (3)) of this section extends the peace officer’s power of arrest and he may arrest without a warrant regardless of the value of the merchandise taken. OAG 69-64 .

Under circumstances in which the concealment is such that the merchant can reasonably believe that the concealment is with the intent to steal, a merchant may detain a person on the premises, but to detain a person off the premises, the merchant must be in fresh pursuit. OAG 69-64 .

Under the “shoplifting law,” the merchant or his employee may use reasonable force to detain a person he believes has concealed merchandise and has not paid for it but he may not use such force as would threaten serious bodily harm to the person and should refrain from laying hands on the person or using any force, either implied or actual, unless it is necessary to detain the person for the purpose of recovering the merchandise. OAG 69-64 .

Subsection (1) of this section allows detention, which is not an arrest, for shoplifting by both commissioned and noncommissioned security officers while subsection (2) (now (3)) allows a peace officer to arrest for a misdemeanor involving larceny on probable cause without a warrant, and a misdemeanor involving larceny offenses includes petit larceny under KRS 433.230 (now repealed) and shoplifting under KRS 433.234 as shoplifting involves a “larceny” under common law definition. OAG 74-94 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ausness, Torts, 65 Ky. L.J. 301 (1976-77).

Kentucky Law Survey, Ashdown and Hoskins, Torts, 67 Ky. L.J. 695 (1978-1979).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Northern Kentucky Law Review.

Bales and Hamilton, Jr., Workplace Investigations in Kentucky, 27 N. Ky. L. Rev. 201 (2000).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for False Imprisonment, § 121.00.

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint Against Shopkeeper for False Imprisonment by Shopkeeper’s Employee, Form 121.03.

Kentucky Instructions to Juries (Civil), 5th Ed., False Imprisonment, §§ 30.01, 30.02.

433.240. Taking or damaging property unlawfully but without felonious intent. [Repealed.]

Compiler’s Notes.

This section (1256) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.010 to 512.040 , 514.030 .

433.250. Stealing cattle — Hog — Fowl. [Repealed.]

Compiler’s Notes.

This section (1195, 1196, 1201c, 1243: Acts 1952, ch. 36) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.255. Governor may offer reward for apprehension and conviction of livestock thief.

When in any community of the state there have been repeated or aggravated instances of larceny of livestock, the Governor may offer a reward for the apprehension and conviction of any person guilty of larceny of livestock, as defined in KRS 446.010 , in such community, and in his or her discretion may employ detectives, not exceeding two (2) at any one (1) time, for the ferreting out, apprehension, and conviction of any offender. The reward may be in any sum fixed by the Governor, not exceeding $1,000. The Governor shall by executive proclamation designate the boundaries of the community to which the reward shall apply. The reward shall be paid out of the Governor’s general emergency fund.

HISTORY: Enact. Acts 1952, ch. 163, § 1, effective June 19, 1952; 2017 ch. 129, § 29, effective June 29, 2017.

433.260. Cutting and taking timber. [Repealed.]

Compiler’s Notes.

This section (1201, 1244) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.270. Unlawfully mining or removing coal. [Repealed.]

Compiler’s Notes.

This section (1244a-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.280. Taking or destroying tobacco plants. [Repealed.]

Compiler’s Notes.

This section (1201a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.290. Receiving stolen property. [Repealed.]

Compiler’s Notes.

This section (1199) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.110 .

433.300. Receiving property pertaining to military establishment of state. [Repealed.]

Compiler’s Notes.

This section (2711a-206) was repealed by Acts 1974, ch.406, § 336, effective January 1, 1975. For present law, see KRS 514.110 .

433.310. Enticing another to breach contract to labor. [Repealed.]

Compiler’s Notes.

This section (1349) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

433.320. Wilfully damaging watercraft. [Repealed.]

Compiler’s Notes.

This section (1198) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.330. Maliciously damaging salt works. [Repealed.]

Compiler’s Notes.

This section (1229) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.340. Damaging levee. [Repealed.]

Compiler’s Notes.

This section (938a-11) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.350. Damaging state-operated bridge or ferry. [Repealed.]

Compiler’s Notes.

This section (4356zb-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.360. Damaging railway, lock, dam or bridge. [Repealed.]

Compiler’s Notes.

This section (1227) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.370. Hindering transportation by violence. [Repealed.]

Compiler’s Notes.

This section (802, 804) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.060 , 525.060 .

433.380. Hindering transportation by coercion, intimidation, trespass. [Repealed.]

Compiler’s Notes.

This section (803, 804) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.080 , 511.070 , 511.080 , 512.020 to 512.060 , 525.060 .

433.390. Displacing or damaging railroad track, switch, bridge. [Repealed.]

Compiler’s Notes.

This section (807) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 .

433.395. Trespass upon posted railroad property — Liability of parent for knowingly permitting trespass by child — Exceptions. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 48, §§ 1 to 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 502.010 , 511.070 .

433.400. Unlawfully tampering with railroad car or locomotive — Uncoupling train. [Repealed.]

Compiler’s Notes.

This section (807a: Acts 1944, ch. 148, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.410. Interfering with interurban electric railroad — Damaging reservoir. [Repealed.]

Compiler’s Notes.

This section (842a-6) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.420. Wilfully obstructing street railroad. [Repealed.]

Compiler’s Notes.

This section (1342) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.080 , 525.060 , 525.140 .

433.430. Interfering with communications. [Repealed.]

Compiler’s Notes.

This section (1231: amend. Acts 1974, ch. 406, § 320) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 438.210 .

433.440. Wilfully obstructing road. [Repealed.]

Compiler’s Notes.

This section (1241) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.140 .

433.450. Removal of injurious substance from highway. [Repealed.]

Compiler’s Notes.

This section (2739g-57, 2739g-69ee; amend. Acts 1960, ch. 178, § 1; 1974, ch. 406, § 321) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 189.754 .

433.460. Wilfully causing explosion on another’s property. [Repealed.]

Compiler’s Notes.

This section (1375: Acts 1960, ch. 42, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 513.030 , 513.040 .

433.470. Supplier of dynamite to keep register. [Repealed.]

Compiler’s Notes.

This section (1374) was repealed by Acts 1976, ch. 143, § 14. For present law, see KRS 351.365 .

433.480. Wilfully damaging public building. [Repealed.]

Compiler’s Notes.

This section (1258) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.490. Fines for trespass on or injury to public property of the state or a county. [Repealed.]

Compiler’s Notes.

This section (3951) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 534.040 .

433.500. Damaging state capitols or office buildings — Creating nuisance. [Repealed.]

Compiler’s Notes.

This section (1261, 1262) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.510. Grazing livestock on capitol grounds. [Repealed.]

Compiler’s Notes.

This section (1260a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

433.520. Wrongfully converting electric current; tampering with meter. [Repealed.]

Compiler’s Notes.

This section (1262a-1) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.521. Wrongful conversion of water, electricity or gas — Tampering with meter. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 46, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

433.522. Damaging meter, conduit or other apparatus. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 46, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.523. Possession of contrivance for tampering with meter. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 46, § 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 514.060 .

433.524. Knowingly receiving benefit of water, electricity or gas wrongfully diverted. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 46, § 4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

433.525. Indictment may embrace several acts. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 46, § 5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

433.530. Injuring electrical machinery. [Repealed.]

Compiler’s Notes.

This section (1262a-2) was repealed by Acts 1942, ch. 46, §§ 6, 7. For present law, see KRS 512.020 to 512.040 .

433.531. Manufacture, use, possession, transportation or transfer of equipment for theft of telecommunication service. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 149, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

433.533. Equipment for theft of telecommunication service — Search warrant for — Destruction. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 149, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

433.540. Possession of contrivance to tamper with meter. [Repealed.]

Compiler’s Notes.

This section (1262a-3) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.550. Knowingly receiving benefit of current wrongfully diverted. [Repealed.]

Compiler’s Notes.

This section (1262a-4) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.560. Indictment may embrace several acts. [Repealed.]

Compiler’s Notes.

This section (1262a-5) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.570. Wrongfully converting water; tampering with meter. [Repealed.]

Compiler’s Notes.

This section (1252a-1) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.580. Damaging meter, pipe, conduit, hydrant. [Repealed.]

Compiler’s Notes.

This section (1252a-2) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.590. Possession of contrivance to tamper with meter. [Repealed.]

Compiler’s Notes.

This section (1252a-3) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.600. Knowingly receiving benefit of water wrongfully diverted. [Repealed.]

Compiler’s Notes.

This section (1252a-4) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.610. Indictment may embrace several acts. [Repealed.]

Compiler’s Notes.

This section (1252a-5) was repealed by Acts 1942, ch. 46, §§ 6, 7.

433.615. Tampering with parking meter, coin telephone or vending machine — Possession of key or device designed to open same. [Repealed.]

Compiler’s Notes.

This section (Acts 1972, ch. 328, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.050 , 512.020 to 512.040 .

433.620. Tampering with vehicle. [Repealed.]

Compiler’s Notes.

This section (2739g-54, 2739g-65) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.630. Damaging or removing part of vehicle. [Repealed.]

Compiler’s Notes.

This section (2739g-55, 2739g-65) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.640. Defacing or altering motor vehicle or farm tractor serial number. [Repealed.]

Compiler’s Notes.

This section (2739g-56: Acts 1952, ch. 15, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.120 .

433.650. Disinterring human body. [Repealed.]

Compiler’s Notes.

This section (1335) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.120 .

433.660. Violating graves. [Repealed.]

Compiler’s Notes.

This section (1336) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.110 .

433.670. Permitting livestock to graze in graveyard. [Repealed.]

Compiler’s Notes.

This section (Acts 1873, ch. 956) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.040 , 525.110 .

433.680. Damaging literary work in public custody. [Repealed.]

Compiler’s Notes.

This section (1264) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.040 .

433.690. Wrongfully entering park — Injuring deer, elk or buffalo. [Repealed.]

Compiler’s Notes.

This section (1250) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 150.690 .

433.700. Shooting, hunting or fishing on land of another. [Repealed.]

Compiler’s Notes.

This section (1259) was repealed by Acts 1960, ch. 74, § 3.

433.710. Fishing in or destroying private fish pond. [Repealed.]

Compiler’s Notes.

This section (1252) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 150.700 , 150.645 .

433.720. Trespassing — Liabilities of hunters and landowners. [Repealed.]

Compiler’s Notes.

This section (1228a: amend. Acts 1964, ch. 162, § 1; 1966, ch. 71, § 1; 1974, ch. 406, § 322) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 150.700 , 150.645 .

433.730. Leaving gate open or removing fence — Stealing fruit or vegetables. [Repealed.]

Compiler’s Notes.

This section (1260) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 511.070 , 511.080 , 512.020 to 512.040 , 514.030 .

433.740. Destroying or damaging trees — Quarrying stone — Damaging vegetables or fence. [Repealed.]

Compiler’s Notes.

This section (1257) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.750. Injuring public property or right-of-way.

Any person who picks, pulls, digs, tears up, cuts, breaks, burns or otherwise damages any tree, shrub, flower, vine, bush or turf on the right of way of any state highway or county road or upon any land set aside, dedicated or maintained by this state as a public park or as a refuge or sanctuary for wild animals, birds or fish, without having first obtained permission in writing of the engineer having charge of the maintenance of the highway, or the superintendent or custodian of the park, refuge or sanctuary shall be fined not less than $25 nor more than $300.

History. 1257-1: amend. Acts 1960, ch. 178, § 2; 1960, ch. 49, § 1; 1966, ch. 23, § 76.

Legislative Research Commission Notes.

The amendment of this section by Acts 1960, ch. 49 was declared inconsistent with Acts 1960, ch. 178, § 2 by the Reviser and, was repealed by Acts 1966, ch. 255, § 283.

NOTES TO DECISIONS

1.Acts of Adjoining Landowner.

The Commonwealth may recover damages from a landowner whose land adjoined the highway where the trees cut down were on the highway right of way even though the trees were within one foot of the landowner’s property and the roots and limbs extended onto his land. Commonwealth ex rel. Keck v. Shouse, 245 S.W.2d 441, 1952 Ky. LEXIS 587 ( Ky. 1952 ).

Research References and Practice Aids

Cross-References.

Criminal mischief, KRS 512.020 to 512.040 .

433.753. Criminal littering on public highway — Rewards for information.

  1. When any paper, waste material, litter, or other refuse is thrown or dropped from a motor vehicle, the operator thereof shall be deemed prima facie to be guilty of criminal littering.
  2. It shall be the duty of the Department of Kentucky State Police, county sheriffs and police officers, solid waste coordinators appointed by a county or waste management district, city police officers, and all other law enforcement and peace officers within their respective jurisdictions, to enforce the criminal littering laws and the provisions of KRS 224.40-100 .
  3. Any city or county may offer and pay rewards for the giving of information leading to the arrest and conviction of any person, firm, or corporation for commission of the offense of criminal littering.
  4. Violators may prepay to the Circuit Court clerk if prepayment is so noted on the citation and if the littering offense is not combined with an offense that is not prepayable.

History. Enact. Acts 1966, ch. 23, § 77; 1974, ch. 406, § 332; 2002, ch. 342, § 8, effective July 15, 2002; 2007, ch. 85, § 316, effective June 26, 2007.

Opinions of Attorney General.

A forest warden may act as a peace officer for the protection of the forests of the state by enforcing this section and KRS 433.757 , but he may not act as a peace officer in enforcing these laws if the littering is not directly related to the protection of the forests of the state. OAG 70-550 .

To the extent that a fiscal court cannot agree not to enforce the laws regarding the littering of public highways, a contract whereby a coal company would pay a fee to the county, based on the tonnage hauled, to compensate for future expected damages to county roads would be impermissible. OAG 76-170 .

Research References and Practice Aids

Cross-References.

Criminal littering, KRS 512.070 .

Removal of injurious substance from highway, KRS 189.754 .

433.757. Littering public waters — Reward for information.

  1. When any litter as defined in KRS 512.010 is thrown or dropped from a motorboat or vessel as defined in KRS 235.010 , the operator thereof shall be deemed prima facie to have violated KRS 512.070 .
  2. It shall be the duty of officers of the Department of Fish and Wildlife Resources as provided in KRS 235.010 and KRS Chapter 150 and all other law enforcement and peace officers of the Commonwealth and its political subdivisions and solid waste coordinators to enforce the provisions of KRS 512.070 .
  3. Any city or county may offer and pay rewards for the giving of information leading to the arrest and conviction of any person, firm, or corporation for a violation of KRS 512.070 .
  4. Violators may prepay to the Circuit Court clerk if prepayment is so noted on the citation and if the littering offense is not combined with an offense that is not prepayable.

History. Enact. Acts 1966, ch. 23, § 78; 1972, ch. 273, § 7; 1974, ch. 292, § 25; 1974, ch. 406, § 323; 1998, ch. 23, § 17, effective July 15, 1998; 2002, ch. 342, § 9, effective July 15, 2002.

Opinions of Attorney General.

A forest warden may act as a peace officer for the protection of the forests of the state by enforcing KRS 433.753 and this section, but he may not act as a peace officer in enforcing these laws if the littering is not directly related to the protection of the forests of the state. OAG 70-550 .

Research References and Practice Aids

Cross-References.

Criminal littering, KRS 512.010 , 512.070 .

Kentucky Law Journal.

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

433.760. Damaging bridge, guideboard, road, ditch, monument or bench. [Repealed.]

Compiler’s Notes.

This section (4343, 4349) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 .

433.770. Willfully removing or damaging boundary marker.

  1. Any person who fraudulently and willfully removes, defaces, cuts down, or destroys a cornertree, post, cornerstone, or any monument erected to designate the boundary of this state, or of any county or city, or the boundary of any tract or lot of land, shall be guilty of a Class D felony and shall cause the marker, at his or her own expense, to be reestablished by a professional land surveyor.
  2. Any person who willfully and knowingly, but without a felonious intent, removes, defaces, cuts down, or destroys a tree, post, stone, or any monument erected to designate the boundaries of this state or of any county or city, or the boundaries of any tract or lot of land, shall cause the marker, at his or her own expense, to be reestablished by a professional land surveyor.

History. 1228, 1256: amend. Acts 1992, ch. 463, § 46, effective July 14, 1992; 1998, ch. 214, § 42, effective January 1, 1999.

NOTES TO DECISIONS

1.Monument.

Fence on boundary line is a “monument” within meaning of this section prohibiting destruction or damaging. Mulberry v. Commonwealth, 408 S.W.2d 649, 1966 Ky. LEXIS 134 ( Ky. 1966 ).

2.Indictment.

Where the indictment charged a fraudulent and wilful cutting down and destruction of a corner tree of a survey of a tract of land, this sufficiently stated an offense under this section. Commonwealth v. Gregory, 121 Ky. 458 , 89 S.W. 477, 28 Ky. L. Rptr. 407 , 1905 Ky. LEXIS 229 ( Ky. 1905 ).

3.Instructions.

Subsection (2) of this section is a lesser degree of offense set out in subsection (1), and an instruction under the former should be given where evidence is circumstantial and there is no showing of fraudulent intent. Ramsey v. Commonwealth, 256 Ky. 463 , 76 S.W.2d 272, 1934 Ky. LEXIS 430 ( Ky. 1934 ).

Cited in:

Gastineau v. McCoy, 190 Ky. 463 , 227 S.W. 801, 1921 Ky. LEXIS 467 ( Ky. 1921 ).

Research References and Practice Aids

Cross-References.

Criminal mischief, KRS 512.020 to 512.040 .

433.780. Occupant of shanty boat landing on private premises. [Repealed.]

Compiler’s Notes.

This section (1265) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980.

433.790. Occupant of shanty boat stealing from private premises. [Repealed.]

Compiler’s Notes.

This section (1266) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

433.800. Altering or defacing brands. [Repealed.]

Compiler’s Notes.

This section (1245: amend. Acts 1974, ch. 406, § 324) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 253.990 .

433.810. Injuring, poisoning or killing cattle. [Repealed.]

Compiler’s Notes.

This section (1240, 1249) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.130 .

433.820. Attempting to poison honey bees. [Repealed.]

Compiler’s Notes.

This section (1247) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.130 .

433.830. Killing or wounding pet deer. [Repealed.]

Compiler’s Notes.

This section (1251) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.130 .

433.840. Injuring homing or carrier pigeon. [Repealed.]

Compiler’s Notes.

This section (1376p-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.130 .

433.850. Railroad engineer killing or crippling livestock. [Repealed.]

Compiler’s Notes.

This section (1248) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 512.020 to 512.040 , 525.130 .

433.860. Erecting or maintaining spite fence. [Repealed.]

Compiler’s Notes.

This section (1788a-1 to 1788a-4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

433.865. Theft of dairy equipment.

  1. A person is guilty of theft of milk cases, cabinets, or other dairy equipment by unlawful taking or disposition when he:
    1. Receives, takes, stores, buys, sells, disposes of, uses, or otherwise possesses any milk case, milk cabinet, or other dairy equipment without the consent of the owner;
    2. Refuses to return any milk case, cabinet, or other dairy equipment to the owner upon demand; or
    3. Defaces, erases, obliterates, covers up, or otherwise removes or conceals any name, registered trademark, or other business identification of an owner of a milk case, cabinet, or other dairy equipment for the purpose of destroying or removing from the milk case, cabinet, or other dairy equipment evidence of its ownership.
  2. Theft of milk cases, cabinets, or other dairy equipment is punishable by a minimum fine of one hundred dollars ($100) and a maximum fine of three hundred dollars ($300).

History. Enact. Acts 1988, ch. 305, § 1, effective July 15, 1988.

433.870. Defacing or carrying away formation in cave exhibited to public. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 219, § 1) was repealed by Acts 1988, ch. 168, § 9, effective July 15, 1988.

Cave Protection

433.871. Definitions.

As used in this chapter, the following words shall have the meanings stated unless the context requires otherwise:

  1. “Cave” means any naturally occurring void, cavity, recess, or system of interconnecting passages beneath the surface of the earth containing a black zone including natural subterranean water and drainage systems, but not including any mine, tunnel, aqueduct, or other man-made excavation, which is large enough to permit a person to enter. The term “cave” includes or is synonymous with “cavern.”
  2. “Commercial cave” means any cave utilized by the owner for the purposes of exhibition to the general public, whether as a profit or nonprofit enterprise, wherein a fee for entry is collected.
  3. “Gate” means any structure or device situated so as to limit or prohibit access or entry to any cave.
  4. “Person” or “persons” means any individual, partnership, firm, association, trust, or corporation or other legal entity.
  5. “Owner” means a person who owns title to land wherein a cave is located, including a person who owns title to a leasehold estate in the land and specifically including the Commonwealth and any of its agencies, departments, boards, bureaus, commissions, or authorities as well as counties, municipalities and other political subdivisions of the Commonwealth.
  6. “Speleothem” means a natural mineral formation or deposit occurring in a cave. This shall include or be synonymous with, but not restricted to stalagmite, stalactite, helectite, shield, anthodite, gypsum flower and needle, angel’s hair, soda straw, drapery, bacon, cave pearl, popcorn, coral, rimstone dam, column, palette, flowstone, et cetera.
  7. “Speleogen” means an erosional feature of the cave boundary and includes or is synonymous with, but not limited to anastomoses, scallops, rills, flutes, spongework, boxwork, and pendants.
  8. “Material” means all or any part of any archaeological, paleontological, biological, or historical item including, but not limited to, any petroglyph, pictograph, basketry, human remains, tool, beads, pottery, projectile point, remains of historical mining activity or any other occupation, found in any cave.
  9. “Cave life” means any life form which normally occurs in, uses, visits, or inhabits any cave or subterranean water system, excepting those animals and species covered by any of the game laws of the Commonwealth of Kentucky.
  10. “Troglobitic” means or refers to any form of cave life specifically adapted to the cave environment and which carries out its entire life cycle in the cave.
  11. “Troglophilic” means or refers to any form of cave life which, although lacking specific biological adaptations necessary for permanent residence in any cave, carries out at least a portion of its life cycle in the cave.

History. Enact. Acts 1988, ch. 168, § 1, effective July 15, 1988.

433.873. Wrongful disturbance or damage to cave surfaces or material found therein.

  1. It shall be unlawful for any person, without the express, prior, written permission of the owner, to willfully and knowingly:
    1. Break, break off, crack, carve upon, write, burn, or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or any material which may be found therein, notwithstanding whether such material is attached or broken, including speleothems, speleogens, and sedimentary deposits. The provisions of this section shall not prohibit minimal disturbance for scientific exploration.
    2. Break, force, tamper with or otherwise disturb a door, lock, gate, or other obstruction designed to control or prevent access to any cave, even though entrance thereto may not be gained.
    3. Place any gate or other obstruction which may restrict the movement of air or animals through such device.
    4. Deface, tamper with or remove a sign stating that a cave is posted or citing provisions of this chapter.
    5. Excavate, remove, destroy, injure, deface, or in any other manner disturb any burial grounds, historic or prehistoric resources, archaeological or paleontological site or any part thereof, including fossils, bones, relics, inscriptions, saltpeter workings, remains of historical human activity, or any other such features which may be found in any cave, except those caves owned by the Commonwealth or designated as Commonwealth archaeological sites or zones, and which are subject to the provisions of KRS 164.705 to 164.735 .
  2. The entering or remaining in a cave which has not been posted by the owner shall not by itself constitute a violation of this section.

History. Enact. Acts 1988, ch. 168, § 2, effective July 15, 1988.

433.875. Unlawful dumping, disposal or burning within cave.

It shall be unlawful to store, dump, litter, dispose of or otherwise place any refuse, garbage, dead animals, sewage, toxic substances harmful to cave life or humans, or to store other such similar materials in any quantity in any cave. It shall also be unlawful to burn within a cave any material which produces any smoke or gas which is harmful to any naturally occurring organisms in the cave, except acetylene gas produced by carbide lamps.

History. Enact. Acts 1988, ch. 168, § 3, effective July 15, 1988.

433.877. Unlawful removal or disturbance of naturally occurring organisms in cave.

  1. It shall be unlawful to remove, kill, harm, or otherwise disturb any naturally occurring organism found within any cave, except for safety or health reasons. Scientific collecting permits may be obtained from the state nongame biologist.
  2. It shall also be unlawful to collect any form of troglobitic or troglophilic cave life for commercial sale, whether or not a profit is gained by such sale.

History. Enact. Acts 1988, ch. 168, § 4, effective July 15, 1988.

433.879. Excavation permits — Requirements — Supervision by state archaeologist and Kentucky Heritage Council.

  1. In addition to the written permission of the owner required by KRS 433.873(1), a person shall also obtain a permit from the state archaeologist prior to excavating or removing any archaeological, paleontological, prehistoric or historic feature of any cave. The state archaeologist shall issue a permit to excavate or remove such a feature if he finds that it is in the best interest of the Commonwealth and that the applicant meets the criteria of this section and is an historic, scientific or educational institution, professional archaeologist or amateur who is qualified and recognized in the areas of field investigations or archaeology. The permit shall be issued for a period of two (2) years and may be renewed upon expiration. The permit shall not be transferable; however, the provisions of this section shall not preclude any person from working under the direct supervision of the permittee.
  2. All field investigations, explorations or recovery operations undertaken under this section shall be carried out under the general supervision of the state archaeologist and the Kentucky Heritage Council and in a manner to ensure that the maximum amount of historic, scientific, archaeologic, and educational information may be recovered and preserved in addition to the physical recovery of objects.
  3. A person applying for a permit pursuant to this section shall:
    1. Have knowledge of archaeology, paleontology or history as qualified in subsection (1) of this section;
    2. Provide a detailed statement to the state archaeologist giving the reasons and objectives for excavation or removal and the benefits expected to be obtained from the contemplated work;
    3. Provide data and results of any completed excavation, study, or collection at the first of each calendar year;
    4. Obtain the prior written permission of the owner if the site of the proposed excavation is on privately owned land; and
    5. Carry the permit while exercising the privileges granted.

History. Enact. Acts 1988, ch. 168, § 5, effective July 15, 1988.

433.881. Unlawful sale of speleothems.

It shall be unlawful for any person to sell or offer for sale any speleothems in this Commonwealth, export them for sale outside the Commonwealth, or import speleothems into the Commonwealth for sale.

History. Enact. Acts 1988, ch. 168, § 6, effective July 15, 1988.

433.883. Cave owner or his agent not to be held liable.

  1. Neither the owner of a cave nor his authorized agents acting within the scope of their authority shall be liable for injuries sustained by any person using the cave for recreational or scientific purposes if no charge has been made for the use of the cave, notwithstanding that an inquiry may have been made as to the experience or expertise of the person or persons seeking consent.
  2. Nothing in this section shall be construed to constitute a waiver of the sovereign immunity of the Commonwealth or any of its boards, departments, bureaus or agencies.

History. Enact. Acts 1988, ch. 168, § 7, effective July 15, 1988.

NOTES TO DECISIONS

1.Recreational Use.
2.—Release.

Because deceased, who died while exploring defendants’ cave, was not on equal footing with the defendants, was unaware of the dangers inside the cave and relied entirely on his tour guide and because no public interests are served by encouraging commercial caving by validating such releases and the cave tour did not qualify as a recreational activity, waiver signed by deceased did not release defendants from liability and defendants’ motion for summary judgment was denied. Coughlin v. T.M.H. Int'l Attractions, 895 F. Supp. 159, 1995 U.S. Dist. LEXIS 12499 (W.D. Ky. 1995 ).

433.885. Penalties.

  1. Any violation of KRS 433.873 to 433.877 or 433.879(1) shall be punished as a Class A misdemeanor.
  2. Any violation of KRS 433.879(3) or 433.881 shall be punished as a Class B misdemeanor.

History. Enact. Acts 1988, ch. 168, § 8, effective July 15, 1988.

Purchases of Metal and Objects Containing Metal

433.890. Duties of purchasers of metal and objects containing metal — Exclusions.

  1. Every recycler, dealer in junk or metals, dealer in secondhand articles, vendor of bottles or rags, collector of or dealer in articles found in ashes, garbage, or other refuse, whether such dealers, collectors, or vendors have established places of business or operate a business of an itinerant nature, shall, with regard to any catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and is marketed as returnable, railroad rails, nonferrous metal or an alloy thereof, or an object containing nonferrous metal or an alloy thereof:
    1. Keep a register that contains:
      1. A photocopy of a valid driver’s license or other government-issued identification card or document which contains the name, photograph, and signature of the seller. If the purchaser has a copy of the seller’s valid photo identification on file, it shall not be necessary for the purchaser to make another copy of the identification document for each purchase if the purchaser references the number on the identification document in the register at the time of each purchase; and
      2. The state and license number of the motor vehicle used to transport the purchased catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and is marketed as returnable, railroad rail, nonferrous metal or an alloy thereof, or object containing nonferrous metal or an alloy thereof, to the place of purchase, which shall be provided by the seller of the items;
      3. The time and date of the transaction;
      4. A description in the usage of the trade of the kind and weight of the railroad rail, nonferrous metal or an alloy thereof, or object containing the nonferrous metal or an alloy thereof purchased; and
      5. The amount paid for the material and the unit basis of the purchase, such as by ounce or pound, etc.;
    2. Not purchase any metal that has been smelted, burned, or melted unless, in addition to the other requirements of this subsection, the seller provides the following, and the purchaser maintains a copy thereof:
      1. A signed certificate of ownership stating that he or she is the owner of the metal and is entitled to sell it; or
      2. A signed certificate from the owner of the metal stating that he or she is the owner of the metal, and that the person selling the metal is authorized to sell the metal on behalf of the owner;
    3. Not purchase any catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and is marketed as returnable, railroad rail, nonferrous metal or an alloy thereof, or an object containing nonferrous metal or an alloy thereof from a person who:
      1. Is less than eighteen (18) years of age; or
      2. Is unable or refuses to provide the identification and information required in paragraph (a) of this subsection;
    4. Retain the information required by this section for a period of two (2) years, after which time, the information may be retained, destroyed in a manner that protects the identity of the owner of the property and the seller of the property, or transferred to a law enforcement agency specified in paragraph (g) of this subsection;
    5. If the purchaser ceases business, transfer all records and information required by this section to a law enforcement agency specified in paragraph (g) of this subsection;
    6. Permit any peace officer to inspect the register, and if the peace officer deems it necessary to locate specific stolen property, may inspect the catalytic converter, metal beverage and container that is capable of holding more than two (2) liters of beverage is marketed as returnable, railroad rail, nonferrous metal or an alloy thereof, or object containing nonferrous metal or an alloy thereof received during business hours;
    7. Upon written request of the sheriff or chief of police, as appropriate, make a report containing the information required to be retained in the register under paragraph (a) of this subsection in person, in digital format, in writing, or by electronic means within twenty-four (24) hours of the transaction to:
      1. The sheriff of the county in which the purchase was made and the sheriff of the county in which the business is located; and
      2. When the purchase was made in a city, county, urban-county, charter county, consolidated local government, or unified local government, to the police department of the city, county, urban-county, charter county, consolidated local government, or unified local government in which the purchase is made and the police department of the city, county, urban-county, charter county, consolidated local government, or unified local government in which the business is located, unless there is no police department in that jurisdiction;
    8. Comply with a written request pursuant to paragraph (g) of this subsection until a written notice to cease sending the reports required by paragraph (g) of this subsection is received by the purchaser. A request may relate to:
      1. All records of purchases;
      2. Records of a specific class of metals or items purchased;
      3. Records of purchases during a specific period of time; or
      4. Records of a specific purchase or purchases; and
    9. Retain the property in its original form or a photograph or digital image of the property for a period of three (3) business days from the date of purchase unless notified by a peace officer having reasonable cause to believe that the property may be stolen property, in which case, the property may be seized as evidence by the peace officer or, if not seized, shall be retained for an additional thirty (30) days unless earlier notified by a peace officer that the property may be sold;
  2. A sheriff or police department receiving records pursuant to this section shall retain the records for two (2) years, after which time, it may either retain or destroy the records in a manner that protects the identity of the owner of the property, the seller of the property, and the purchaser of the property.
  3. Any record required to be made or reported pursuant to this section may be kept and reported in hard copy or digital or in electronic format.
  4. This section shall not apply to the purchase, sale, or transfer of:
    1. A motor vehicle, aircraft, or other item that is licensed by the state or federal government pursuant to a legitimate transfer of title or issuance of a junk title;
    2. A firearm, part of a firearm, firearm accessory, ammunition, or ammunition component;
    3. A knife, knife parts, accessory or sheath for a knife, or knifemaking products;
    4. A nonreturnable used beverage container or food container;
    5. Jewelry, household goods containing metal, garden tools, and similar household items, except for a catalytic converter or metal beverage container that is capable of holding more than two (2) liters of liquid and which is marketed as returnable, which takes place at a flea market or yard sale;
    6. A single transaction involving a purchase price of ten dollars ($10) or less, but more than two (2) transactions with the same person involving a purchase price of ten dollars ($10) or less in one (1) seven (7) day period shall be reportable transactions;
    7. Material disposed of as trash or refuse that contains or may contain a catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and is marketed as returnable, railroad rail, nonferrous metals or an alloy thereof, or an object that contains or may contain a railroad rail or nonferrous metals or an alloy thereof, which is collected by a municipal waste department or by a licensed waste hauler and no payment is made to the person from whom the material is collected by the person or agency collecting the material;
    8. A catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and marketed as returnable, railroad rail, nonferrous metal or alloy thereof, or an object containing railroad rail, nonferrous metal, or an alloy thereof from a person who has maintained a record pursuant to this section to a person who is to further recycle the metal or object containing the metal;
    9. A catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and marketed as returnable, railroad rail, nonferrous metal or an alloy thereof, or object containing nonferrous metal or an alloy thereof under a written contract with an organization, corporation, or association registered with the Commonwealth as a charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school sponsored organization;
    10. A purchase, pursuant to a written contract, from a manufacturing, industrial or other commercial vendor that generates catalytic converters, metal beverage containers capable of holding more than two (2) liters of beverage and which are marketed as returnable, railroad rail, nonferrous metal or an alloy thereof, or object containing nonferrous metal in the ordinary course of business;
    11. An item purchased by, pawned to, or sold by a pawnbroker licensed pursuant to KRS Chapter 226, engaging in the business authorized by that chapter; or
    12. Any ferrous metal item, except for a catalytic converter, metal beverage container that is capable of holding more than two (2) liters of beverage and is marked as returnable, or railroad rails.

History. Enact. Acts 2008, ch. 83, § 1, effective July 15, 2008; 2011, ch. 8, § 1, effective June 8, 2011.

433.892. Failure to maintain register of metals and objects containing metal — Penalty.

  1. A person is guilty of failure to maintain a register of metals and objects containing metal when the person fails or refuses to:
    1. Obtain the information required by KRS 433.890 ;
    2. Keep the records required by KRS 433.890 for the period of time required in KRS 433.890;
    3. Provide the required records to the police department or sheriff as required by KRS 433.890;
    4. Provide access to a peace officer to records required to be kept pursuant to KRS 433.890; or
    5. Dispose of the records required to be maintained pursuant to KRS 433.890 in a manner meeting the requirements of KRS 433.890.
  2. A person guilty of failure to maintain a register of metals and objects containing metal shall be fined not more than one hundred dollars ($100) or be imprisoned in the county jail for not more than thirty (30) days, or both.

History. Enact. Acts 2008, ch. 83, § 2, effective July 15, 2008.

433.894. Unlawful acts relating to purchase or disposition of metals — Penalty.

  1. A person is guilty of unlawful acts relating to purchase or disposition of metals when the person violates any provision of KRS 433.890 other than the recordkeeping provisions.
  2. A person guilty of unlawful acts relating to the purchase or disposition of metals shall be fined not more than one hundred dollars ($100) or imprisoned in the county jail for not more than thirty (30) days, or both.

History. Enact. Acts 2008, ch. 83, § 3, effective July 15, 2008.

433.896. Providing fraudulent information for the sale of metals — Penalty.

  1. A person is guilty of providing fraudulent identification for the sale of metals when the person provides to any person required to keep a record of the purchase of metals pursuant to KRS 433.890 :
    1. A false name or other information required to be disclosed;
    2. A false, fraudulent, altered, or counterfeit identification document;
    3. A false, fraudulent, altered, or counterfeit vehicle license plate; or
    4. A false, fraudulent, altered, or counterfeit ownership document.
  2. Providing fraudulent identification for the sale of metals is a Class A misdemeanor.

History. Enact. Acts 2008, ch. 83, § 4, effective July 15, 2008.

Secondary Metals Recyclers

433.900. Definitions for KRS 433.900 to 433.906.

As used in KRS 433.900 to 433.906 , unless the context otherwise requires:

  1. “Applicant” means a secondary metals recycler seeking an application for a certificate of registration with the Department of Professional Licensing of the Public Protection Cabinet, as provided in KRS 433.902 . If the secondary metals recycler is owned by a corporation, limited liability company, partnership, limited partnership, incorporated association, or any other entity organized for the purpose of engaging in business as a secondary metals recycler, “applicant” means the officers of these entities;
  2. “Ferrous metals” means any metal containing significant quantities of iron or steel;
  3. “Nonferrous metals” means metal not containing significant quantities of iron, including but not limited to copper, brass, aluminum, bronze, lead, zinc, nickel, and alloys thereof;
  4. “Name-based background check” means a statewide search of the centralized criminal history record information system by the Department of Kentucky State Police, utilizing the name, date of birth, and Social Security number of the applicant;
  5. “Restricted metals” means any of the following metal items:
    1. Manhole covers;
    2. Electric light poles or other utility poles;
    3. Guardrails;
    4. Street signs, traffic signs, or traffic signals;
    5. Whole road tiles;
    6. Funeral markers or funeral vases;
    7. Railroad equipment, including but not limited to a tie plate, signal house, control box, switch plate, e-clip, or rail tie junction;
    8. Condensing or evaporating coils made from copper, aluminum, or aluminum-copper, including the tubing or rods from a heating or air conditioning unit that is not from a window air conditioning unit or automobile air conditioning unit;
    9. Stainless steel beer kegs;
    10. A catalytic converter or any nonferrous part of a catalytic converter unless purchased as part of a vehicle; or
    11. Storm drain covers; and
    1. “Secondary metals recycler” means: (6) (a) “Secondary metals recycler” means:
      1. Any person who is engaged in the business of gathering or obtaining ferrous or nonferrous metals that have served their original economic purpose or is in the business of performing the manufacturing process by which ferrous metals or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential monetary value;
      2. Any person who has facilities for performing the manufacturing process by which ferrous metals or nonferrous metals are converted into raw material products consisting of prepared grades and having an existing or potential monetary value, other than by the exclusive use of hand tools, by methods including but not limited to processing, sorting, cutting, classifying, cleaning, baling, wrapping, shredding, shearing, or changing the physical form or chemical content thereof; or
      3. Any recycler, dealer in junk or metals, dealer in secondhand articles, vendor of bottles or rags, or collector of or dealer in articles found in ashes, garbage, or other refuse, whether a dealer, collector, or vendor operates an established place of business or an itinerant business.
    2. “Secondary metals recycler” shall not include a municipal solid waste department or any entity which has been issued a municipal solid waste transporter license by the Kentucky Transportation Cabinet and which gathers or obtains ferrous or nonferrous metals in a vehicle registered in Kentucky to transport solid waste.

History. Enact. Acts 2012, ch. 91, § 1, effective July 12, 2012; 2013, ch. 106, § 12, effective June 25, 2013; 2017 ch. 178, § 35, effective April 11, 2017.

433.902. Secondary metals recycler to obtain certificate of registration from Department of Professional Licensing — Application — Name-based background check — Fees — Annual renewal — Display of certificate — Administrative regulations.

    1. Each secondary metals recycler shall submit to a name-based background check as provided in subsection (2) of this section and obtain a certificate of registration from the Department of Professional Licensing of the Public Protection Cabinet within sixty (60) days of the effective date of administrative regulations promulgated pursuant to this section. (1) (a) Each secondary metals recycler shall submit to a name-based background check as provided in subsection (2) of this section and obtain a certificate of registration from the Department of Professional Licensing of the Public Protection Cabinet within sixty (60) days of the effective date of administrative regulations promulgated pursuant to this section.
    2. The application for certificate of registration shall be in a form and format determined by the Department of Professional Licensing of the Public Protection Cabinet and shall contain at a minimum the following:
      1. The name of the secondary metals recycling business;
      2. The name or names of each applicant;
      3. The address of each secondary metals recycling business owned by the applicant; and
      4. Contact information for the purposes of KRS 433.906 .
    3. Any person listed on an application for a certificate of registration shall be at least eighteen (18) years of age prior to the date that the application is submitted.
    4. Any corporation, limited liability company, partnership, limited partnership, incorporated association, or any other entity engaged in business as, or organized for the purpose of engaging in business as, a secondary metals recycler submitting an application shall be organized and qualified to do business in the Commonwealth.
    5. The Department of Professional Licensing of the Public Protection Cabinet shall charge each applicant a reasonable fee established by administrative regulation equal to the actual administrative costs of processing an application for a certificate of registration.
    6. If an applicant is the owner of more than one (1) secondary metals recycling location, the Department of Professional Licensing of the Public Protection Cabinet shall charge a fee for each location that is no greater than the actual administrative costs of processing the application for certificate of registration. Upon approval of the application, the Department of Professional Licensing of the Public Protection Cabinet shall issue a certificate of registration for each location.
    7. Each applicant that receives a certificate of registration from the Department of Professional Licensing of the Public Protection Cabinet as provided in this section shall be required to pay an annual renewal fee equal to the actual administrative costs of processing the renewal of the certificate for registration.
    8. The list of secondary metals recyclers registered with the Department of Professional Licensing of the Public Protection Cabinet as provided in this section shall be public information and available upon written request to the Department of Professional Licensing of the Public Protection Cabinet.
    1. Prior to approval of the application, the Department of Professional Licensing of the Public Protection Cabinet shall require a name-based background check on each applicant. (2) (a) Prior to approval of the application, the Department of Professional Licensing of the Public Protection Cabinet shall require a name-based background check on each applicant.
    2. Each applicant shall provide written authorization to the Department of Kentucky State Police to perform a name-based background check and release the results to the Department of Professional Licensing of the Public Protection Cabinet.
    3. Any request for a name-based background check shall be on a form or through a process approved by the Department of Kentucky State Police, which may charge a fee to be paid by the applicant in an amount no greater than the actual cost of processing the request.
    4. The Department of Professional Licensing of the Public Protection Cabinet shall not issue a certificate of registration to an applicant if the name-based background check results reveal that the applicant has been convicted of, or entered a plea of guilty, an Alford plea, or a plea of nolo contendere to, a felony involving theft, larceny, dealing in stolen property, receiving stolen property, burglary, embezzlement, or obtaining property by false pretenses, any felony drug offense, or knowingly and intentionally violating the laws of the Commonwealth relating to registration as a secondary metals recycler.
  1. A secondary metals recycler’s certificate of registration shall be conspicuously displayed at the location of the secondary metals recycler listed on the application for certificate of registration or at each location if the secondary metals recycler owns more than one (1) business location.
  2. The Department of Professional Licensing of the Public Protection Cabinet shall promulgate administrative regulations in accordance with KRS Chapter 13A to implement the provisions of this section.
  3. The Department of Professional Licensing of the Public Protection Cabinet shall not be responsible for any disciplinary action against any secondary metals recycler seeking an application for certificate of registration.

History. Enact. Acts 2012, ch. 91, § 2, effective July 12, 2012; 2013, ch. 106, § 13, effective June 25, 2013; 2017 ch. 178, § 36, effective April 11, 2017.

433.904. Requirements for purchase of restricted metals by secondary metals recycler — Cash transactions prohibited — Payment to be made by check — Daily reports to sheriff and police — Confidentiality of information — Proof of ownership of restricted metals — Applicability.

    1. A secondary metals recycler shall not enter into any cash transaction for the purchase of any restricted metals as defined in KRS 433.900 . (1) (a) A secondary metals recycler shall not enter into any cash transaction for the purchase of any restricted metals as defined in KRS 433.900 .
    2. Payment by a secondary metals recycler for the purchase of restricted metals shall be made by check issued to the seller and payable to the seller.
    3. Each check for payment shall be mailed by the secondary metals recycler directly to the street address of the seller. Payment shall not be mailed to a post office box.
    4. Each check shall be mailed by the secondary metals recycler to the seller no sooner than one (1) day after the purchase transaction.
  1. At the close of each business day, a secondary metals recycler shall make a report describing any purchases of restricted metals as defined in KRS 433.900 , in digital format, in writing, or by other electronic means to:
    1. The sheriff of the county in which the purchase transaction was made by a secondary metals recycler and the sheriff of the county where the secondary metals recycler is located; and
    2. The police department of the city, county, charter county government, urban-county government, consolidated local government, or unified local government in which the purchase transaction was made and the police department of the city, county, charter county government, urban-county government, consolidated local government, or unified local government in which the secondary metals recycler is located. The information required by this subsection shall remain confidential, and this information shall include the following disclosure: “This information is for the designated recipient only and may contain privileged, proprietary, or otherwise private information. If you are not the intended recipient of this information, you are hereby notified that any use, distribution, copying, or disclosure of this communication is strictly prohibited. If you have received this information in error, please notify the sender and purge the communication immediately.”
  2. A secondary metals recycler shall not purchase any restricted metals without obtaining reasonable proof that the seller owns the property, such as a receipt or bill of sale, or reasonable proof that the seller is an employee, agent, or contractor of a governmental entity, utility company, cemetery, railroad, manufacturer, or other person, business, or entity owning the property and that the seller is authorized to sell the item of restricted metal. A secondary metals recycler may retain on file an official document on the letterhead of the person, business, or entity indicating that the seller is authorized to sell the restricted metal item. Such a letter must be dated within three hundred sixty-five (365) days of the transaction.
  3. The requirements for the purchase of restricted metals according to the provisions of subsections (1) and (2) of this section shall also apply to the purchase of copper wire or coaxial cable belonging to a utility or cable provider, such as communication, transmission, distribution, or service wire, by a secondary metals recycler.
  4. The provisions of subsections (1) and (3) of this section shall not apply to nonreturnable used beverage containers.
  5. The provisions of this section shall not apply to the following:
    1. The purchase of restricted metals from a secondary metals recycler;
    2. The purchase of restricted metals from an organization, corporation, or association registered with the Commonwealth as a charitable, philanthropic, religious, fraternal, civic, patriotic, social, or school-sponsored organization;
    3. The purchase of restricted metals pursuant to a written contract, from a manufacturing, industrial, or other commercial vendor that generates restricted metals in the ordinary course of business; or
    4. A motor vehicle, aircraft, or other item that is licensed by the state or federal government pursuant to a legitimate transfer of title or issuance of a junk title.

History. Enact. Acts 2012, ch. 91, § 3, effective July 12, 2012.

Legislative Research Commission Notes.

(7/12/2012). Under the authority of KRS 7.136(1), the Reviser of Statutes has altered the format of the text in subsection (2) of this statute during codification in order to correct a manifest clerical or typographical error. The words in the text were not changed.

433.906. Secondary metals recycler to maintain equipment to receive notifications of stolen restricted metals, ferrous metals, and nonferrous metals — Change in contact information to be reported to Office of Occupations and Professions.

  1. A secondary metals recycler shall maintain at its place of business, or otherwise have immediate access to, an e-mail address, facsimile, or other equipment of similar function on which notifications of stolen restricted metals, ferrous metals, and nonferrous metals may be expeditiously received from law enforcement officials or electronic metal theft notification systems.
  2. The equipment shall be operable at all times during the secondary metal recycler’s customary business hours. The secondary metals recycler shall notify the Department of Professional Licensing of the Public Protection Cabinet within two (2) days of any change to the contact information used for the purposes of this section.

History. Enact. Acts 2012, ch. 91, § 4, effective July 12, 2012; 2017 ch. 178, § 37, effective April 11, 2017.

CHAPTER 434 Offenses Against Property by Fraud

434.010. Embezzlement by officer, agent or employe of corporation. [Repealed.]

Compiler’s Notes.

This section (1202) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

434.020. Misapplication of money, bonds, notes and other property of state or political subdivision by custodian. [Repealed.]

Compiler’s Notes.

This section (359a-6, 1205, 1206, 2747) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 514.070 , 517.110 .

434.030. Embezzlement of property entrusted to person for delivery. [Repealed.]

Compiler’s Notes.

This section (1203) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 514.070 .

434.040. Conversion of motor vehicle. [Repealed.]

Compiler’s Notes.

This section (1376r-7) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 514.050 .

434.050. Obtaining money, property or signature by false pretenses. [Repealed.]

Compiler’s Notes.

This section (1208) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 .

434.060. Obtaining money by false personation — Personating another in legal acts — Fraudulently displaying badge of organization. [Repealed.]

Compiler’s Notes.

This section (1209, 1211, 1376a: Acts 1954, ch. 108, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 .

434.070. Making or delivering check, draft or order not backed by sufficient funds — Presumption of fraud. [Repealed.]

Compiler’s Notes.

This section (1213a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 .

434.080. Obtaining money by pretending to be an officer. [Repealed.]

Compiler’s Notes.

This section (1212) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 , 519.050 .

434.090. Misrepresentations as to financial condition. [Repealed.]

Compiler’s Notes.

This section (1213b-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law see KRS 514.040 , 517.090 .

434.095. Obtaining real estate loan by substituting or making false instrument — Subsequent offenses.

Any person who, with intent to defraud, either substitutes one (1) instrument in writing for another and by this means causes the making of a loan or the extension of credit, or induces by any fraudulent instrument in writing the making of a loan or the extension of credit as a part of a transaction by which either the title to real property is transferred or valuable improvements are placed on real property in this state, whether for the benefit of himself or another, is guilty of a Class D felony.

History. Enact. Acts 1966, ch. 74, § 1; 1992, ch. 463, § 47, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

False financial statement, issuing, KRS 517.090 .

Theft by deception, KRS 514.040 .

434.100. Passing or possessing notes of nonexistent or broken bank. [Repealed.]

Compiler’s Notes.

This section (1191) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law see KRS 514.040 , 516.060 .

434.110. Alteration or destruction of writings of company by officer employe. [Repealed.]

Compiler’s Notes.

This section (1186) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.050 .

434.120. Giving false pedigree of stock to purchaser. [Repealed.]

Compiler’s Notes.

This section (1325) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 , 516.070 .

434.130. Forgery or counterfeiting of writings. [Repealed.]

Compiler’s Notes.

This section (1185, 1188, 1189) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.020 , 516.030 .

434.140. Forging or counterfeiting warrants or receipts of officials or state bonds. [Repealed.]

Compiler’s Notes.

This section (1182) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.030 .

434.150. Effect of conviction for forgery on forged instrument.

Judgment of conviction for forgery shall not destroy the legal validity of the writing charged to have been forged, nor shall the conviction be used as evidence in any civil controversy relative to the writing.

History. 1131.

434.155. Filing illegal lien.

  1. A person is guilty of filing an illegal lien when he files a document or lien that he knows or should have known was forged, groundless, contained a material misstatement, or was a false claim. It shall be an affirmative defense that any material misstatement was not intentional.
  2. Filing an illegal lien is a Class D felony for the first offense, a Class C felony for any second offense, and a Class B felony for any subsequent offense.

History. Enact. Acts 1998, ch. 606, § 54, effective July 15, 1998.

NOTES TO DECISIONS

1.Legal Ethics.

Attorney was suspended from the practice of law for three years after violations of SCR 3.130-8.1(b), former SCR 3.130-4.4(a), and former SCR 3.130-8.3(b) were found; the attorney filed an illegal lien for an improper purpose and failed to respond to bar complaints and requests for information, and it did not matter that the attorney was not prosecuted for violating KRS 434.155 . The recommended sanction was appropriate in light of the attorney’s extensive history of prior discipline for serious ethical violations and the seriousness of the charges. Ky. Bar Ass'n v. Glidewell, 348 S.W.3d 759, 2011 Ky. LEXIS 118 ( Ky. 2011 ).

2.Attorney’s Lien.

Trial court did not err in awarding an attorney summary judgment in a trust’s action alleging she filed an illegal attorney’s lien because no evidence supported the claim; the lien was not forged, did not contain any false statements, and was not a false claim for money not due the attorney; the attorney had an order from the district court appointing her specifying her hourly rate and that she was be to be paid from the trust’s assets, and she removed the lien after the trust filed suit. Ford v. Faller, 439 S.W.3d 173, 2014 Ky. App. LEXIS 114 (Ky. Ct. App. 2014).

General Assembly’s purpose in adopting the illegal lien statute was to protect individuals from liens that are forged, false, or fraudulent, and in the case of an attorney’s lien, the illegal lien statute would be violated where an attorney filed a lien related to a matter for which she never worked, misrepresented the nature of fee she was due, or the like; the statute was not designed to criminalize a mistaken legal interpretation. Ford v. Faller, 439 S.W.3d 173, 2014 Ky. App. LEXIS 114 (Ky. Ct. App. 2014).

Even if an attorney’s lien was improper, it was not groundless because the attorney had a reasonable argument that the law had to be interpreted, applied, modified, and/or extended to allow her to file her lien; the definition of groundless, i.e., lacking any factual or legal basis or rationale, is appropriate and in accord with the General Assembly’s intent and purpose. Ford v. Faller, 439 S.W.3d 173, 2014 Ky. App. LEXIS 114 (Ky. Ct. App. 2014).

3.Statute of Limitations.

One-year statute of limitations could apply, but additional discovery had to be performed because it had to be determined determine if a mechanic’s lien was filed maliciously, thereby not falling under the one-year statute of limitations. RLB Props., Ltd. v. Seiller Waterman, LLC, 2018 Ky. App. LEXIS 179 (Ky. Ct. App. June 1, 2018), rev'd in part, aff'd, 610 S.W.3d 188, 2020 Ky. LEXIS 218 ( Ky. 2020 ).

434.160. Counterfeiting seal of corporation. [Repealed.]

Compiler’s Notes.

This section (1187) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.030 , 516.060 , 516.090 .

434.170. Counterfeiting coin and passing and possessing it. [Repealed.]

Compiler’s Notes.

This section (1181, 1190) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.020 , 516.050 .

434.180. Counterfeiting currency and passing and possessing it. [Repealed.]

Compiler’s Notes.

This section (1190, 1193) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.020 , 516.050 .

434.190. Making or possessing devices used for counterfeiting. [Repealed.]

Compiler’s Notes.

This section (1192) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.090 , 516.100 .

434.200. Fraudulent severance of timber, buildings, minerals and fixtures from land under mortgage or vendor’s lien. [Repealed.]

Compiler’s Notes.

This section (1358-1, 1358-2, 1358-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.060 .

434.210. Fraudulent concealment or removal of mortgaged personal property. [Repealed.]

Compiler’s Notes.

This section (1358: Acts 1942, ch. 192, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.060 .

434.220. Disposal or conversion of property without consent of owner. [Repealed.]

Compiler’s Notes.

This section (1358a, 1358b) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.060 .

434.225. Removal, transfer, or abandonment of rented or leased personal property — Attempt to defraud lessor.

  1. As used in this section the following words shall have the following meanings:
    1. “Person” means an individual, partnership, association or corporation;
    2. “Address” means the place at which the rented or leased personal property is located;
    3. “Personal property” means household furnishings and appliances.
  2. A person who rents or leases personal property under an agreement to relinquish possession of such property to the lessor at the expiration of the lease or rental period, shall not, prior to the expiration of such period, remove the personal property to any other address and relinquish custody of such property without first giving the lessor at least ten (10) days’ written notice, delivered in person or by certified mail with a return receipt requested.
  3. Removing the personal property, or any part thereof, to a new or different location and relinquishing custody of such property, or permitting another person, not a party to the lease agreement, to take possession of the personal property, or any part thereof, or moving from the address and abandoning the personal property shall constitute prima facie evidence of the lessee’s intention to defraud the lessor.
  4. Any lease under subsection (2) of this section shall recite verbatim subsections (1), (2), (3), and (4) of this section.
  5. Failure of lessor to comply with subsection (4) of this section shall void lessor’s relief herein.
  6. Any person described in subsection (2) of this section who attempts to defraud a lessor of leased personal property shall be fined not less than fifty dollars ($50) nor more than two hundred dollars ($200), or imprisoned for thirty (30) days, or both.

History. Enact. Acts 1974, ch. 160, § 1.

Research References and Practice Aids

Cross-References.

Theft and related offenses, KRS 514.030 , 514.040 , 514.070 .

434.230. Presentation of fraudulent claims against state to court. [Repealed.]

Compiler’s Notes.

This section (1225) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

434.240. Falsification of claim against state or political subdivision. [Repealed.]

Compiler’s Notes.

This section (1207) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

434.250. Payment of salary for services not rendered. [Repealed.]

Compiler’s Notes.

This section (359a-7, 359a-8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

434.260. False entries to defraud by officers, deputies and assistants of first-class city. [Repealed.]

Compiler’s Notes.

This section (2747) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.050 , 522.020 .

434.270. False and deceptive advertising. [Repealed.]

Compiler’s Notes.

This section (1376g-1, 1376g-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.030 , 517.040 .

434.275. False representation of kosher meats and kosher meat preparations — Advertising — Sale of. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 130, §§ 1 to 3) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 367.850 , 367.990 .

434.280. Destruction or concealment of will. [Repealed.]

Compiler’s Notes.

This section (1226) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 524.100 .

434.290. Defrauding hotel keeper. [Repealed.]

Compiler’s Notes.

This section (2179a-6, 2179a-7, 2179a-8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.300. Obtaining insurance or insurance benefit by fraud. [Repealed.]

Compiler’s Notes.

This section (673, 681c-31) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 , 523.040 .

434.310. Spreading false rumors regarding solvency of financial institutions.

Any person who willfully and maliciously makes, circulates or transmits to others any false statement, rumor or suggestion, written, printed or by word of mouth, which is directly or by inference derogatory to the financial condition or affects the solvency of any bank or trust company doing business in the state, any foreign or domestic insurance company or any savings and loan association doing business in this state, or who counsels, aids, procures, or induces another to start, transmit or circulate any such statement or rumor shall be fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000), or imprisoned for not less than twenty (20) nor more than one hundred (100) days, or both.

History. 598a, 869b: amend. Acts 1968, ch. 152, § 164.

434.320. Insolvent broker to accept no money or securities for margin from customer ignorant of broker’s insolvency.

  1. Any broker who, knowing that he is insolvent, accepts or receives or consents to receiving from a customer ignorant of the broker’s insolvency, deposits of money, stocks, bonds, securities, or other things of value belonging to the customer, to be used as margin for the purchase of stocks, bonds, grain, produce or cotton, otherwise than in payment of or security for an existing indebtedness, and who thereby causes the customer to lose, in whole or in part, such money, stocks, bonds, securities, or other things of value, shall be guilty of a Class D felony.
  2. “Broker,” as used in KRS 434.320 , 434.330 , and 434.340 , means any person engaged in the business of buying or selling stocks, bonds, grain, produce, or cotton, as agent or representative of other persons upon margins, and who charges commissions for his services.

History. 1376kk-1, 1376kk-3: amend. Acts 1992, ch. 463, § 48, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

Fraud in insolvency, KRS 517.080 .

Insolvent bank not to receive deposits, Const., § 204.

Receiving deposits in failing financial institution, KRS 517.100 .

434.330. Broker not to pledge or dispose of customer’s securities without customer’s consent.

Any broker who has in his possession any money, stocks, bonds, securities, or other things of value belonging to a customer, without having any lien on them or any special property in them, and pledges them or disposes of them without the customer’s consent, shall be guilty of a Class D felony.

History. 1376kk-2: amend. Acts 1992, ch. 463, § 49, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

Misapplication of entrusted property, KRS 517.110 .

Theft by failure to make required disposition of property, KRS 514.070 .

434.340. Liability of officer, manager, agent, or employee of broker.

Every member of a firm of brokers and every officer, manager, agent, or employee of a broker, who knowingly does consent to the doing of any act prohibited by KRS 434.320 or 434.330 shall be guilty of a Class D felony.

History. 1376kk-4: amend. Acts 1992, ch. 463, § 50, effective July 14, 1992.

434.350. Depriving owner or possessor of motor vehicle through fraud. [Repealed.]

Compiler’s Notes.

This section (1376r-4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.100 .

434.360. Hiring motor vehicle with intent to defraud. [Repealed.]

Compiler’s Notes.

This section (1376r-5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.370. Abandonment or failure to return rented motor vehicle. [Repealed.]

Compiler’s Notes.

This section (1376r-6) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 514.070 .

434.380. Person hiring motor vehicle permitting another to drive in violation of rental agreement. [Repealed.]

Compiler’s Notes.

This section (1376r-8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.100 .

434.390. Fraudulent renting of motor vehicle with deceptive hubdometer or charging hirer on basis of deceptive hubdometer readings. [Repealed.]

Compiler’s Notes.

This section (1376r-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.040 , 517.020 .

434.400. Fraudulent tampering with hubdometer by hirer of motor vehicle. [Repealed.]

Compiler’s Notes.

This section (1376r-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.410. Fraudulent changing of speedometer to effect sale of motor vehicle. [Repealed.]

Compiler’s Notes.

This section (1376r-9a) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 367.990(18).

434.415. Installation of any component of inflatable restraint system not designed in accordance with federal safety regulations — Penalties.

Any person who knowingly installs or reinstalls in a vehicle any object, in lieu of an air bag that was designed in accordance with federal safety regulations for the make, model, and year of the vehicle, as part of a vehicle inflatable restraint system, shall be fined not more than five thousand dollars ($5,000), or be confined in the county jail for not more than twelve (12) months, or both.

History. Enact. Acts 2003, ch. 189, § 4, effective June 24, 2003.

434.420. Defrauding of person hiring out animals and animal-drawn vehicles — Prosecution — Register to be kept. [Repealed.]

Compiler’s Notes.

This section (2572d-1, 2572d-2, 2572d-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.430. Giving street car transfers to persons not entitled to them. [Repealed.]

Compiler’s Notes.

This section (1376d-1, 1376d-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.440. Transmission of false or fraudulent communications over telegraph or telephone lines — Delay of messages. [Repealed.]

Compiler’s Notes.

This section (1346) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 438.220 .

434.441. Definitions for KRS 434.441 and 434.442.

As used in this section and KRS 434.442 , unless the context otherwise requires:

  1. “Educational institutions” means those schools providing postsecondary education including technical, community and junior colleges, and colleges and universities;
  2. “Governmental agency” means any agency of the state or local government; and
  3. “Secondary school” means a school with grades nine (9) through twelve (12).

History. Enact. Acts 1996, ch. 170, § 1, effective July 15, 1996.

434.442. Fraudulent use of an educational record — Penalty.

  1. A person is guilty of fraudulent use of an educational record when that person, knowingly:
    1. Falsely makes, completes, alters, or procures to be falsely made or altered, or assists in falsely making or altering, a diploma, certificate, license, or transcript indicating academic achievement in an educational program issued by a secondary school, a postsecondary educational institution, or a governmental agency;
    2. Sells, gives, buys, or obtains, or procures to be sold, given, bought or obtained, or assists in selling, giving, buying, or obtaining, a diploma, certificate, license, or transcript which he knows is false, indicating educational achievement in an educational program issued by a secondary school, postsecondary educational institution, or a governmental agency;
    3. Presents or uses as genuine a falsely made or altered diploma, certificate, license, or transcript indicating educational achievement in an educational program in a secondary school, postsecondary educational institution, or a governmental agency; or
    4. Makes a false written representation of fact that he has received a degree or other certification indicating merit, educational achievement, or completion of an educational program involving study, experience, or testing from a secondary school, a postsecondary educational institution, or governmental agency in an application for:
      1. Employment;
      2. Admission to an educational program;
      3. An award; or
      4. The purpose of inducing another to issue a diploma, certificate, license, or transcript indicating educational achievement in an educational program of a secondary school, postsecondary educational institution, or a governmental agency.
  2. Fraudulent use of an educational record is a Class A misdemeanor.

History. Enact. Acts 1996, ch. 170, § 2, effective July 15, 1996.

434.444. Misrepresenting current or former military status — Exemptions — Penalties — Transfer of fines revenue — Short title.

  1. A person is guilty of misrepresenting current or former military status when he or she, for the purpose of direct or indirect monetary gain, and with intent to defraud, obtain employment, or be elected or appointed to public office, intentionally makes:
    1. A claim, orally, in writing, or by any fraudulent display, that he or she is entitled to wear military awards, military decorations, or military rank;
    2. A claim that he or she served in the United States Armed Forces, a Reserve Component thereof, or the National Guard; or
    3. A claim that he or she served in the military during a wartime era, whether or not there was a declared war, or served in a combat zone, or makes any misrepresentation of actual military service.
  2. This section shall not apply to a person who or an organization which:
    1. Is reenacting military history or a military event;
    2. Is playing the part of a member of the Armed Forces of the United States, a Reserve Component thereof, or the National Guard in a play, motion picture television production, or other dramatic production, or at a patriotic or civic event;
    3. Is a member of the Armed Forces of the United States, a Reserve Component thereof, or the National Guard and, as part of a military assignment, is representing a member of the Armed Forces in a previous war or time period for ceremonial, recruiting, or training purposes;
    4. Is an employee of or volunteer for a museum and, as a part of their duties, is representing a member of the Armed Forces of the United States, a Reserve Component thereof, or the National Guard for ceremonial, historical, or training purposes;
    5. Owns, displays, purchases, sells, or trades militaria, including but not limited to medals, ribbons, and rank insignia, and does not claim to have personally earned them unless he or she is legally entitled to do so;
    6. Is a natural person using his or her given name that includes a military rank, so long as he or she does not use the name to defraud another in a manner prohibited by this section;
    7. Uses a name or honorary military or military-like rank which has been bestowed upon him or her by a public officer, public employee, or public agency, in the name of a public officer or public agency;
    8. Uses a corporate, partnership, sole proprietorship, or other name for a business or product which includes a military rank, so long as the name is not used to defraud another in a manner prohibited by this section; or
    9. Holds a registered trademark which includes a military rank or honorary rank, so long as the trademark is not used to defraud another in a manner prohibited by this section.
  3. Misrepresenting current or former military status is:
    1. A violation of KRS 514.040 if the defendant, by the misrepresentation, obtains money or property; and
    2. If the defendant, by the misrepresentation, obtains a public benefit, a violation of the applicable statute that prohibits obtaining that public benefit and provides a specific penalty.
  4. If a violation of subsection (3) of this section is not involved, the defendant shall be fined an amount not to exceed five thousand dollars ($5,000) or be imprisoned in the county jail for not more than twelve (12) months, or both.
  5. KRS 431.100 to the contrary notwithstanding, any fine assessed as a penalty for conviction under this section shall be transferred by the circuit clerk and deposited with the veterans program trust fund established by KRS 40.460(2)(b).
  6. This section shall be cited as the Kentucky Stolen Valor Act.

History. Enact. Acts 2008, ch. 15, § 1, effective July 15, 2008; 2013, ch. 115, § 1, effective June 25, 2013.

Legislative Research Commission Notes.

(7/15/2008). In 2008 Ky. Acts ch 15, sec. 1, under the authority of KRS 7.136(1)(a) and (c), during codification renumbering and rearranging of parts of a section have occurred.

434.445. Unauthorized reproduction and distribution of recorded article or device for sale or rent — Exemption — Confiscation and destruction — Penalties.

  1. Any person who knowingly transfers or causes to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with the intent to sell or cause to be sold for profit or used to promote the sale of any product, such article on which sounds are so transferred without the consent of the owner, shall be guilty of a Class D felony. Each individual manufacture of such recorded article shall constitute a separate offense. “Owner,” for purposes of this section, means the person who owns the original fixation of sounds embodied in the master phonograph record, master disc, master tape, master film, or other device used for reproducing sounds on phonograph records, discs, tapes, films, or other articles upon which sound is recorded and from which the transferred recorded sounds are directly derived.
  2. Any person who knowingly transfers or causes to be transferred to any phonograph record, disc, wire, tape, film, or other article, any performance, whether live before an audience or transmitted by wire or through the air by radio or television, with the intent to sell or cause to be sold for profit or used to promote the sale of any product, such article onto which such performance is or distributes, causes the distribution of, or possesses for one (1) or more of these purposes, to be transferred without the consent of the performer, shall be fined not less than five hundred dollars ($500) nor more than three thousand dollars ($3,000) or confined in the penitentiary for not less than one (1) year nor more than five (5) years, or both. Each individual transfer or manufacture of such recorded article shall constitute a separate offense. For purposes of this section, a person who is authorized to maintain custody and control over business records that reflect whether or not the owner of the live performance consented to having the live performance recorded or fixed is a proper witness in a proceeding regarding the issue of consent.
  3. Any person who knowingly, or with reasonable grounds to know, advertises or offers for sale or resale, or sells or resells, or as a renter, rents or causes the rental of, or distributes or possesses for such purposes any sound recording manufactured without the consent of the owner, as defined in subsection (1) of this section, or any sound recording manufactured without the consent of the performer shall, be guilty of a Class D felony. Possession of five (5) or more duplicate copies or twenty (20) or more individual copies of such recorded articles, produced without the consent of the owner, shall create a rebuttable presumption that such devices are intended for sale or distribution in violation of this section. Each sale or resale of any such article shall constitute a separate offense.
  4. Any person who knowingly sells or distributes, offers to sell or distribute, possesses for the purpose of sale or distribution any phonograph record, disc, wire, tape, film, or other article now known or later developed on which sounds, images, or both sounds and images have been transferred unless such phonograph record, disc, wire, tape, film, or other article bears the true name and address of the transferor of the sounds and the name of the actual performer or group in a prominent place on its packaging shall be guilty of a Class D felony. Each sale or distribution of any such article shall constitute a separate offense.
  5. This section does not apply to any person who transfers or causes to be transferred any such sounds or images intended for or in connection with radio or television broadcast or cable transmission or related uses, or for archival purposes, or solely for the personal use of the person transferring or causing the transfer and without any compensation being derived by the person from the transfer.
  6. It shall be the duty of all peace officers within the Commonwealth of Kentucky and the Department of Kentucky State Police upon discovery to confiscate the recorded devices produced in violation of this section. Any recorded device produced in violation of this section, which has come into the custody of a peace officer, shall be forfeited and destroyed by the court having jurisdiction. A record of the place where said recorded devices were seized, the kinds and quantities of recorded devices so destroyed, and of the time, place, and manner of the destruction, shall be kept.

History. Enact. Acts 1974, ch. 120, § 1; 1978, ch. 321, § 2, effective June 17, 1978; 1992, ch. 108, § 1, effective July 14, 1992; 2007, ch. 85, § 317, effective June 26, 2007.

Research References and Practice Aids

Cross-References.

Criminal simulation, KRS 516.110 .

434.450. Evasion of inspection by master of vessel carrying tobacco or flour. [Repealed.]

Compiler’s Notes.

This section (1204) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

434.460. Sale of impure lead and linseed oil as pure lead and linseed oil. [Repealed.]

Compiler’s Notes.

This section (1373) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 517.020 .

434.470. Fraudulent manufacture, sale, gift or use of tokens and slugs. [Repealed.]

Compiler’s Notes.

This section (1376s-2, 1376s-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 516.120 , 516.130 .

434.480. Prevention of exercise of calling or free import and export, and requiring additional licenses, under pretense of authority. [Repealed.]

Compiler’s Notes.

This section (1213) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.050 .

434.490. Defrauding vendor of newspapers. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 171, § 1; 1946, ch. 22, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 .

434.500. Defrauding taxicab operator. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 29, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 .

434.510. Obtaining communications service by fraud. [Repealed.]

Compiler’s Notes.

This section (Acts 1960, ch. 159, §§ 1 to 4; 1966, ch. 150; 1970, ch. 83, § 21) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1974. For present law, see KRS 514.060 .

Credit or Debit Card Crimes

434.550. Citation of KRS 434.550 to 434.730.

KRS 434.550 to 434.730 may be cited as the Credit and Debit Card Crime Act.

History. Enact. Acts 1970, ch. 83, § 1; 1978, ch. 67, § 1, effective June 17, 1978.

434.560. Definitions for KRS 434.550 to 434.730.

As used in KRS 434.550 to 434.730 , unless the context otherwise requires:

  1. “Automated banking device” means any machine which when properly activated by a credit card, debit card or personal identification code will perform any of the following services:
    1. Dispense money as a debit to the cardholder’s savings or checking account; or
    2. Print the cardholder’s savings or checking account balances on a statement; or
    3. Transfer funds between a cardholder’s savings and checking account; or
    4. Accept payments on a cardholder’s loan; or
    5. Dispense cash advances on an open end credit or a revolving charge agreement; or
    6. Accept deposits to a customer’s savings or checking account; or
    7. Receive inquiries of verification of checks and dispense information which verifies that funds are available to cover said checks; or
    8. Cause money to be transferred electronically from a cardholder’s account to an account held by any business, firm, retail merchant, corporation, or any other organization;
  2. “Cardholder” means the person or organization named on the face of a credit or debit card to whom or for whose benefit the credit or debit card is issued by an issuer;
  3. “Credit card” means any instrument or device, whether known as a credit card, credit plate, credit number or by any other name, issued by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value on credit;
  4. “Debit card” means any instrument or device, known by any name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services and anything else of value, payment of which is made against funds previously deposited by cardholder;
  5. “E.F.T. system” means an electronic funds transfer system whereby funds are transferred electronically from a cardholder’s account to any other account;
  6. “Expired credit card” means a credit card which is no longer valid because the term shown on it has expired;
  7. “Expired debit card” means a debit card which is no longer valid because the term shown on it has expired;
  8. “Issuer” means the business organization or financial institution which issues a credit or debit card or its duly authorized agent;
  9. “Merchant” means an owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or operator. “Merchant” also means a person who receives from an authorized user of a payment card, or someone the person believes to be an authorized user, a payment card or information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from the person;
  10. “Participating party” means a business organization or financial institution, or any duly authorized agent of such business organization or financial institution, which is obligated by contract to acquire from a person, business organization or financial institution providing money, goods, services or anything else of value, a sales slip, sales draft or other instrument evidencing a credit or debit card transaction and from whom the issuer is obligated by contract to acquire or participate in such sales slip, sales draft or other instrument;
  11. “Payment card” means a credit card, charge card, debit card, or any other card that is issued to an authorized card user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant;
  12. “Presentation or presents” as used herein shall be construed to define those actions taken by a cardholder or any person to introduce a credit or debit card into an automated banking device or merely displaying or showing a credit or debit card to the issuer, a person or organization providing money, goods, services, or anything else of value, or any other entity with intent to defraud;
  13. “Receives” or “receiving” means acquiring possession or control of a credit or debit card;
  14. “Reencoder” means an electronic device that places encoded information from the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment card;
  15. “Revoked credit card” means a credit card which is no longer valid because permission to use it has been suspended or terminated by the issuer;
  16. “Revoked debit card” means a debit card which is no longer valid because permission to use it has been suspended or terminated by the issuer; and
  17. “Scanning device” means a scanner, reader, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card.

History. Enact. Acts 1970, ch. 83, § 2; 1978, ch. 67, § 2, effective June 17, 1978; 2004, ch. 27, § 2, effective July 13, 2004.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Weinberg, Commercial Law and Consumer Credit, 65 Ky. L.J. 370 (1976-77).

434.570. False statement as to identity or financial condition.

In addition and supplemental to the acts proscribed under KRS 517.090 , a person who makes or causes to be made, either directly or indirectly, any false statement in writing, knowing it to be false and with intent that it be relied on, respecting his identity or that of any other person, firm, or corporation, or as to a material fact about his financial condition or that of any other person, firm, or corporation, for the purpose of procuring the issuance of a credit or debit card, is guilty of a Class D felony.

History. Enact. Acts 1970, ch. 83, § 3; 1974, ch. 406, § 325; 1978, ch. 67, § 3, effective June 17, 1978; 1992, ch. 463, § 51, effective July 14, 1992.

434.580. Theft — Receipt of stolen credit or debit card — Presumption.

  1. A person who takes a credit or debit card from the person, possession, custody or control of another without the consent of the cardholder or of the issuer or who, with knowledge that it has been so taken, receives the credit or debit card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of a misdemeanor and is subject to the penalties set forth in subsection (1) of KRS 434.730 . Taking a credit or debit card without consent includes obtaining it by conduct defined or known as statutory larceny, common-law larceny by trespassory taking, common-law larceny by trick, embezzlement, or obtaining property by false pretenses, false promise or extortion.
  2. A person who has in his possession or under his control two (2) or more credit or debit cards which have been taken or obtained in violation of subsection (1) of this section is presumed to know that the credit or debit cards have been so taken or obtained.

History. Enact. Acts 1970, ch. 83, § 4; 1978, ch. 67, § 4, effective June 17, 1978.

Opinions of Attorney General.

The conflicting penalties for receiving stolen credit cards should be resolved in favor of the lesser penalty found in this section because, in situations where conflicts arise in the construction of a penal statute, they will be resolved in favor of leniency. OAG 76-141 .

Research References and Practice Aids

Cross-References.

Receiving stolen property, KRS 514.110 .

Theft by unlawful taking or disposition, KRS 514.030 .

434.590. Receipt of credit or debit card lost, mislaid, or delivered by mistake, with intent to use or transfer.

A person who receives a credit or debit card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and who retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder is guilty of a misdemeanor and is subject to the penalties set forth in subsection (1) of KRS 434.730 .

History. Enact. Acts 1970, ch. 83, § 5; 1978, ch. 67, § 5, effective June 17, 1978.

Research References and Practice Aids

Cross-References.

Theft of property lost, mislaid, or delivered by mistake, KRS 514.050 .

434.600. Sale by or purchase from person other than issuer.

A person other than the issuer who sells a credit or debit card or a person who buys a credit or debit card from a person other than the issuer is guilty of a Class D felony.

History. Enact. Acts 1970, ch. 83, § 6; 1978, ch. 67, § 6, effective June 17, 1978; 1992, ch. 463, § 52, effective July 14, 1992.

434.610. Control over card as security for debt.

A person who, with intent to defraud the issuer, a participating party, a person or organization providing money, goods, services or anything else of value, or any other person, obtains control over a credit or debit card as security for debt is guilty of a misdemeanor and is subject to the penalties set forth in subsection (1) of KRS 434.730 .

History. Enact. Acts 1970, ch. 83, § 7; 1978, ch. 67, § 7, effective June 17, 1978.

434.620. Receipt of card in violation of KRS 434.570 to 434.610.

A person, other than the issuer, who receives a credit or debit card which he knows was obtained, taken, or retained under circumstances which constitute a violation of KRS 434.570 to 434.610 is guilty of a Class D felony.

History. Enact. Acts 1970, ch. 83, § 8; 1978, ch. 67, § 8, effective June 17, 1978; 1992, ch. 463, § 53, effective July 14, 1992.

Opinions of Attorney General.

The conflicting penalties for receiving stolen credit cards should be resolved in favor of the lesser penalty found in KRS 434.580 rather than the penalty found in this section because, in situations where conflicts arise in the construction of a penal statute, they will be resolved in favor of leniency. OAG 76-141 .

434.630. False making or embossing of credit or debit card — Possession of two or more falsely made or embossed cards — Definitions.

  1. A person who, with intent to defraud a purported issuer, a participating party, a person or organization providing money, goods, services, or anything else of value, or any other person, falsely makes or falsely embosses a purported credit or debit card, or utters such a credit or debit card or possesses such a credit or debit card with knowledge that such credit or debit card has been falsely made or falsely embossed is guilty of a Class D felony.
  2. A person other than the purported issuer who possesses two (2) or more credit or debit cards which are falsely made or falsely embossed is presumed to possess the same with knowledge that they have been falsely embossed or falsely made and with the intent to defraud.
  3. A person “falsely makes” a credit or debit card when he makes or draws, in whole or in part, a device or instrument which purports to be the credit or debit card of a named issuer but which is not such a credit or debit card because the issuer did not authorize the making or drawing, or alters a credit or debit card which was validly issued. A person “falsely embosses” a credit or debit card when, without the authorization of the named issuer, he completes a credit or debit card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the credit or debit card before it can be used by a cardholder.

History. Enact. Acts 1970, ch. 83, § 9; 1978, ch. 67, § 9, effective June 17, 1978; 1992, ch. 463, § 54, effective July 14, 1992.

Research References and Practice Aids

Cross-References.

Criminal possession of forged instrument in the second degree, KRS 516.060 .

Forgery in the second degree, KRS 516.030 .

434.640. Unauthorized signature.

A person other than the cardholder or a person authorized by him who, with intent to defraud the issuer, or a participating party, or a person or organization providing money, goods, services or anything else of value, or any other person, signs a credit or debit card is guilty of a misdemeanor and is subject to the penalties set forth in subsection (1) of KRS 434.730 .

History. Enact. Acts 1970, ch. 83, § 10; 1978, ch. 67, § 10, effective June 17, 1978.

434.650. Fraudulent use — Presumption as to knowledge of revocation.

    1. A person who, with intent to defraud the issuer, a participating party, a person, or organization providing money, goods, services, or anything else of value, or any other person: (1) (a) A person who, with intent to defraud the issuer, a participating party, a person, or organization providing money, goods, services, or anything else of value, or any other person:
      1. Uses for the purpose of obtaining money, goods, services, or anything else of value a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650 , or any of such sections, or a credit or debit card which he or she knows is forged, expired, or revoked;
      2. Obtains money, goods, services, or anything else of value by representing without consent of the cardholder that he or she is the holder of a specified card or by representing that he or she is the holder of a card and suchcard has not in fact been issued;
      3. Uses a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650 , or any of such sections, or a credit or debit card which he or she knows is forged, expired, or revoked, as authority or identification to cash or attempts to cash or otherwise negotiate or transfer a check or other order for payment of money, whether or not negotiable, if said negotiation or transfer or attempt to negotiate or transfer would constitute a crime under KRS 514.040 or 516.030 ; or
      4. Deposits into his or her account or any account, via an automated banking device, a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document not his or her lawful or legal property; is guilty as provided in paragraph (b) of this subsection.
    2. The penalty for violating paragraph (a) of this subsection is a Class B misdemeanor unless:
      1. The value of all money, goods, services, or other things of value obtained in violation of this section over a six (6) month period is five hundred dollars ($500) or more but is less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
      2. The value of all money, goods, services, or other things of value obtained in violation of this section over a six (6) month period is one thousand dollars ($1,000) or more but is less than ten thousand dollars ($10,000), in which case it is a Class D felony;
      3. The person has three (3) or more convictions under subparagraph 1. of this paragraph within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
      4. The value of all money, goods, services, or other things of value obtained in violation of this section over a six (6) month period is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  1. A person who receives money, goods, services, or anything else of value as a result of a false, fictitious, forged, altered, or counterfeit check, draft, money order, or any other such document having been deposited into an account via an automated banking device, knowing at the time of receipt of the money, goods, services, or item of value that the document so deposited was false, fictitious, forged, altered, or counterfeit or that the above described deposited item was not his lawful or legal property, violates this subsection and is subject to the penalties set forth in subsection (1) of this section.
  2. Knowledge of revocation shall be presumed to have been received by a cardholder four (4) days after it has been mailed to him or her at the address set forth on the credit or debit card or at his or her last known address by registered or certified mail, return receipt requested, and, if the address is more than five hundred (500) miles from the place of mailing, by air mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone, and Canada, notice shall be presumed to have been received ten (10) days after mailing by registered or certified mail.

History. Enact. Acts 1970, ch. 83, § 11; 1974, ch. 406, § 326; 1978, ch. 67, § 11, effective June 17, 1978; 1992, ch. 463, § 55, effective July 14, 1992; 2009, ch. 106, § 1, effective June 25, 2009; 2021 ch. 66, § 5, effective June 29, 2021.

NOTES TO DECISIONS

1.Felonies Charged.

Because nothing in either this section or KRS 434.690 was intended to limit the number of felonies which could be charged for acts that qualify on their face, regardless of the period of time considered, the trial court correctly convicted defendant of two (2) felony counts of fraudulently using a credit card for two (2) purchases made at the same store on the same day. Commonwealth v. Lewis, 903 S.W.2d 524, 1995 Ky. LEXIS 65 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 90 (Ky. Aug. 24, 1995).

Trial court did not err in denying defendant’s motion to vacate because counsel’s failure to ask that defendant be sentenced under the newer version of a statute was in error where the issues that had not been settled, and the issue could have been and should have been raised on direct appeal. Teague v. Commonwealth, 428 S.W.3d 630, 2014 Ky. App. LEXIS 4 (Ky. Ct. App. 2014).

2.Attempt.

Because defendant was unsuccessful in obtaining merchandise, he could not be convicted of fraudulent credit card use, but instead could only be convicted of attempt to commit such an offense. Jackson v. Commonwealth, 972 S.W.2d 286, 1997 Ky. App. LEXIS 133 (Ky. Ct. App. 1997).

434.655. Fraudulent use of credit or debit card after reporting it lost, as stolen, or not received.

  1. A cardholder who fraudulently uses a credit or debit card to obtain money, goods, services, or anything else of value after said cardholder has reported to the issuer said credit or debit card lost, as stolen, or not received is deemed to have used said credit or debit card in order to defraud the issuer; and said cardholder shall be guilty of a Class B misdemeanor unless:
    1. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is five hundred dollars ($500) or more but is less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is one thousand dollars ($1,000) or more but is less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. The person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  2. A cardholder who, after using a credit or debit card, fraudulently reports to the issuer that such usage or transaction was not made by said cardholder, or that said credit or debit card was lost, stolen, or not received at the time of such usage or transaction, in order to defraud the issuer, the cardholder, or any other person in connection with said usage, shall be guilty of a Class B misdemeanor unless:
    1. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is five hundred dollars ($500) or more but is less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is one thousand dollars ($1,000) or more but is less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. The person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

History. Enact. Acts 1978, ch. 67, § 17, effective June 17, 1978; 1986, ch. 377, § 1, effective July 15, 1986; 2009, ch. 106, § 2, effective June 25, 2009; 2021 ch. 66, § 6, effective June 29, 2021.

434.660. Fraud by authorized persons, business organization, or financial institution.

A person, business organization, or financial institution who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit or debit card by a cardholder, or any agent or employee of such person, business organization, or financial institution, who, with intent to defraud the issuer, a participating party, the cardholder, or any other person, furnishes money, goods, or services or anything else of value upon presentation of a credit or debit card obtained or retained in violation of KRS 434.570 to 434.650 , or any of such sections, or a credit or debit card which he knows is forged, expired, or revoked is guilty of a Class A misdemeanor, if the value of all money, goods, services, or other things of value furnished in violation of this section over a six (6) month period is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

History. Enact. Acts 1970, ch. 83, § 12; 1978, ch. 67, § 15, effective June 17, 1978; 1992, ch. 463, § 56, effective July 14, 1992; 2009, ch. 106, § 3, effective June 25, 2009.

434.670. Failure to furnish goods, services, etc., represented in writing as furnished.

A person, business organization, or financial institution who is authorized by an issuer to furnish money, goods, services, or anything else of value upon presentation of a credit or debit card by a cardholder, or any agent or employee of such person, business organization, or financial institution, who, with intent to defraud the issuer, a participating party, the cardholder, or any other person, fails to furnish money, goods, services, or anything else of value which he represents in writing to the issuer that he has furnished over a six (6) month period is guilty of a Class A misdemeanor if the difference between the value of all money, goods, services, or anything else of value actually furnished and the value represented to the issuer to have been furnished is less than five hundred dollars ($500), a Class D felony if such value is five hundred dollars ($500) or more but is less than ten thousand dollars ($10,000), or a Class C felony if such value is ten thousand dollars ($10,000) or more.

History. Enact. Acts 1970, ch. 83, § 13; 1978, ch. 67, § 16, effective June 17, 1978; 1992, ch. 463, § 57, effective July 14, 1992; 2009, ch. 106, § 4, effective June 25, 2009.

434.675. Use of scanning device or reencoder to obtain payment card information prohibited.

  1. No person shall use a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card with the intent to defraud the authorized user, the issuer of the authorized user’s payment card, or a merchant.
  2. No person shall use a reencoder to place information encoded on the magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different card with the intent to defraud the authorized user, the issuer of the authorized user’s payment card, or a merchant.

History. Enact. Acts 2004, ch. 27, § 1, effective July 13, 2004.

434.680. Unauthorized production or reproduction of credit or debit card — Definition — Presumption as to possession of incomplete card.

  1. A person other than the cardholder possessing an incomplete credit or debit card, or possessing a purported distinctive element of a credit or debit card, with intent to complete such incomplete credit or debit card or to utilize such purported distinctive element in the production or reproduction of any credit or debit card without the consent of the issuer, or a person possessing, with knowledge of its character, a distinctive element of any credit or debit card or any machinery, plates, or any contrivance designed to produce or reproduce instruments purporting to be the credit or debit cards, or a distinctive element of the credit or debit cards, of an issuer or of any issuer in a group of issuers utilizing a common distinctive element or elements in credit or debit cards issued by all members of such group, who has not consented to the production or reproduction of such card, is guilty of a Class D felony. A credit or debit card is “incomplete” if part of the matter other than the signature of the cardholder, which an issuer or any issuer in a group of issuers utilizing a common distinctive element or elements in credit or debit cards issued by all members of such group, requires to appear on the credit or debit card before it can be used by the cardholder has not yet been stamped, embossed, imprinted, or written on it. A “distinctive element” of a credit or debit card is any material or component used in the fabrication of credit or debit cards which, by virtue of such element’s chemical or physical composition, color, or design, is unique to the credit or debit cards issued by a particular issuer or group of issuers utilizing a common distinctive element or elements in credit or debit cards issued by all members of such group.
  2. A person other than the cardholder or issuer who possesses two (2) or more incomplete credit or debit cards is presumed to possess the same without the consent of the issuer and with the intent to complete them.

History. Enact. Acts 1970, ch. 83, § 14; 1978, ch. 67, § 12, effective June 17, 1978; 1992, ch. 463, § 58, effective July 14, 1992.

434.685. Misuse of electronic information prohibited.

  1. Any person who, with intent to defraud the issuer, the cardholder, or any other person or organization, (a) intercepts, taps or alters electronic information between an automated banking device and the issuer, or (b) originates electronic information to an automated banking device or to the issuer, via any line, wire, or any other means of electronic transmission, at any junction or terminal, or at any location within an E.F.T. system, for the purpose of obtaining money, goods, services or anything else of value, violates this subsection and is subject to the penalties set forth in subsection (2) of KRS 434.730 .
  2. Any person who, with intent to defraud the issuer, cardholder, or any other person or organization, intercepts, taps or alters electronic information between an automated banking device and the issuer, or originates electronic information to an automated banking device or to the issuer, via any line, wire, or other means of electronic transmission, at any junction or terminal, or at any location within the E.F.T. system, and therefore causes funds to be transferred from one account to any other account, violates this subsection and is subject to the penalties set forth in subsection (2) of KRS 434.730 .

History. Enact. Acts 1978, ch. 67, § 13, effective June 17, 1978.

434.690. Receiving goods, services, etc., obtained by fraud — Presumption as to possession of transportation tickets fraudulently obtained.

  1. A person who receives money, goods, services, or anything else of value obtained in violation of KRS 434.650 , knowing or believing that it was so obtained is guilty of a Class B misdemeanor unless:
    1. The value of all money, goods, services, and other things of value received in violation of this section over a six (6) month period is five hundred dollars ($500) or more but is less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of all money, goods, services, and other things of value received in violation of this section over a six (6) month period is one thousand dollars ($1,000) or more but is less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. The person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of all money, goods, services, and other things of value received in violation of this section over a six (6) month period is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  2. A person who possesses three (3) or more tickets for airline, railroad, steamship, or other transportation service, which tickets were obtained by the use of a stolen or forged credit or debit card is presumed to know that such tickets were so obtained.

History. Enact. Acts 1970, ch. 83, § 15; 1978, ch. 67, § 14, effective June 17, 1978; 1992, ch. 463, § 59, effective July 14, 1992; 2009, ch. 106, § 5, effective June 25, 2009; 2021 ch. 66, § 7, effective June 29, 2021.

NOTES TO DECISIONS

1.Felonies Charged.

Because nothing in either KRS 434.650 or this section was intended to limit the number of felonies which could be charged for acts that qualify on their face, regardless of the period of time considered, the trial court correctly convicted defendant of two (2) felony counts of fraudulently using a credit card for two (2) purchases made at the same store on the same day. Commonwealth v. Lewis, 903 S.W.2d 524, 1995 Ky. LEXIS 65 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 90 (Ky. Aug. 24, 1995).

Research References and Practice Aids

Cross-References.

Receiving stolen property, KRS 514.110 .

434.695. Use of false, fictitious, unauthorized or counterfeit card prima facie evidence of knowledge.

The presentation or use of a false, fictitious, unauthorized or counterfeit, credit or debit card, or other credit or debit device for the purpose of obtaining money, goods, services or anything else of value shall be prima facie evidence of knowledge that the said credit or debit device is false, fictitious, counterfeit, or its use is unauthorized.

History. Enact. Acts 1978, ch. 67, § 18, effective June 17, 1978.

434.697. Phishing.

  1. For purposes of this section:
    1. “Electronic mail message” means a message sent to a unique destination that consists of a unique user name or mailbox and a reference to an Internet domain, whether or not displayed, to which the message can be sent or delivered; and
    2. “Identifying information” means specific details that can be used to access a person’s financial accounts or to obtain goods or services, including but not limited to the person’s Social Security number, driver’s license number, bank account number, credit or debit card number, personal identification number, automated or electronic signature, unique biometric data, or account password.
  2. A person is guilty of phishing if he or she knowingly or intentionally solicits, requests, or takes any action to induce another person to provide identifying information by means of a Web page, electronic mail message, or otherwise using the Internet, by representing himself or herself either directly or by implication, to be a third person without the authority or approval of such other person.
  3. In any prosecution for a violation of this section, the Commonwealth is not required to establish, and it is no defense that:
    1. A person other than the defendant who violated this section has not been convicted, apprehended, or identified; or
    2. Some of the acts constituting a violation of this section did not occur in Kentucky or were not a criminal offense or elements of a criminal offense where they did occur.
  4. Phishing is a Class D felony.

History. Enact. Acts 2009, ch. 100, § 12, effective June 25, 2009.

Research References and Practice Aids

Kentucky Law Journal.

Note: Fraud, Fools, and Phishing: Mail Fraud and the Person of Ordinary Prudence in the Internet Age, 99 Ky. L.J. 379 (2010/2011).

434.700. Prosecutions.

In any prosecution for violation of KRS 434.550 to 434.730 , the Commonwealth is not required to establish and it is no defense that:

  1. A person other than the defendant who violated KRS 434.550 to 434.730 has not been convicted, apprehended, or identified; or
  2. Some of the acts constituting the crime did not occur in Kentucky or were not a crime or elements of a crime where they did occur.

History. Enact. Acts 1970, ch. 83, § 16.

434.710. Sufficiency of evidence as to presumptions.

When KRS 434.550 to 434.730 establishes a presumption with respect to any fact which is an element of a crime, it has the following consequences:

  1. When there is sufficient evidence of the facts which give rise to the presumption to go to the jury, the issue of the existence of the presumed facts must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed facts; and
  2. When the issue of the existence of the presumed fact is submitted to the jury, the court shall charge that while the presumed fact, must, on all the evidence, be proven beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact.

History. Enact. Acts 1970, ch. 83, § 17.

434.715. Criminal or civil liability prohibited for false arrest or false imprisonment where prima facie evidence of fraud exists and proper notice is given.

In the event of the existence of prima facie evidence of fraudulent intent as defined in KRS 434.695 and proper notice given as required, any person, firm or corporation causing the arrest of a person so using a credit or debit card shall not be criminally or civilly liable for false arrest or false imprisonment.

History. Enact. Acts 1978, ch. 67, § 19, effective June 17, 1978.

434.720. Construction of KRS 434.550 to 434.730.

KRS 434.550 to 434.730 shall not be construed to preclude the applicability of any other provision of the criminal law of this Commonwealth which presently applies or may in the future apply to any transaction which violates KRS 434.550 to 434.730 , unless such provision is inconsistent with the terms of KRS 434.550 to 434.730.

History. Enact. Acts 1970, ch. 83, § 19.

434.730. Penalties.

  1. A person who has violated KRS 434.590 shall be guilty of a Class A misdemeanor.
  2. A person who has violated KRS 434.600 shall be guilty of a Class D felony.
  3. A person who has violated the provisions of KRS 434.675(1) shall be guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.
  4. A person who has violated the provisions of KRS 434.675(2) shall be guilty of a Class D felony for the first offense and a Class C felony for each subsequent offense.

History. Enact. Acts 1970, ch. 83, § 18; 1986, ch. 331, § 53, effective July 15, 1986; 1992, ch. 463, § 60, effective July 14, 1992; 2004, ch. 27, § 3, effective July 13, 2004.

Unlawful Access to a Computer

434.840. Definitions.

For the purposes of KRS 434.840 to 434.860 , the following words, including any form of the word, and terms shall have the following meanings:

  1. “Access” means to approach, instruct, communicate with, manipulate, store data in, retrieve or intercept data from, or otherwise make use of any resources of, a computer, computer system, or computer network;
  2. “Computer” means any device, equipment, or facility that uses a computer program or other instructions, stored either temporarily or permanently, to perform specific operations including but not limited to logical, arithmetic, or memory functions with or on data or a computer program that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network;
  3. “Computer network” means an interconnection of two (2) or more devices used for the purpose of transmitting any combination of voice, video, or data including but not limited to bridges, routers, switches, antennas, or towers connected by hardwire or wireless communications lines;
  4. “Computer program” means a set of instructions or statements and related data that, when executed in actual or modified form, cause a computer, computer system, or computer network to perform specified functions;
  5. “Computer software” means computer programs, procedures, or associated documentation concerned with the operation of a computer, computer system, or computer network for system control or processing of data;
  6. “Computer system” means a set of related computer equipment, devices, data, software, or hardware that is designed to perform a specific function;
  7. “Data” means a representation of information, knowledge, facts, concepts, or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be stored or processed, or is being stored or processed, or has been stored or processed, in a computer, computer system, or computer network;
  8. “Device” includes but is not limited to an electronic, magnetic, electrochemical, biochemical, hydraulic, optical, or organic object that performs input, output, or storage functions by the manipulation of electronic, magnetic, or other impulses;
  9. “Effective consent” means consent by a person legally authorized to act for the owner. Consent is not effective if it is:
    1. Induced by deception or coercion;
    2. Given by a person who the actor knows is not legally authorized to act for the owner;
    3. Given by a person who by reason of age, mental disease or defect, or intoxication is known by the actor to be unable to make responsible property or data dispositions; or
    4. Used for a purpose other than that for which the consent is given;
  10. “Financial instruments” includes but is not limited to any check, draft, warrant, money order, certificate of deposit, negotiable instrument, letter of credit, bill of exchange, credit or debit card, transaction authorization mechanism, marketable security, or any electronic representation thereof;
  11. “Intellectual property” includes data, text, images, sound, codes, computer programs, software, or databases which may be in any form, including but not limited to, computer printouts, magnetic storage media, punched cards, or which may be stored internally in the memory of a computer;
  12. “Loss or damage” means the result of accessing, attempting to access, or causing to be accessed, without effective consent, any computer software, computer program, data, computer, computer system, computer network, or any part thereof, including but not limited to theft, alteration, or destruction of data, security breaches, or disruption of services;
  13. “Owner” means a person who has title, license, or other lawful possession of the property, a person who has the right to restrict access to the property, or a person who has a greater right to possession of the property than the actor;
  14. “Property” includes but is not limited to intellectual property, financial instruments, data, computer programs, documentation associated with data, computers, computer systems and computer programs, all in machine-readable or human-readable form, and any tangible or intangible item of value; and
  15. “Services” includes but is not limited to the use of a computer, a computer system, a computer network, computer software, computer program, or data to perform tasks.

History. Enact. Acts 1984, ch. 210, § 1, effective July 13, 1984; 2002, ch. 350, § 1, effective July 15, 2002.

434.845. Unlawful access to a computer in the first degree.

  1. A person is guilty of unlawful access to a computer in the first degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, for the purpose of:
    1. Devising or executing any scheme or artifice to defraud; or
    2. Obtaining money, property, or services for themselves or another by means of false or fraudulent pretenses, representations, or promises.
  2. Unlawful access to a computer in the first degree is a Class C felony.

History. Enact. Acts 1984, ch. 210, § 2, effective July 13, 1984; 2002, ch. 350, § 2, effective July 15, 2002.

NOTES TO DECISIONS

1.Double Jeopardy.

Defendant’s convictions for first-degree robbery under KRS 515.020 and first-degree unlawful access to a computer under KRS 434.845 did not violate the double jeopardy clause under either Ky. Const. § 13 or the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V. Each offense had at least one element that the other offense did not and, indeed, the two offenses did not even share a common element, nor did the legislature indicate that it did not intend convictions could be obtained for both offenses in the same case. Day v. Commonwealth, 367 S.W.3d 616, 2012 Ky. App. LEXIS 74 (Ky. Ct. App. 2012).

2.—Elements.

Defendant’s motion for a directed verdict on a charge of unlawful access to a computer in the first degree, Ky. Rev. Stat. Ann. § 434.845(1), where her use of the self-checkout register to lawfully purchase an item never exceeded the scope of the retailer’s consent, and the use of the scanner was only peripherally related to the theft. The theft, which took place through paying the price of one item while obtaining two other items, was entirely external from the computer system. Shirley v. Commonwealth, 2021 Ky. App. LEXIS 73 (Ky. Ct. App. June 4, 2021).

434.850. Unlawful access to a computer in the second degree.

  1. A person is guilty of unlawful access to a computer in the second degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which results in the loss or damage of three hundred dollars ($300) or more.
  2. Unlawful access to a computer in the second degree is a Class D felony.

History. Enact. Acts 1984, ch. 210, § 3, effective July 13, 1984; 2002, ch. 350, § 3, effective July 15, 2002.

434.851. Unlawful access in the third degree.

  1. A person is guilty of unlawful access in the third degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which results in the loss or damage of less than three hundred dollars ($300).
  2. Unlawful access to a computer in the third degree is a Class A misdemeanor.

History. Enact. Acts 2002, ch. 350, § 4, effective July 15, 2002.

434.853. Unlawful access in the fourth degree.

  1. A person is guilty of unlawful access in the fourth degree when he or she, without the effective consent of the owner, knowingly and willfully, directly or indirectly accesses, causes to be accessed, or attempts to access any computer software, computer program, data, computer, computer system, computer network, or any part thereof, which does not result in loss or damage.
  2. Unlawful access to a computer in the fourth degree is a Class B misdemeanor.

History. Enact. Acts 2002, ch. 350, § 5, effective July 15, 2002.

434.855. Misuse of computer information.

  1. A person is guilty of misuse of computer information when he or she:
    1. Receives, conceals, or uses, or aids another in doing so, any proceeds of a violation of KRS 434.845 ; or
    2. Receives, conceals, or uses or aids another in doing so, any books, records, documents, property, financial instrument, computer software, computer program, or other material, property, or objects, knowing the same to have been used in or obtained from a violation of KRS 434.845 .
  2. Misuse of computer information is a Class C felony.

History. Enact. Acts 1984, ch. 210, § 4, effective July 13, 1984; 2002, ch. 350, § 6, effective July 15, 2002.

434.860. Venue.

For the purpose of venue under the provisions of KRS 434.845 , 434.850 , 434.851 , 434.853 , or 434.855 , any violation of KRS 434.845 , 434.850 , 434.851 , 434.853 , or 434.855 shall be considered to have been committed: in any county in which any act was performed in furtherance of any transaction violating KRS 434.845, 434.850, 434.851, 434.853, or 434.855; in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, property, financial instrument, computer software, computer program or other material, objects, or items which were used in furtherance of said violation; and in any county from which, to which or through which any access to a computer, computer system, or computer network was made whether by wires, electromagnetic waves, microwaves, or any other means of communication.

History. Enact. Acts 1984, ch. 210, § 5, effective July 13, 1984; 2002, ch. 350, § 7, effective July 15, 2002.

Financial Information

434.870. Definitions for KRS 434.870 to 434.876.

As used in KRS 434.870 to 434.876 , unless the context otherwise requires:

  1. “Financial information” includes but is not limited to any of the following information identifiable to the individual that concerns the amount and conditions of an individual’s assets, liabilities, or credit:
    1. Account numbers and balances;
    2. Transactional information concerning any account;
    3. Codes, passwords, Social Security numbers, tax identification numbers, and driver’s license numbers; and
    4. Information held for the purpose of credit or loan acquisition, account access, or transaction initiation;
  2. “Financial information repository” means any person engaged in the business of providing services to customers who have a credit, deposit, trust, stock, or other financial account or relationship with the person; and
  3. “Person” means an individual, sole proprietorship, partnership, corporation, limited liability company, association, or any entity however organized and whether or not organized to operate for profit.

History. Enact. Acts 2002, ch. 175, § 4, effective July 15, 2002; 2006, ch. 42, § 7, effective July 12, 2006.

434.872. Disclosure of information from financial information repository — Penalties.

  1. No person may obtain or attempt to obtain, or cause to be disclosed or attempt to cause to be disclosed to any person, financial information from a financial information repository by knowingly:
    1. Making a false, fictitious, or fraudulent statement or representation to an officer, employee, or agent of a financial information repository with the intent to deceive the officer, employee, or agent into relying on that statement or representation for the purpose of releasing financial information;
    2. Making a false, fictitious, or fraudulent statement or representation to a customer of a financial information repository with the intent to deceive the customer into releasing financial information or authorizing the release of such information; or
    3. Providing any document to an officer, employee, or agent of a financial information repository, knowing that the document is forged, counterfeit, lost, or stolen, or that the document was fraudulently obtained, or that the document contains a false, fictitious, or fraudulent statement or representation, if such a document is provided with the intent to deceive the officer, employee, or agent into releasing the financial information.
  2. Violation of this section is a Class D felony. If the person violating this section is a business that has violated this section on more than one (1) occasion, then that person also violates the Consumer Protection Act, KRS 367.110 to 367.300 .

History. Enact. Acts 2002, ch. 175, § 5, effective July 15, 2002.

434.874. Trafficking in financial information — Penalties.

  1. A person is guilty of trafficking in financial information when he or she manufactures, sells, transfers, or purchases, or possesses with the intent to manufacture, sell, transfer, or purchase financial information for the purpose of committing any crime.
  2. Trafficking in financial information is a Class C felony. If the person violating this section is a business that has violated this section on more than one (1) occasion, then that person also violates the Consumer Protection Act, KRS 367.110 to 367.300 .

History. Enact. Acts 2002, ch. 175, § 6, effective July 15, 2002.

434.876. Application of KRS 434.870 to 434.876.

  1. No provision of KRS 434.870 to 434.876 shall be construed to prevent any action by a law enforcement agency, or any officer, employee, or agent of such agency, or any action of an agent of the financial information repository when working in conjunction with a law enforcement agency.
  2. KRS 434.870 to 434.876 does not apply to:
    1. Efforts by the financial information repository to test security procedures or systems of the financial institution repository for maintaining the confidentiality of customer information;
    2. Investigations of alleged financial institution repository employee misconduct or negligence; or
    3. Efforts to recover financial or personal information of the financial institution obtained or received by another person in any manner described in KRS 434.872 .

History. Enact. Acts 2002, ch. 175, § 7, effective July 15, 2002.

CHAPTER 435 Offenses Against Persons [Repealed]

435.010. Murder. [Repealed.]

Compiler’s Notes.

This section (1149) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.020 .

435.020. Voluntary manslaughter. [Repealed.]

Compiler’s Notes.

This section (1150) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.030 .

435.022. Involuntary manslaughter. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 90, §§ 1, 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.040 , 507.050 .

435.025. Death occurring as result of negligently operating motor vehicle. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 51) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.040 , 507.050 .

435.030. Homicide occurring in course of criminal syndicalism or sedition. [Repealed.]

Compiler’s Notes.

This section (1148a-8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

435.040. Homicide occurring in course of abortion. [Repealed.]

Compiler’s Notes.

This section (1219a-3) was repealed by Acts 1974, ch. 255, § 19 and ch. 406, § 336, effective January 1, 1975.

435.050. Homicide occurring in course of striking, stabbing or shooting. [Repealed.]

Compiler’s Notes.

This section (1151) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.030 .

435.060. Homicide or injury resulting from obstruction of road. [Repealed.]

Compiler’s Notes.

This section (1241) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.020 , 507.040 , 508.010 , 508.030 .

435.070. Lynching or mob violence. [Repealed.]

Compiler’s Notes.

This section (1151a-1, 1151a-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

435.080. Rape of child under twelve — Attempted rape. [Repealed.]

Compiler’s Notes.

This section (1152, 1153) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 510.040 . For attempt law, see KRS 506.010 .

435.090. Rape of female over twelve. [Repealed.]

Compiler’s Notes.

This section (1154: Acts 1944, ch. 143) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 510.040 .

435.100. Carnal knowledge of female child under eighteen with her consent, or of male child under eighteen. [Repealed.]

Compiler’s Notes.

This section (1155) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 510.040 to 510.060 .

435.105. Indecent or immoral practices with another. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 36, § 1; 1962, ch. 298, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 510.110 to 510.140 .

435.110. Taking or detaining woman against her will. [Repealed.]

Compiler’s Notes.

This section (1158) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.020 , 509.030 , 510.110 .

435.120. Taking girl under fourteen away from parents. [Repealed.]

Compiler’s Notes.

This section (1156, 1157) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.070 .

435.130. Taking or enticing away or detaining child under ten. [Repealed.]

Compiler’s Notes.

This section (1157) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.070 .

435.140. Kidnapping. [Repealed.]

Compiler’s Notes.

This section (1157a: Acts 1962, ch. 234, § 61) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.070 .

435.150. Unlawful arrest, imprisonment or transportation out of State. [Repealed.]

Compiler’s Notes.

This section (1221) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 509.020 , 509.030 .

435.160. Maiming. [Repealed.]

Compiler’s Notes.

This section (1165) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.010 , 508.020 .

435.170. Malicious and wilful shooting, cutting or poisoning — Shooting or throwing missile into train, station, steamboat, motor vehicle or building. [Repealed.]

Compiler’s Notes.

This section (1166, 1227a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.010 to 508.030 and the related offenses of criminal attempt, 506.010 , criminal solicitation, 506.030 , aiding an offense, 502.020 , and attempted murder, 506.010 and 507.020 .

435.180. Shooting, wounding or cutting in sudden affray or heat and passion, without previous malice. [Repealed.]

Compiler’s Notes.

This section (1242) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.040 .

435.190. Reckless shooting or throwing of missile into train, station or motor vehicle. [Repealed.]

Compiler’s Notes.

This section (794) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 507.020 , 508.010 to 508.030 , 508.060 , 508.070 .

435.200. Drawing, flourishing or recklessly using deadly weapon. [Repealed.]

Compiler’s Notes.

This section (1308) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.050 , 508.070 .

435.210. Drawing or flourishing deadly weapon in passenger coach. [Repealed.]

Compiler’s Notes.

This section (1308a-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.050 , 508.070 .

435.220. Shooting firearms in city. [Repealed.]

Compiler’s Notes.

This section (1347) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.070 .

435.230. Carrying concealed deadly weapon — Selling deadly weapon to minor. [Repealed.]

Compiler’s Notes.

This section (1309, 1313: Acts 1946, ch. 40; 1970, ch. 19, § 1; 1970, ch. 172, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 527.020 , 530.070 .

435.235. Confiscation of deadly weapons. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 42, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 527.060 .

435.240. Abandonment of child under sixteen or pregnant wife in destitute circumstances — Postponement of prosecution — Power of circuit court over verdict or indictment — Desertion, abandonment or nonsupport by divorced parent — Taking of child from divorced parent to whom custody has been awarded. [Repealed.]

Compiler’s Notes.

This section (331i-1, 331i-2: Acts 1954, ch. 56) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.040 , 530.050 .

435.250. Sending threatening letter — Incriminating testimony. [Repealed.]

Compiler’s Notes.

This section (1241a-6, 1241a-7) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.080 .

435.260. Demand of thing of value by menace or threat of violence. [Repealed.]

Compiler’s Notes.

This section (1376qq-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.080 .

435.270. Blackmail. [Repealed.]

Compiler’s Notes.

This section (1376q-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.080 .

435.280. Oral threat similar to blackmail. [Repealed.]

Compiler’s Notes.

This section (1376q-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.080 .

435.290. Nature of threat in KRS 435.270 or 435.280. [Repealed.]

Compiler’s Notes.

This section (1376q-4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.080 .

435.300. Spreading slanderous report. [Repealed.]

Compiler’s Notes.

This section (1376n) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

435.310. Fraudulently having one adjudged of unsound mind or confined in an institution. [Repealed.]

Compiler’s Notes.

This section (216aa-102) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see provisions dealing with false imprisonment, KRS 509.030 , conspiracy, KRS 506.040 , perjury and related offenses, KRS 523.010 to 523.100 , and interference with judicial administration, KRS 524.010 to 524.100 .

435.320. Disclosure of information obtained during employment to aid competitor of employer. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 138, §§ 1 to 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 518.020 , 518.030 .

CHAPTER 436 Offenses Against Morality

436.010. Seduction of female under twenty-one. [Repealed.]

Compiler’s Notes.

This section (1214) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.020. Abortion or miscarriage. [Repealed.]

Compiler’s Notes.

This section (1219a-1, 1219a-2, 1219a-4) was repealed by Acts 1974, ch. 255, § 19 and ch. 406, § 336, effective January 1, 1975. For present law, see KRS 311.710 to 311.810 , 311.990 , 436.026 .

436.023. Waiting period required between consent to and performance of abortion. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 255, §§ 16, 17(8); 1978, ch. 384, § 119, effective June 17, 1978) was repealed by Acts 1982, ch. 342, § 12, effective July 15, 1982.

436.026. Sale or transfer of viable aborted child for use in experimentation prohibited.

Any person who shall sell, transfer, distribute, or give away any live or viable aborted child or permits such child to be used for any form of experimentation shall be guilty of a Class B felony. Nothing contained in this section shall be construed as prohibiting adoption or foster care proceedings pursuant to the provisions of the laws of the Commonwealth.

History. Enact. Acts 1974, ch. 255, § 13; 1992, ch. 463, § 61, effective July 14, 1992.

NOTES TO DECISIONS

1.Constitutionality.

In class action by physicians challenging enforcement of state abortion statutes, this section was held valid as furthering the state’s interest in preserving potential human life. Wolfe v. Schroering, 388 F. Supp. 631, 1974 U.S. Dist. LEXIS 5712 (W.D. Ky. 1974 ), aff'd in part and rev'd in part, 541 F.2d 523, 1976 U.S. App. LEXIS 7513 (6th Cir. Ky. 1976 ).

Research References and Practice Aids

Cross-References.

Abortion procedures and regulation, KRS 311.710 to 311.810 , 311.990 .

436.030. Concealing birth of bastard. [Repealed.]

Compiler’s Notes.

This section (1220) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.030 .

436.040. Pandering. [Repealed.]

Compiler’s Notes.

This section (1215a, 1215b-1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 529.040 .

436.050. Sodomy — Buggery. [Repealed.]

Compiler’s Notes.

This section (1218) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 510.070 to 510.100 , 525.130 .

436.060. Incest. [Repealed.]

Compiler’s Notes.

This section (1219) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.020 .

436.070. Fornication — Adultery. [Repealed.]

Compiler’s Notes.

This section (1320) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.075. Prostitution, lewdness and assignation. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 135, §§ 1 to 4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 529.010 to 529.070 .

436.080. Bigamy. [Repealed.]

Compiler’s Notes.

This section (1216) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 530.010 .

436.090. Manufacture, distribution or advertising of articles for immoral use. [Repealed.]

Compiler’s Notes.

This section (1352, 1354) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.020 .

436.100. Distribution of obscene literature. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 273, §§ 1 to 4) was repealed by Acts 1966, ch. 40, § 10. For present law, see KRS 531.020 .

436.101. Obscene matter, distribution, penalties, destruction. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 40, §§ 1 to 9) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.010 to 531.080 .

436.107. Use of obscene language or proposals on telephone — Notice of law on telephone books. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 167, §§ 1 to 3; 1974, ch. 406, § 333) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 438.230 .

436.110. Publications featuring crime. [Repealed.]

Compiler’s Notes.

This section (1353, 1354) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.120. Exceptions to KRS 436.090 and 436.110. [Repealed.]

Compiler’s Notes.

This section (1355: Acts 1970, ch. 92, § 95) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.070 .

436.130. Publications featuring pictures of people influenced by stimulants. [Repealed.]

Compiler’s Notes.

This section (1351) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.140. Appearing on highway in bathing garb. [Repealed.]

Compiler’s Notes.

This section (1376m-1, 1376m-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.150. Profane cursing or swearing. [Repealed.]

Compiler’s Notes.

This section (1319) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.070 .

436.155. Scalping of sports tickets. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 67, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 518.070 .

436.160. Working on Sunday — Work of necessity or charity, athletic games and certain businesses and employers excluded — Penalty.

  1. Any person who works on Sunday at his own or at any other occupation or employs any other person, in labor or other business, whether for profit or amusement, unless his work or the employment of others is in the course of ordinary household duties, work of necessity or charity or work required in the maintenance or operation of a public service or public utility plant or system, shall be fined not less than two dollars ($2) nor more than fifty dollars ($50). The employment of every person employed in violation of this subsection shall be deemed a separate offense.
  2. Persons who are members of a religious society which observes as a Sabbath any other day in the week than Sunday shall not be liable to the penalty prescribed in subsection (1) of this section, if they observe as a Sabbath one (1) day in each seven (7).
  3. Subsection (1) of this section shall not apply to amateur sports, athletic games, or operation of grocery stores whose principal business is the sale of groceries and related food items, drug stores whose principal business is the sale of drugs and related drug items, gift shops, souvenir shops, fishing tackle shops and bait shops, moving picture shows, chautauquas, filling stations, or opera.
  4. Subsection (1) of this section shall not apply to employers using continuous work scheduling provided that such scheduling permits at least one (1) day of rest each calendar week for each employee.

History. 1290a-7, 1290a-11, 1321, 1323, 1369, 1979: amend. Acts 1972, ch. 18, § 1; 1978, ch. 250, § 1, effective June 17, 1978.

NOTES TO DECISIONS

1.Constitutionality.

The express prohibition, prior to 1972 amendment, against allowing pool-room operators to open for business on Sunday was constitutional and valid. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

Exceptions in the Sunday closing law do not make the statute unconstitutional as being discriminatory. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ).

This section is not unconstitutional as establishing a religion. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ).

This section is not void for vagueness. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ).

2.Purpose.

Sunday prohibiting laws, though of religious origin, are not upheld on religious grounds, but upon the theory that they are a valid exercise of police power and must tend toward the prevention of offenses, or the preservation of public health, morals, safety or welfare. Harlan v. Scott, 290 Ky. 585 , 162 S.W.2d 8, 1942 Ky. LEXIS 446 ( Ky. 1942 ).

3.Construction.

The legislature alone can declare by its enactment how Sunday shall be kept, and the courts must construe and apply the Sunday statute according to its meaning. Capital Theater Co. v. Commonwealth, 178 Ky. 780 , 199 S.W. 1076, 1918 Ky. LEXIS 457 ( Ky. 1918 ).

KRS 244.290 and 244.480 permitting Sunday sales of alcoholic beverages are simply additional exemptions from this section. Commonwealth v. Arlan's Dep't Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

This section has not been impliedly repealed by KRS 244.290 and 244.480 authorizing the sale of alcoholic beverages on Sunday nor by KRS 337.050 requiring time-and-a-half pay for work done on the seventh day of the week. Commonwealth v. Arlan's Dep't Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

4.Document Executed on Sunday.

Will executed on Sunday is not invalidated by Sunday closing law. Hall v. Childress, 420 S.W.2d 398, 1967 Ky. LEXIS 106 ( Ky. 1967 ).

5.Working.
6.—Of Necessity.

The Sunday closing law is not void for vagueness in its exemption of work of necessity. Commonwealth v. Rink's Dep't Stores, Inc., 444 S.W.2d 544, 1969 Ky. LEXIS 212 ( Ky. 1969 ).

7.— —Barbering.

Barbering on Sunday is not a work of necessity within this section. Gray v. Commonwealth, 171 Ky. 269 , 188 S.W. 354, 1916 Ky. LEXIS 331 ( Ky. 1916 ) ( Ky. 1916 ).

8.— —Department Store.

The operation of a department store selling clothing, jewelry, cameras, utensils, appliances, hardware, cosmetics, toys, food for consumption both on and off premises and sundries is not a “work of necessity” and does not come within any of the other exceptions set forth in subsection (1) of this section. Arlan's Dep't Store v. Commonwealth, 369 S.W.2d 9, 1963 Ky. LEXIS 55 ( Ky. 1963 ).

9.— —Grocery or Confectionery.

Particular articles which a grocery or confectionery may sell on Sunday to be excused as work of necessity is to be determined by facts and circumstances surrounding the particular transactions. Commonwealth v. London, 149 Ky. 372 , 149 S.W. 852, 1912 Ky. LEXIS 637 ( Ky. 1912 ). See McAfee v. Commonwealth, 173 Ky. 83 , 190 S.W. 671, 1917 Ky. LEXIS 417 ( Ky. 1917 ).

The keeping open of a place of business on Sunday at which soda water, soft drinks, coca-cola, cigars and tobacco, sandwiches, various kinds of canned goods, cheese and crackers are sold, is doing business on Sunday in violation of this section. Commonwealth v. London, 149 Ky. 372 , 149 S.W. 852, 1912 Ky. LEXIS 637 ( Ky. 1912 ). See McAfee v. Commonwealth, 173 Ky. 83 , 190 S.W. 671, 1917 Ky. LEXIS 417 ( Ky. 1917 ).

10.— —Manufacturing Carbon Black.

The manufacture of “carbon black” on Sunday was a work of necessity within the meaning of this statute since it was imperatively necessary that the plant be kept in continuous operation. Natural Gas Products Co. v. Thurman, 205 Ky. 100 , 265 S.W. 475, 1924 Ky. LEXIS 48 ( Ky. 1924 ).

11.— —Prison Guard.

Work required of a prison guard by statute and rules of prison commissioners is regarded as “work of necessity” in the meaning of this section. Page v. O'Sullivan, 159 Ky. 703 , 169 S.W. 542, 1914 Ky. LEXIS 898 ( Ky. 1914 ).

12.— —Railroad Employees.

When the work alleged to have been done by railroad employees was white-washing, mowing, pulling and cutting grass on right of way, said work was not within the exception of this section, as it could be done on week days, and was not necessary to be done on the Sabbath. Commonwealth v. Chesapeake & O. R. Co., 128 Ky. 542 , 108 S.W. 851, 32 Ky. L. Rptr. 1400 , 1908 Ky. LEXIS 70 ( Ky. 1908 ).

13.— —Restaurants.

It is not a violation of this section for the keeper of a restaurant to keep his place of business open on Sunday to sell bread, sandwiches, coffee and similar articles. Commonwealth v. London, 149 Ky. 372 , 149 S.W. 852, 1912 Ky. LEXIS 637 ( Ky. 1912 ).

14.— —Theaters.

Cities are without power to prohibit operation of theaters on Sunday, and any regulation of hours must be reasonable. Harlan v. Scott, 290 Ky. 585 , 162 S.W.2d 8, 1942 Ky. LEXIS 446 ( Ky. 1942 ).

15.Religious Society.

It is not necessary under the exception in this section that Orthodox Jews shall observe the Sabbath from midnight Friday to midnight Saturday, in order to be exempt, it being sufficient if they regularly observe the Jewish Sabbath from sundown Friday evening to sundown Saturday evening. Cohen v. Webb, 175 Ky. 1 , 192 S.W. 828, 1917 Ky. LEXIS 262 ( Ky. 1 917 ), overruled in part, Purnell v. Maysville Water Co., 193 Ky. 85 , 234 S.W. 967, 1921 Ky. LEXIS 189 ( Ky. 1921 ), overruled in part, Covington v. Gausepohl, 250 Ky. 323 , 62 S.W.2d 1040, 1933 Ky. LEXIS 682 ( Ky. 1933 ).

The exemption in this section for persons observing a Sabbath other than Sunday does not affirmatively prefer any religion nor amount to the establishment of a religion, but simply avoids penalizing economically the person who conscientiously observes a Sabbath other than Sunday. Commonwealth v. Arlan's Dep't Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

16.Equal Protection of the Law.

Enforcement of Sunday closing law against department store while allowing pharmacies, groceries, and car washes to do business as usual constituted a denial of equal protection of the law. Ashland v. Heck's, Inc., 407 S.W.2d 421, 1966 Ky. LEXIS 164 ( Ky. 1966 ).

Merchants and hunters, or merchandising and hunting, are properly of such different classes, and so designated and treated in the Sunday closing law, that there can be no denial of equal protection in the enforcement of the law relating to one of the classes but not the other. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ) (decision prior to 1972 amendment).

Where plaintiffs alleged that other merchants were permitted to do business on Sunday, and that previous indictments for violation of the Sunday closing law had been continued without hearing or trial, these allegations constituted a sufficient pleading of a claim of discrimination. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ).

Where the trial judge dismissed the plaintiff’s complaint of alleged discrimination by taking judicial notice that indictments against 10 other businesses for violations were pending before the court, the dismissal was in error since the other indictments had been continued and therefore did not refute the plaintiff’s claim of discrimination. Gibson Products Co. v. Lowe, 440 S.W.2d 793, 1969 Ky. LEXIS 350 ( Ky. 1969 ).

17.Separate Offenses.

Where a penal action was instituted for causing and permitting eight (8) employees (naming them) to work on Sunday, refusal to require the Commonwealth to elect which of the causes it would prosecute was not error for this section provides that every person so employed is a separate offense. Commonwealth v. Chesapeake & O. R. Co., 128 Ky. 542 , 108 S.W. 851, 32 Ky. L. Rptr. 1400 , 1908 Ky. LEXIS 70 ( Ky. 1908 ).

18.Ordinances.

A city could not pass a Sunday closing law by ordinance once the state had preempted the subject by statute. Boyle v. Campbell, 450 S.W.2d 265, 1970 Ky. LEXIS 441 ( Ky. 1970 ).

A city ordinance providing for Sunday closing was invalid for to the extent it duplicated the state statute it accomplished no purpose and to the extent it defined a term found in the statute it could not be given the force of law. Boyle v. Campbell, 450 S.W.2d 265, 1970 Ky. LEXIS 441 ( Ky. 1970 ) (decision prior to 1972 amendment).

Where the Court of Appeals had previously judicially interpreted a “work of necessity” as not including some of the items permitted by a city ordinance, the conflict between the statute and the ordinance rendered the ordinance invalid. Boyle v. Campbell, 450 S.W.2d 265, 1970 Ky. LEXIS 441 ( Ky. 1970 ) (decision prior to 1972 amendment).

19.Continuous Work Scheduling.

In enacting subsection (4) of this section the General Assembly intended the expression “continuous work scheduling” to mean every day rather than every hour, and thus an employer who routinely operates his business for a substantial period of time each and every day of the week may operate it on Sundays if each of his employees is allowed at least one (1) full day off during each calendar week. Commonwealth v. Southerland, 601 S.W.2d 908, 1980 Ky. LEXIS 230 ( Ky. 1980 ).

Cited in:

McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, 1961 U.S. LEXIS 2008 (U.S. 1961); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563, 1961 U.S. LEXIS 1059 (U.S. 1961); Commonwealth v. Louisville & N. R. Co., 140 Ky. 21 , 130 S.W. 798, 1910 Ky. LEXIS 154 ( Ky. 1910 ); Hinkel & Edelen v. Pruitt, 151 Ky. 34 , 151 S.W. 43, 1912 Ky. LEXIS 753 ( Ky. 1912 ) ( Ky. 1912 ); Marshall v. Herndon, 161 Ky. 232 , 170 S.W. 623, 1914 Ky. LEXIS 45 ( Ky. 1914 ); Singleton v. Commonwealth, 164 Ky. 243 , 175 S.W. 372, 1915 Ky. LEXIS 364 ( Ky. 1915 ); Commonwealth v. Hagan, 167 Ky. 619 , 181 S.W. 184, 1916 Ky. LEXIS 45 4 ( Ky. 1916 ); Bertram v. Morgan, 173 Ky. 655 , 191 S.W. 317, 1917 Ky. LEXIS 491 ( Ky. 1917 ) ( Ky. 1917 ); Commonwealth v. Bowling Green Athletic Ass'n, 207 Ky. 170 , 268 S.W. 1088, 1925 Ky. LEXIS 45 ( Ky. 1925 ); Hofgesang v. Silver, 223 Ky. 101 , 3 S.W.2d 185, 1928 Ky. LEXIS 292 ( Ky. 1928 ); Commonwealth v. Euster, 237 Ky. 162 , 35 S.W.2d 1, 1931 Ky. LEXIS 560 ( Ky. 1931 ); Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ); Strand Amusement Co. v. Commonwealth, 241 Ky. 48 , 43 S.W.2d 321, 1931 Ky. LEXIS 6 (Ky. 1931); Commonwealth v. Phoenix Amusement Co., 241 Ky. 678 , 44 S.W.2d 830, 1931 Ky. LEXIS 150 (Ky. 1931); Strand Amusement Co. v. Owensboro, 242 Ky. 772 , 47 S.W.2d 710, 1932 Ky. LEXIS 359 ( Ky. 1932 ); Taylor Drug Stores, Inc. v. Associated Dry Goods Corp., 560 F.2d 211, 1977 U.S. App. LEXIS 12031 (6th Cir. Ky. 1977 ).

Opinions of Attorney General.

It would not be permissible under the law for operators of a billiard parlor to use the tables to give free instruction in the game of pocket billiards on Sunday. OAG 63-549 .

Obtaining signatures for a library petition on Sunday is exempt from the operation of the statute. OAG 67-150 .

Sunday dates for standardbred racing should not be authorized by the Kentucky trotting commission until the legality of such action is determined. OAG 71-18 .

If a violation of this section is committed within the city the police court, county court, Circuit Court and justices of the peace have jurisdiction on the basis of the amount of the fine. OAG 72-486 .

Pool table facilities operated on the Morehead campus are subject to this section as such an activity is not considered an amateur sport under the exception in subsection (3). OAG 72-727 .

It is unnecessary for a city to pass an ordinance prohibiting the operation of a pool-room on Sunday as this is state law and, under subsection (5) of this section (prior to 1972 amendment), a city or county had power to authorize, by ordinance, a pool-room to remain open on Sunday but not between the hours of 6 a.m. and noon, and, in the absence of such ordinance, the state law still prohibits a pool-room from remaining open on Sunday. OAG 73-211 .

Under the regulatory authority of this section and KRS 436.165 a city may, subject to the restrictions in subsection (1) of KRS 436.165 , establish reasonable hours during which the applicable establishment may remain open on Sunday. OAG 74-533 .

A pool hall may not operate on Sunday unless the local legislative body has adopted an ordinance authorizing such an operation but, even then it could not be open between the hours of 6:00 a.m. and noon. OAG 75-211 .

A store selling new and used clothing, costume jewelry, dishes, glasses and antiques does not qualify as a gift shop and is not excepted from the Sunday closing law. OAG 75-365 .

A qualifying grocery or drug store may sell on Sundays items not related to food or drugs if such items are normally carried in stock. OAG 77-684 .

Because administrative board members are regularly engaged in other full-time employment and do not occupy the respective board positions as a means of making a livelihood or as their regular business or employment, such members do not come within the ambit of subsection (1) of this section. OAG 79-216 .

While a city can no longer utilize the provisions of the Sunday Closing Law under this section and KRS 436.165 to prohibit a pool hall from operating on Sunday, if that establishment is routinely operated for a substantial period of time each and every day of the week and if each of the employees of that establishment is allowed one (1) full day off during each calendar week, the city, under its police powers to protect the public morals and the general welfare of its citizens pursuant to KRS 82.082 , may enact reasonable ordinances to regulate the operation, as to the hours of operation and location, of pool halls within the city limits. OAG 81-298 .

To qualify for the “continuous work scheduling” exception, and thus be permitted to operate on Sundays, a business which routinely operates for a substantial period of time each day, Monday through Saturday, must provide each employee with at least one (1) full day off during each calendar week, or be subject to the criminal fines specified in this section. OAG 95-38 .

Section 436.165 relates specifically to retail sales and activities, but a private manufacturing facility or business would not be regulated by this statute as it does not meet the definition of retail sales and activities, and to do so would be to stretch the definition beyond its logical intent; however, private manufacturing facilities and businesses are subject to the provisions of this section. OAG 95-38 .

To be able to work seven days, the employer must meet the exceptions set out in subsections (1), (3) or (4) of this section and, because an employer, who qualifies for the exception to the Sunday working rules pursuant to the continuous work scheduling requirement, must provide his employees with one day of rest each calendar week, KRS 337.050 will not come into play; therefore, the overtime pay provisions only apply to those businesses that meet the exceptions specified in subsections (1) and (3) of this section. OAG 95-38 .

Research References and Practice Aids

Kentucky Law Journal.

Bland, “A Wanton Gospeller” Cries Out for Repeal of the Sunday Closing Law, 58 Ky. L.J. 275 (1970).

436.165. Retail sales and activities on Sunday subject to control of legislative body of city or county — Restrictions — Public vote.

In addition to the provisions of KRS 436.160 :

  1. The legislative body of any city, except as to activities permitted under KRS 436.160 , shall have the exclusive power to enact ordinances or orders permitting and regulating other retail sales and activities on Sunday within its jurisdictional boundaries, subject to subsection (4) hereof.
  2. The fiscal court of each county, except as to activities permitted under KRS 436.160 , shall have exclusive power to enact resolutions or orders permitting and regulating other retail sales and activities on Sunday in that portion of the county which lies outside of the corporate limits of any cities within said county, subject to subsection (4) hereof.
  3. In any city, county, or urban-county government where the legislative body has failed to enact ordinances permitting retail sales and activities on Sunday, the matter may be put to a vote of the people. Upon a petition signed by eligible voters in a number equal to twenty-five percent (25%) of the voters who voted in the last general election, a proposition to permit retail sales and activities on Sunday shall be placed before the voters at the next general election. Any such petition shall be submitted to the county clerk of that county for verification of the signatures. The petition shall be submitted to the county clerk and certified by the county clerk as sufficient not later than the second Tuesday in August prior to a general election to be eligible for placement of the question before the voters.
  4. Notwithstanding subsections (1), (2), and (3) of this section, any ordinance, resolution or order adopted by the legislative body of any city or the fiscal court of any county pertaining to retail sales and activities on Sunday shall be subject to the following limitations:
    1. No employer shall require as a condition of employment that any employee work on Sunday or on any other day of the week which any such employee may conscientiously wish to observe as a religious Sabbath.
    2. No employer shall in any way discriminate in the hiring or retaining of employees between those who designate a Sabbath as their day of rest and those who do not make such designation, provided, however, that the payment of premium or overtime wage rates for Sunday employment shall not be deemed discriminatory.
    3. No person permitted, under the provisions of this section, to engage in a retail business on Sunday shall be open to the public between the hours of 6 a.m. and noon on any Sunday.
    4. Every employer engaged in retail sales on Sunday shall allow each person employed by him in connection with such business or service at least twenty-four (24) consecutive hours of rest in each calendar week in addition to the regular periods of rest normally allowed or legally required in each working day.
    5. No business shall be required to be open on Sunday as part of a lease agreement, franchise agreement or any other contractual arrangement. The provisions of this subsection shall not apply to any lease agreement, franchise agreement or any other contractual arrangement entered into before July 15, 1980.

History. Enact. Acts 1972, ch. 18, § 2; 1980, ch. 142, § 1, effective January 1, 1980; 1982, ch. 360, § 85, effective July 15, 1982; 1996, ch. 195, § 70, effective July 15, 1996.

NOTES TO DECISIONS

Cited in:

Taylor Drug Stores, Inc. v. Associated Dry Goods Corp., 560 F.2d 211, 1977 U.S. App. LEXIS 12031 (6th Cir. 1977).

Opinions of Attorney General.

A city may adopt an ordinance authorizing the operation of a pool or billiard hall on Sunday subject to the provisions of subsection (3) (c) (now (4)(c)) of this section. OAG 72-577 .

Under the regulatory authority of this section and KRS 436.160 a city may, subject to the restrictions in subsection (1) of this section, establish reasonable hours during which the applicable establishment may remain open on Sunday. OAG 74-533 .

The repeal of the statutory prohibition on retail sales on Sunday did not authorize the operation of a pool hall but merely gave a city or county the authority to permit such an operation. OAG 75-211 .

A pool hall may not operate on Sunday unless the local legislative body has adopted an ordinance authorizing such an operation subject to the provisions of subsection (3) of this section. OAG 75-211 .

The playing of a game of pool does not constitute a retail sale and thus a local ordinance authorizing retail sales on Sunday does not authorize the operation of a pool hall. OAG 75-211 .

Under an appropriate city ordinance, an amusement establishment containing various coin-operated machines could remain open on Sunday. OAG 77-93 .

Any fiscal court in Kentucky can enact an ordinance pursuant to subsection (2) of this section permitting certain retail activities on Sunday. OAG 77-762 .

While a city can no longer utilize the provisions of the Sunday Closing Law under KRS 436.160 and this section to prohibit a pool hall from operating on Sunday if that establishment is routinely operated for a substantial period of time each and every day of the week and if each of the employees of that establishment is allowed one-full day off during each calendar week, the city, under its police powers to protect the public moral and the general welfare of its citizens pursuant to KRS 82.082 , may enact reasonable ordinances to regulate the operation, as to the hours of operation and location, of pool halls within the city limits. OAG 81-298 .

This section relates specifically to retail sales and activities, but a private manufacturing facility or business would not be regulated by this statute as it does not meet the definition of retail sales and activities, and to do so would be to stretch the definition beyond its logical intent; however, private manufacturing facilities and businesses are subject to the provisions of KRS 436.160 . OAG 95-38 .

436.170. Exhibiting or using studhorse, jack or bull near place of worship, residence or school. [Repealed.]

Compiler’s Notes.

This section (1329) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.060 , 525.150 .

436.180. Cruelty to animals. [Repealed.]

Compiler’s Notes.

This section (1246-1: Acts 1966, ch. 215, § 8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.130 .

436.185. Exhibition of walking horse where the horse’s front legs or hoofs show evidence of burns, drugs, lacerations or any pain inflicting device.

    1. The term “walking horse” as used in this section shall be construed to include only that breed of horses known as walking horses. (1) (a) The term “walking horse” as used in this section shall be construed to include only that breed of horses known as walking horses.
    2. The term “handler” as used in this section shall be construed to mean that person or persons who are in charge of grooming, preparing and readying said horse for competition.
  1. No walking horse shall be permitted to compete or exhibit in any exhibition or fair either for profit or pleasure, if said horse’s front legs or hoofs show evidence of burns, drugs, lacerations, any sharp pointed instrument, or any pain inflicting device.
  2. It shall be the duty of the assigned ringmaster in charge of any such exhibition or competition to properly inspect the front legs and hoofs of each entry in each class or event. Said inspection shall be for the purpose of determining whether there is any evidence of burns, drugs, lacerations, any sharp pointed instrument, or any pain inflicting device appearing on said animal.
  3. If any such evidence appears to the satisfaction of the ringmaster, he shall immediately bar said horse from competition, and notify the sheriff of said county of said violation. The handler of said horse shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) or imprisoned for ten (10) days or both. For the second and each subsequent offense he shall be imprisoned for thirty (30) days.
  4. Any ringmaster who fails to perform these duties, and permits the commission of any of the offenses stated in subsection (2), shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) for each offense allowed.
  5. This section shall in no wise repeal any laws of the Commonwealth of Kentucky on the subject of cruelty to animals and shall be construed by the courts as supplementary thereto.

History. Enact. Acts 1956, ch. 245, §§ 1 to 6, effective May 18, 1956.

Research References and Practice Aids

Cross-References.

Cruelty to animals, KRS 525.125 , 525.130 .

436.190. Dog fights and chicken fights. [Repealed.]

Compiler’s Notes.

This section (1344) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.130 .

436.200. Gambling in general. [Repealed.]

Compiler’s Notes.

This section (1977) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.210. Common gambler. [Repealed.]

Compiler’s Notes.

This section (1971) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.220. Gambler may be required to give surety for good behavior. [Repealed.]

Compiler’s Notes.

This section (1970) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.230. Operating gambling machine, game or contrivance — Pools at race tracks and pinball machines exempted. [Repealed.]

Compiler’s Notes.

This section (1960, 1961: Acts 1950, ch. 145; 1966, ch. 5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.020 , 528.030 .

436.240. Permitting operation of gambling device on premises. [Repealed.]

Compiler’s Notes.

This section (1967) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 , 528.070 .

436.250. Permitting gambling on premises. [Repealed.]

Compiler’s Notes.

This section (1978) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 , 528.070 .

436.260. Persuading another to visit gambling place — Liability to him and his creditors. [Repealed.]

Compiler’s Notes.

This section (1969) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 .

436.270. Playing at gambling device. [Repealed.]

Compiler’s Notes.

This section (1968) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.280. Gambling implements to be seized and destroyed. [Repealed.]

Compiler’s Notes.

This section (1962) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.100 .

436.290. Search for gambling tables. [Repealed.]

Compiler’s Notes.

This section (1974) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.300. Betting on billiards or pool. [Repealed.]

Compiler’s Notes.

This section (1368, 1979) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.310. Permitting betting on billiards or pool. [Repealed.]

Compiler’s Notes.

This section (1368, 1972, 1979) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 , 528.070 .

436.320. Minor to furnish identification to play billiards or pool — Owner of table to supply blank cards.

No person owning or controlling a billiard or pool table shall permit, for compensation or reward, any minor under eighteen (18) years of age to play any game on the table, unless such minor shall have first displayed an identification card containing his name, age, photograph, and the signature of his parents or guardian. The minor shall keep such identification card on his person, and it shall be subject to inspection at any time by any peace officer. The person owning or controlling such billiard or pool table shall keep and maintain a registration book in which each minor shall sign. The person owning or controlling such billiard or pool table shall supply a blank identification card to each parent or guardian who makes request for same. Any person who violates this section shall be fined not less than ten ($10) nor more than one hundred dollars ($100) for each offense.

History. 1972: amend. Acts 1946, ch. 71, § 1; 1954, ch. 232, § 1, effective June 17, 1954.

NOTES TO DECISIONS

1.Pool Table.

Within the meaning of this section, an ordinary pool table is similar to a pigeon-hole table, and embraces it therein, the tables resembling in general the same characteristics, and game being played alike. Commonwealth v. Nance, 158 Ky. 444 , 165 S.W. 423, 1914 Ky. LEXIS 637 ( Ky. 1914 ).

2.Liability for Agent.

The owner of a poolroom is liable for the acts of his agent to whom he had entrusted the operation of his business in permitting minor to play without written consent of his parent. Dezarn v. Commonwealth, 195 Ky. 686 , 243 S.W. 921, 1922 Ky. LEXIS 391 ( Ky. 1922 ).

3.Forged Consent.

Defendant, who in good faith relied on a forged written consent of minor’s parent, cannot be convicted under the statute. Justice v. Commonwealth, 213 Ky. 617 , 281 S.W. 803, 1926 Ky. LEXIS 580 ( Ky. 1926 ).

4.Knowledge.

The owner or controller of the table must know the person playing is a minor before he is guilty of an offense under this statute. Commonwealth v. Wills, 121 Ky. 103 , 89 S.W. 144, 28 Ky. L. Rptr. 77 , 1905 Ky. LEXIS 194 ( Ky. 1905 ).

5.Indictment.

An indictment practically following the language of this section is sufficient. Commonwealth v. Wills, 82 S.W. 236, 26 Ky. L. Rptr. 515 , 1904 Ky. LEXIS 347 (Ky. Ct. App. 1904).

Cited in:

Hardin v. Commonwealth, 301 Ky. 337 , 190 S.W.2d 1021 (1945).

Opinions of Attorney General.

This section does not grant an absolute right to engage in the activity of playing pool, and additional restrictions or regulations may be imposed by a municipality acting under the specific power to regulate the activity conferred by subsections (1) and (3) of KRS 86.120 (repealed). OAG 67-74 .

An ordinance prohibiting minors under 18 from entering a pool hall at any time is in conflict with this section and is invalid. OAG 70-255 .

Research References and Practice Aids

Cross-References.

Unlawful transactions with minors, KRS 530.070 .

436.330. Betting on election. [Repealed.]

Compiler’s Notes.

This section (1975) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.340. Limitation of actions under KRS 436.200 to 436.330. [Repealed.]

Compiler’s Notes.

This section (1980) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 500.050 .

436.350. Peace officer to arrest person operating gambling machine, game or contrivance. [Repealed.]

Compiler’s Notes.

This section (1963, 1964) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.360. Lotteries and gift enterprises — “Chain” merchandising — Injunctive relief — Civil penalties. [Repealed.]

Compiler’s Notes.

This section (2573: Acts 1944, ch. 173, § 23; 1966, ch. 218) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.020 , 528.050 , 528.060 .

436.370. Permitting premises to be used for lottery or gift enterprise. [Repealed.]

Compiler’s Notes.

This section (2574) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 , 528.070 .

436.380. Procuring lottery ticket. [Repealed.]

Compiler’s Notes.

This section (2575) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.390. Prohibition of fictitious lotteries. [Repealed.]

Compiler’s Notes.

This section (2576) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.400. Buyer of lottery ticket may testify against seller. [Repealed.]

Compiler’s Notes.

This section (2579) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 436.510 .

436.410. Indictment in lottery cases. [Repealed.]

Compiler’s Notes.

This section (2577, 2580) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.420. Advertising lotteries in newspapers and magazines. [Repealed.]

Compiler’s Notes.

This section (1314, 1316) was repealed by Acts 1988 (Ex. Sess.), ch. 1, § 31, effective December 15, 1988.

436.430. Selling paper containing lottery advertisement. [Repealed.]

Compiler’s Notes.

This section (1315, 1317) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 .

436.440. Keeping or leasing premises where bets are placed on races or other contests. [Repealed.]

Compiler’s Notes.

This section (3914b-1, 3914b-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 , 528.070 .

436.450. Acting as agent or employe of another in keeping premises where bets are placed on races or other contests. [Repealed.]

Compiler’s Notes.

This section (3914b-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 .

436.460. Assembling on premises where bets are placed on races or other contests. [Repealed.]

Compiler’s Notes.

This section (3914b-4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.030 .

436.470. Peace officer to suppress places where bets are placed on races or other contests. [Repealed.]

Compiler’s Notes.

This section (3914b-5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.480. Pari-mutuel wagering exempt from KRS Ch. 528.

KRS Chapter 528 shall not apply to pari-mutuel wagering authorized under the provisions of KRS Chapter 230.

History. 3914b-6: amend. Acts 1974, ch. 406, § 327; 1976, ch. 183, § 7.

NOTES TO DECISIONS

1.Constitutionality.

Betting on horse races by pari-mutuel system does not constitute a lottery within Constitution; and statutes excepting such races so conducted are constitutional. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

2.Application.

The exemptions provided for in this section apply to regularly organized race tracks and enclosures and wagers therein for horse races only, and do not apply to tracks for dog races. Erlanger Kennel Club v. Daugherty, 213 Ky. 648 , 281 S.W. 826, 1926 Ky. LEXIS 588 ( Ky. 1926 ), aff'd, 275 U.S. 509, 48 S. Ct. 158, 72 L. Ed. 398, 1927 U.S. LEXIS 341 (U.S. 1927).

In a case dealing with pari-mutuel wagering on historic horse racing, further proceedings in the trial court were required to determine whether the licensed operation of wagering on historical racing runs afoul of the Penal Code’s gambling provisions. Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ).

Because the Supreme Court held that the Exacta system does not create a wagering pool among patrons such that they are wagering among themselves as required for pari-mutuel wagering, the trial court misapplied the applicable regulation as a matter of law. The trial court erred in concluding that pari-mutuel wagering does not require patrons to wager on the same horse races, nor does it require reciprocity among patrons. Family Trust Found. of Ky., Inc. v. Ky. Horse Racing Comm'n, 620 S.W.3d 595, 2020 Ky. LEXIS 302 ( Ky. 2020 ).

Cited in:

State Racing Com. v. Latonia Agricultural Ass'n, 136 Ky. 173 , 123 S.W. 681, 1909 Ky. LEXIS 466 ( Ky. 1909 ); Goose v. Commonwealth, 305 Ky. 644 , 205 S.W.2d 326, 1947 Ky. LEXIS 893 ( Ky. 1947 ); Hargett v. Kentucky State Fair Bd., 309 Ky. 132 , 216 S.W.2d 912, 1949 Ky. LEXIS 647 ( Ky. 1949 ).

436.490. Betting on or transmitting bets on horse races other than authorized Kentucky races. [Repealed.]

Compiler’s Notes.

This section (1328a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 528.020 , 528.030 .

436.500. Betting on boxing or wrestling match. [Repealed.]

Compiler’s Notes.

This section (1286) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.505. Bribing or attempting to bribe participants in professional or amateur sports events. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 1, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 518.040 .

436.506. Participant in sports event soliciting or accepting bribe. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 1, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 518.050 .

436.510. Witnesses in investigation or prosecution for gambling.

  1. In any prosecution or any investigation by an examining court or grand jury of gambling violations, it shall be no exemption for a witness that his testimony may incriminate himself.
  2. It shall be no exemption for the buyer of a lottery ticket, in any prosecution against the seller of a lottery ticket, that his testimony may incriminate himself.
  3. No testimony given in the proceedings stated in subsections (1) and (2) of this section shall be used against the testifying witness in any prosecution except for false swearing.
  4. Except as provided in subsection (3) of this section, a witness testifying in any prosecution against the seller of a lottery ticket, shall be discharged from all liability for any offense necessarily disclosed in his testimony.
  5. A witness testifying in any prosecution for gambling shall be discharged from all liability for gambling disclosed in his testimony.
  6. No person against whom a witness testifies in any prosecution for gambling shall testify as to any gambling by the witness.

History. 1328a, 1973, 2579: amend. Acts 1974, ch. 406, § 334.

NOTES TO DECISIONS

1.Construction.

A person who gives self-incriminating evidence is protected by this section. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ).

The exemption in this section is confined to any prosecution or preliminary examination or inquiry conducted by the Commonwealth. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ).

2.Application.

This section applies to a prosecution for a penalty against betting on an election. Commonwealth v. Collier, 181 Ky. 319 , 204 S.W. 74, 1918 Ky. LEXIS 508 ( Ky. 1918 ).

The provisions of this section do not protect a policeman testifying before a grand jury regarding gaming, and prevent his discharge, he having previously made admissions regarding gaming to chief of police. Bromfield v. Board of Comm'rs, 233 Ky. 250 , 25 S.W.2d 393, 1930 Ky. LEXIS 537 ( Ky. 1930 ).

One voluntarily testifying before an inquisitorial body is not entitled to immunity and an indictment returned against him is not invalidated by reason thereof. Taylor v. Commonwealth, 274 Ky. 51 , 118 S.W.2d 140, 1938 Ky. LEXIS 227 ( Ky. 1938 ).

3.Buyer of Lottery Ticket.

There is no exemption to the buyer of a lottery ticket that his testimony may incriminate himself, but no such testimony given by such witness shall be used against him in any prosecution except perjury. Boyd v. Commonwealth, 141 Ky. 247 , 132 S.W. 423, 1910 Ky. LEXIS 438 ( Ky. 1910 ).

4.Discharge for Gambling Disclosed in Own Testimony.

This section exempting from liability for gaming disclosed by a witness’ own testimony in a prosecution against another, gives immunity to a witness testifying before a grand jury. Bentler v. Commonwealth, 143 Ky. 503 , 136 S.W. 896, 1911 Ky. LEXIS 435 ( Ky. 1911 ).

In prosecution for setting up and operating a game of chance and aiding others in operating the game, introduction of those so aided, as witnesses against defendant, would have the effect of exempting them from prosecution with defendant under joint indictment. Freeman v. Commonwealth, 305 Ky. 221 , 203 S.W.2d 16, 1947 Ky. LEXIS 777 ( Ky. 1947 ).

5.Testimony by Person Against Whom Witness Testified.

It is improper in a prosecution for gaming to receive testimony against accused by one against whom he testified for gaming. Bentler v. Commonwealth, 143 Ky. 503 , 136 S.W. 896, 1911 Ky. LEXIS 435 ( Ky. 1911 ).

Cited in:

Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ), overruled, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), overruled in part, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ).

Research References and Practice Aids

Cross-References.

Gambling offenses under Penal Code, KRS 528.010 to 528.100 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Gaming Law, § 351.00.

436.520. Vagrancy. [Repealed.]

Compiler’s Notes.

This section (4758-1, 4758-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.530. Peace officers to disperse vagrants. [Repealed.]

Compiler’s Notes.

This section (4758-4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.540. Legislative policy as to comic books declared. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 244, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.010 to 531.080 .

436.550. Publication and distribution of comic books devoted to accounts of methods of crime, terror, brutality or illicit sex. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 244, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.010 to 531.080 .

436.560. Selling, lending, showing, advertising for sale or distribution to persons under the age of eighteen years of comic books described under KRS 436.550 — Presumptive evidence. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 244, § 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.010 to 531.080 .

436.570. Actions to enjoin the publication, distribution or sale of articles prohibited by KRS 436.540 to 436.560. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 244, § 4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.010 to 531.080 .

436.575. Motion picture rating required to be included in any motion picture advertising placed or accepted.

  1. No person shall advertise any motion picture in any media, including but not limited to newspapers, magazines, radio, television, or billboards, without including the rating assigned to that picture by the Motion Picture Coding Association of America or its successor, if a rating has been assigned to the said motion picture.
  2. No person shall accept for publication or publish or air any motion picture advertisement which does not carry a rating as assigned by the Motion Picture Coding Association of America, unless such motion picture has not been rated by the said association or its successor.
  3. Any person who violates any of the provisions of this section shall be fined not less than $50 nor more than $500.

History. Enact. Acts 1972, ch. 351, § 1.

Research References and Practice Aids

Cross-References.

Advertising obscene material, KRS 531.050 .

436.580. Tie-in sales of publications which may not lawfully be sold. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 103, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 531.060 .

436.590. Definitions in KRS 436.180 and 436.590 to 436.600. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 215, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

436.593. Injuring, poisoning or killing domestic animals. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 215, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.130 .

436.595. Stealing domestic animal — Possession of stolen animal. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 215, § 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.030 , 514.110 .

436.597. Abandonment of dog or cat. [Repealed.]

Compiler’s Notes.

This section (Acts 1966, ch. 215, § 6) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.130 .

436.600. Dyeing or selling dyed baby fowl or rabbits.

No person shall sell, exchange, offer to sell or exchange, display, or possess living baby chicks, ducklings, or other fowl or rabbits which have been dyed or colored; nor dye or color any baby chicks, ducklings, or other fowl or rabbits; nor sell, exchange, offer to sell or exchange or to give away baby chicks, ducklings, or other fowl or rabbits, under two (2) months of age in any quantity less than six (6), except that any rabbit weighing three (3) pounds or more may be sold at an age of six (6) weeks. Any person who violates this section shall be fined not less than $100 nor more than $500.

History. Enact. Acts 1966, ch. 215, § 5; 1972, ch. 374, § 1.

Research References and Practice Aids

Cross-References.

Cruelty to animals, KRS 525.125 , 525.130 .

436.605. Animal control officers and humane agents have powers of peace officers, except power of arrest — Search warrants — Execution of search warrants — Arrest by peace officer.

  1. Animal control officers and officers and agents of humane societies who are employed by, appointed by, or have contracted with a city, county, urban-county, charter county, or consolidated local government to provide animal sheltering or animal control services shall have the powers of peace officers, except for the power of arrest, for the purpose of enforcing the provisions of the Kentucky Revised Statutes relating to cruelty, mistreatment, sexual crimes against, or torture of animals, provided they possess the qualifications required under KRS 61.300 .
  2. When any peace officer, animal control officer, or any officer or agent of any society or association for the prevention of cruelty to animals duly incorporated under the laws of this Commonwealth who is employed by, appointed by, or has contracted with a city, county, urban-county, charter county, or consolidated local government to provide animal sheltering or animal control services makes an oath before any judge of a District Court that he has reasons to believe or does believe that an act of cruelty, mistreatment, sexual crimes against, or torture of animals is being committed in a building, barn, or other enclosure, the judge shall issue a search warrant directed to the peace officer, animal control officer, or officer or agent of the society or association for the prevention of cruelty to animals to search the premises. If a peace officer finds that an act of cruelty, mistreatment, sexual crimes against, or torture of animals is being perpetrated, the offender or offenders shall be immediately arrested by the peace officer and brought before the court for trial. If an animal control officer or an officer or agent of a society or association for the prevention of cruelty to animals finds that an act of cruelty, mistreatment, sexual crimes against, or torture of animals is being perpetrated, the officer or agent shall summon a peace officer to arrest the offender or offenders and bring them before the court for trial.

History. Enact. Acts 1966, ch. 215, §§ 4, 7; 1974, ch. 406, § 328; 1976 (Ex. Sess.), ch. 14, § 444, effective January 1, 1978; 2004, ch. 189, § 29, effective July 13, 2004; 2019 ch. 184, § 4, effective June 27, 2019.

NOTES TO DECISIONS

1.Warrant.

Presence of civilians was not improper and did not violate the scope of a warrant because given the totality of the circumstances, the presence of civilian personnel was not gratuitous but it was reasonably necessary based on the scope of the warrant and the large number of animals present, and it did not form a basis for excluding the resultant evidence; given the number of dogs involved, and officer required assistance to assess the site and determine the dogs’ condition. Blevins v. Commonwealth, 435 S.W.3d 637, 2014 Ky. App. LEXIS 107 (Ky. Ct. App. 2014).

Opinions of Attorney General.

Investigators employed by the Kentucky State Humane Federation who were sworn in as peace officers must serve in the county of their appointment and did not have statewide authority to enforce the former statutes relating to cruelty and mistreatment of animals which are now repealed. OAG 67-484 .

A humane society is a private nonprofit corporation whose agents have powers of peace officers for the purpose of enforcing Kentucky law relating to cruelty to animals, provided such agents possess the qualifications required of KRS 61.300 . OAG 78-516 .

All humane society agents must actually qualify as peace officers by complying with the provisions of KRS 61.300 before they legally possess the powers of peace officers. OAG 79-400 .

An agent of the humane society, acting as the city’s animal control officer, who has actually qualified as a nonelective peace officer by complying with the requirements of KRS 61.300 and who has the powers of a peace officer only for the purpose of enforcing the statutory provisions relating to cruelty and mistreatment of animals, is not required to be bonded. OAG 79-400 .

An agent of the humane society should be appointed by written authority of the society and possess proper identification, and dismissal of an agent by the society not only nullifies the agent’s right to serve as an officer of the society but also cancels his authority to serve as a peace officer. OAG 79-400 .

Research References and Practice Aids

Cross-References.

Cruelty to animals, KRS 525.125 , 525.130 .

436.610. Confiscation of animals on premises where violations of KRS 525.125 and 525.130 occur.

All animals of the same species, which are on the property when an animal is caused to fight for pleasure or profit, in violation of the provisions of KRS 525.125 and 525.130 , shall be confiscated and turned over to the county animal control officer employed, appointed, or contracted with as provided by KRS 258.195 , if there are reasonable grounds to believe that the animals were on the property for the purpose of fighting.

History. Enact. Acts 1984, ch. 67, § 3, effective July 13, 1984; 2004, ch. 189, § 30, effective July 13, 2004.

CHAPTER 437 Offenses Against Public Peace — Conspiracies

437.010. Breach of peace, riot, rout, unlawful assembly, affray. [Repealed.]

Compiler’s Notes.

This section (1268) was repealed by Acts 1968, ch. 105, § 3. For present law, see KRS 525.010 to KRS 525.060 .

437.011. Definitions for KRS 437.011 to 437.018. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.010 .

437.012. “Riot” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.010 to 525.030 .

437.013. “Inciting to riot” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.040 .

437.014. “Failure to disperse” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 5) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 525.160 .

437.015. “Unlawful assembly” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 6) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.050 .

437.016. “Disorderly conduct” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 7) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.060 , 525.150 .

437.017. “Loitering” defined — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 8) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.090 .

437.018. False reporting to law enforcement authorities. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 105, § 9) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.040 .

437.020. Use of abusive language to provoke assault. [Repealed.]

Compiler’s Notes.

This section (1271) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.070 .

437.030. Challenge to duel — Accepting and delivering challenge.

Any person who, in this state, challenges another to fight with any deadly weapon, in or out of this state, and any person who accepts the challenge, shall be fined five hundred dollars ($500) and imprisoned for not less than six (6) nor more than twelve (12) months. Any person who knowingly carries or delivers such a challenge in this state, or consents in this state to be a second to either party shall be fined one hundred dollars ($100) and imprisoned for thirty (30) days.

History. 1269.

NOTES TO DECISIONS

1.Requirements.

Accused who while partly intoxicated went up to another, drawing, or partly drawing a gun, and said “God damn you, you started to draw a gun this morning, now God damn you, draw it” was not guilty under this section, since a duel is a combat with a deadly weapon fought under prescribed rules according to precedent formal agreement without sudden heat and passion. Ward v. Commonwealth, 132 Ky. 636 , 116 S.W. 786, 1909 Ky. LEXIS 135 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

Challenge, giving, accepting or carrying of disqualifies from office, Const., § 239.

Challenge, sender, accepter or carrier of, forfeiture and disqualification from office, KRS 61.100 .

437.040. Disturbing church, school, public assemblage. [Repealed.]

Compiler’s Notes.

This section (1267) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.150 .

437.050. Attempting to interrupt or injure public speaker. [Repealed.]

Compiler’s Notes.

This section (1267a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 525.150 .

437.060. Use of reptiles in religious services.

Any person who displays, handles or uses any kind of reptile in connection with any religious service or gathering shall be fined not less than fifty dollars ($50) nor more than one hundred dollars ($100).

History. 1267a-1.

NOTES TO DECISIONS

1.Constitutionality.

This section does not infringe upon freedom of religion, but is a constitutional exercise of state police power for the protection of the public. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

2.Evidence.

Refusal of trial court to admit evidence as to absence of coercion or disturbance during religious meetings at which snakes were displayed and handled, and to permit scriptural passages upon which beliefs and practices were based to be read to the jury, was not error since neither breach of the peace nor the intent of the violator is an element of the offense denounced. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

437.070. Arrest of clergyman while performing religious worship. [Repealed.]

Compiler’s Notes.

This section (1318) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

437.080. Maintaining refreshment stand near association, camp or arbor meeting. [Repealed.]

Compiler’s Notes.

This section (1267b-1, 1267b-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

437.090. Street car passenger causing disturbance, refusing to pay fare. [Repealed.]

Compiler’s Notes.

This section (1342a) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 514.060 , 525.060 .

437.095. Shooting fireworks in public places prohibited. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 167, § 1) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980.

437.100. Presentation of play based on master-slave antagonism or exciting race prejudice. [Repealed.]

Compiler’s Notes.

This section (1376c-1, 1376c-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

437.110. Conspiracy — Banding together for unlawful purpose. [Repealed.]

Compiler’s Notes.

This section (1241a-1, 1241a-2: Acts 1948, ch. 22; 1962, ch. 217) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.040 to 506.070 .

437.120. Penalty if injury or death results from conspiracy — Absence of malice no mitigation — Civil liability. [Repealed.]

Compiler’s Notes.

This section (1241a-3: Acts 1948, ch. 22, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.040 , 506.050 .

437.130. Governor and county judge may offer rewards. [Repealed.]

Compiler’s Notes.

This section (1241a-5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

437.140. Witness in prosecution of criminal conspirators not to claim exemption.

In any prosecution for criminal conspiracy it shall be no exemption for a witness that his testimony may incriminate himself. No testimony given by the witness shall be used against him in any prosecution except for perjury, and he shall be discharged from all liability for a violation of any criminal conspiracy law necessarily disclosed in his testimony.

History. 1241a-7: amend. Acts 1974, ch. 406, § 319.

NOTES TO DECISIONS

Cited in:

Taylor v. Commonwealth, 274 Ky. 51 , 118 S.W.2d 140, 1938 Ky. LEXIS 227 ( Ky. 1938 ); Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ).

Research References and Practice Aids

Cross-References.

Conspiracy provisions in Penal Code, KRS 506.040 to 506.070 .

437.150. Conspiracy to carry on false prosecution. [Repealed.]

Compiler’s Notes.

This section (1341) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 506.040 , 522.020 .

Protection of Animal Facilities

437.410. Definitions.

As used in KRS 437.410 to 437.429 , unless the context otherwise requires:

  1. “Animal” means any warm or cold blooded animal used in food or fiber production, agriculture, research, testing, or education, including poultry, fish, and insects;
  2. “Animal facility” means any vehicle, building, structure, or premises, where an animal or animal records are kept, handled, housed, exhibited, bred, or offered for sale;
  3. “Consent” means assent in fact, whether express or apparent;
  4. “Deprive” means to withhold an animal or other property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the animal or property is lost to the owner, to restore the animal or other property only upon payment of reward or other compensation, or to dispose of an animal or other property in a manner that makes recovery of the animal or property by the owner unlikely;
  5. “Effective consent” means consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threat, false pretenses, or fraud, if given by a person the actor knows is not legally authorized to act for the owner, if given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions, or if given solely to detect the commission of an offense;
  6. “Owner” means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;
  7. “Person” means any individual, corporation, association, nonprofit corporation, joint stock company, firm, trust, partnership, two (2) or more persons having a joint or common interest, or other legal entity;
  8. “Possession” means actual care, custody, control, or management.

History. Enact. Acts 1990, ch. 61, § 1, effective July 13, 1990.

437.415. Findings of the General Assembly.

The General Assembly finds that the caring, rearing, feeding, breeding, and sale of animals and animal products, and the use of animals in research, testing, and education, represents vital segments of the economy of the state, that producers and others involved in the production and sale of animals and animal products and the use of animals in research and education have a vested interest in protecting the health and welfare of animals and the physical and intellectual property rights which they have in animals, and that there has been an increasing number of illegal acts committed against farm animal and research facilities. The General Assembly further finds that these illegal acts threaten the production of agricultural products, and jeopardize crucial scientific, biomedical, or agricultural research, and finally, the General Assembly finds that these illegal acts threaten the public safety by exposing communities to contagious diseases and damage research.

History. Enact. Acts 1990, ch. 61, § 2, effective July 13, 1990.

437.420. Offenses.

  1. A person commits an offense if, without the effective consent of the owner, the person acquires or otherwise exercises control over an animal facility, an animal from an animal facility, or other property from an animal facility, with the intent to deprive the owner of the facility, animal, or property and to disrupt or damage the enterprise conducted at the animal facility.
  2. A person commits an offense if, without the effective consent of the owner and with the intent to disrupt or damage the enterprise conducted at the animal facility, the person damages or destroys an animal facility or any animal or property in or on an animal facility.
  3. A person commits an offense if, without the effective consent of the owner and with the intent to disrupt or damage the enterprise conducted at the animal facility, the person enters an animal facility, not then open to the public, with the intent to commit an act prohibited by this section, remains concealed, with the intent to commit an act prohibited by this section, in an animal facility, or enters an animal facility and commits or attempts to commit an act prohibited by this section.
  4. A person commits an offense if, without the effective consent of the owner and with the intent to disrupt or damage the enterprise conducted at the animal facility, the person enters or remains on an animal facility, and the person had notice that the entry was forbidden, or received notice to depart but failed to do so. For purposes of this subsection “notice” shall mean oral or written communication by the owner or someone with apparent authority to act for the owner, fencing or other enclosure obviously designed to exclude intruders or to contain animals, or a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.

History. Enact. Acts 1990, ch. 61, § 3, effective July 13, 1990.

437.429. Penalties.

  1. Any person who violates any provision of KRS 437.410 to 437.420 shall be subject to a fine of not more than five thousand dollars ($5,000) or imprisoned for not less than six (6) months but not more than one (1) year, or both, for each violation.
  2. Any persons convicted of violating any provision of KRS 437.410 to 437.420 shall be ordered jointly and severally to make restitution to the animal facility in the full amount of the reasonable cost of replacing materials, data, equipment or animals, and records that may have been damaged or cannot be returned, and the reasonable cost of repeating any experimentation that may have been interrupted or invalidated as a result of the violation.
  3. Nothing in KRS 437.410 to 437.420 shall be construed to affect any other rights of a person who has been damaged by reason of a violation of KRS 437.410 to 437.420 .

History. Enact. Acts 1990, ch. 61, § 4, effective July 13, 1990.

CHAPTER 438 Offenses Against Public Health and Safety

438.010. Wilfully spreading smallpox. [Repealed.]

Compiler’s Notes.

This section (4607, 4617, 4618) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.020. Person under eighteen not to smoke cigarettes. [Repealed.]

Compiler’s Notes.

This section (1277a-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.030. Supplying child under eighteen with cigarettes — Causing child to smoke. [Repealed.]

Compiler’s Notes.

This section (1277, 1277a-1, 1277a-5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.040. Peace officer to find out from persons under eighteen where they obtained cigarettes. [Repealed.]

Compiler’s Notes.

This section (1277a-3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.045. Sale of tobacco products to persons under age 18 prohibited [Renumbered].

Compiler’s Notes.

This section was amended by Acts 1994, ch. 480, § 9 and renumbered by the Reviser of Statutes pursuant to KRS 7.136(1) as KRS 438.310 .

438.047. Prohibition against certain billboard advertising of tobacco products within five hundred feet of school — Fine.

  1. No cigarette or tobacco products advertising shall be posted on a billboard with display space larger than fifty (50) square feet located within five hundred (500) feet of any elementary or secondary school building or adjacent school-owned property.
  2. Any person who violates the provisions of this section shall be fined not less than one hundred dollars ($100) for each offense.

History. Enact. Acts 1992, ch. 164, § 2, effective July 14, 1992.

438.050. Use of alternative nicotine products, tobacco products, and vapor products on school premises — Exception.

  1. Any person, except adult employees of the school system who smoke in a room on the school premises designated by the superintendent or principal for the purpose, who uses alternative nicotine products, tobacco products, or vapor products in any school building or any part of any building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes, except in areas in secondary schools designated and supervised by the superintendent or principal for the purpose, shall be fined not less than one dollar ($1) nor more than five dollars ($5).
  2. The exception granted for smoking areas designated by the superintendent or principal shall extend to all schools.

History. 1277a-4: amend. Acts 1972, ch. 19, § 1; 1976, ch. 72, § 1; 1988, ch. 435, § 2, effective July 15, 1988; 2019 ch. 198, § 2, effective June 27, 2019.

Opinions of Attorney General.

This is a penal statute which must be literally and strictly construed so there would be no violation if a person smokes a cigar or pipe but it would be a violation for anyone to smoke cigarettes in a school corridor or auditorium while children are present for lawful purposes, regardless of whether it is during or after school hours, or for a spectator to smoke cigarettes at a school football game being played on school grounds, but a person may smoke cigarettes during a summer tennis or baseball program conducted by a local recreation board and where no children are assembled. OAG 73-175 .

Violation of this section is a misdemeanor and any peace officer may make an arrest or issue a citation for a misdemeanor committed in his presence or a citizen who witnesses a misdemeanor may go before a judge or magistrate and file a sworn complaint whereupon a warrant will be issued for the arrest of the misdemeanant. OAG 73-175 .

As it is against the law to smoke on school property, cigarettes may not be sold on such property nor may the school designate an area outside building but on school grounds for student smoking. OAG 74-862 .

Every school in the state can have a designated smoking room for the adult employees of the school system pursuant to this section; however, under this section, only secondary schools located in counties containing a city of the first or second class, as set forth in KRS 81.010 , or an urban-county government, can have a designated smoking area for both adults and students; accordingly, a county which does not contain a city of the first or second class or an urban-county government may only designate a smoking room for adult employees of the school system, since designating such an area by regulation for the benefit of non-employee adults and students would violate this section. OAG 81-295 .

The county board of education in a county not containing a first or second class city or an urban-county government has no legal authority to designate a smoking area for non-employee adults or for school students since the geographical scope of this section goes to “any part of any school building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes”; accordingly, this section precludes smoking in a school corridor or auditorium or even at a football game on school grounds while children are present for lawful purposes regardless of whether it is during or after school hours. OAG 81-295 .

This section, as it is written, proscribes only the smoking of tobacco products; however, the board of education, under the authority of KRS 160.290 and KRS 160.340 , may regulate the use of tobacco products including the use of snuff or chewing tobacco in ways other than smoking by its employees, other adults or students. OAG 81-295 .

Under the current statutes, every school may have a designated smoking room for adult employees of the school system, and every secondary school may have a designated smoking area for all individuals, adults and students. OAG 91-119 .

This section does not grant authority to superintendents or principals beyond that authority granted to those officials by the Board, and, as currently written, does not forbid smoking of tobacco products at outdoor athletic events, depending on what smoking areas are to be designated in the schools. OAG 91-137 .

Authority concerning the use of all tobacco products by employees, students and visitors in school buildings, on school grounds or on field trips rests with the local board of education, not with superintendents and principals, unless that authority is delegated to them by the board. OAG 91-137 .

This section dealing with smoking on school premises directly conflicts with KRS 61.165 which requires governmental buildings that have adopted a policy limiting smoking to provide an indoor smoking room. This section controls because it is the more specific statute; therefore, KRS 61.165 , which requires that indoor smoking areas be provided in governmental buildings where smoking is restricted, does not apply to school districts. OAG 94-52 .

Research References and Practice Aids

Kentucky Law Journal.

Taylor, With Temperate Rod: Maintaining Academic Order in Secondary Schools, 58 Ky. L.J. 616 (1970).

438.060. Contaminating watercourse.

  1. Except as provided in subsection (2) of this section any person who places or causes to be placed in any stream, dam, pool or pond any substance that renders the water unfit for use or produces a stench shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100) and imprisoned for not less than thirty (30) days nor more than six (6) months.
  2. Any person who places the carcass of any beast in any watercourse or within twenty-five (25) yards of a watercourse, or casts it into any spring or pond shall be fined not less than five dollars ($5) nor more than twenty dollars ($20) for the first offense and for every subsequent offense not less than twenty dollars ($20) nor more than one hundred dollars ($100).

History. 1253, 1278.

NOTES TO DECISIONS

1.Application.

In the absence of an express statutory exemption, coal mining company is subject to the provisions and penalties of this statute, as principles of public policy are to be determined by legislative action. Commonwealth v. Kenmont Coal Co., 199 Ky. 826 , 251 S.W. 1018, 1923 Ky. LEXIS 940 ( Ky. 1923 ).

2.Common Law.

An indictment for permitting refuse from a distillery to flow into a stream thereby polluting it, is valid under the common law, notwithstanding there is a statutory penalty for same offense. Commonwealth v. Kentucky Distilleries & Warehouse Co., 154 Ky. 787 , 159 S.W. 570, 1913 Ky. LEXIS 164 ( Ky. 1913 ).

3.Jurisdiction.

If pollution in two (2) counties be treated as a single offense, either county had jurisdiction, and where it did not appear on record that defendant had been proceeded against in county where polluted substance was emptied into the stream before action in other county, the latter county had jurisdiction. Commonwealth v. Louisville & N. R. Co., 175 Ky. 267 , 194 S.W. 345, 1917 Ky. LEXIS 326 ( Ky. 1917 ).

Opinions of Attorney General.

KRS 224.01-010 , 224.01-050 to 224.01-070 , 224.10-010 to 224.10-610 , 224.10-630 , 224.12-212, 224.16-050 , 224.16-060 , 224.18-710 to 224.18-785 , 224.20-050 , 224.30-050 , 224.46-012 to 224.46-018 , 224.70-100 to 224.70-130 , 224.73-100 to 224.73-120 are not in conflict with KRS 150.460 and this section. OAG 65-665 .

Research References and Practice Aids

Cross-References.

Civil liability of persons polluting waters, state may sue, KRS 224.01-070 .

Discharging sewage, minerals, oil products or litter into public waters or lakes, KRS 512.070 .

438.065. Advertising or soliciting by practitioner of healing arts — Exceptions.

  1. No person licensed to practice medicine, dentistry, osteopathy, podiatry, optometry, or chiropractic, or any other healing art in this state shall solicit persons to become patients, or advertise by mail, card, newspaper, pamphlet, radio, television, or any other medium, or permit his services to be advertised; provided, however, that such person may publish a brief announcement of the opening of an office or of any change of office location or change of office hours, and may cause to be listed in the telephone directory and classified advertising sections thereof his name, address, type of practice and office hours. Modest signs on the doors, windows, and walls of the licensee’s office or on the building in which he maintains an office setting out his name, professional title in accordance with KRS 311.375 , office hours and address shall not be considered as violations of this subsection.
  2. Each violation of subsection (1) of this section shall be punishable by a fine of not less than two hundred and fifty dollars ($250) nor more than one thousand dollars ($1,000) or by imprisonment for not less than one (1) month nor more than twelve (12) months or both.
  3. Nothing contained herein prohibits the circulation of educational materials, which are not laudatory of the author or any person with whom he is associated in the practice of his profession, and which contain no solicitation of patients for the author or any such associate of the author, which has been approved as to content by the appropriate licensing agency.

History. Enact. Acts 1966, ch. 94, § 1.

Opinions of Attorney General.

This section has a reasonable connection with the public health, safety and welfare and is a valid exercise of the police power of the state. OAG 68-81 .

The use of the terms “general dentistry” or “family dentistry” following the listing of the name of the dentist in a telephone directory is permissible under the terms of this section. OAG 75-348 .

Research References and Practice Aids

Cross-References.

Podiatrists, display of license and advertising by, KRS 311.470 .

438.070. Advertisements of venereal disease treatments. [Repealed.]

Compiler’s Notes.

This section (1376h) was repealed by Acts 1972, ch. 157, § 4.

438.080. Endurance contests. [Repealed.]

Compiler’s Notes.

This section (1376u-1, 1376u-2) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.090. Common drinking cup. [Repealed.]

Compiler’s Notes.

This section (1376e) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.100. Fireworks defined. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 134, § 1; 1968, ch. 185, § 1) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.110. Sale or use of fireworks prohibited — Exceptions for public displays. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 134, § 2; 1968, ch. 185, § 2) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.120. Bond for public display permit. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 134, § 3) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.130. Exempted uses and sales of fireworks. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 134, § 4; 1968, ch. 185, § 3) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.140. Penalty for violating fireworks law. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 134, § 5) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.143. Samples of exempted novelties to be approved by Fire Marshal before sale — Labeling. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 185, § 4) was repealed by Acts 1980, ch. 49, § 22, effective July 15, 1980. For present law, see KRS 227.700 to 227.750 , 227.990 .

438.145. Obstructing fire fighting operations — Penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 106, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 519.020 , 525.060 .

438.150. Abandoned refrigerators, iceboxes and ice chests. [Repealed.]

Compiler’s Notes.

This section (Acts 1954, ch. 44, § 1) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975.

438.160. Definitions for KRS 438.170, 438.180 and 438.190.

  1. “Party line” means a subscriber’s line telephone circuit, consisting of two (2) or more main telephone stations connected therewith, each station with a distinctive ring or telephone number.
  2. “Emergency” means a situation in which property or human life is in jeopardy and the prompt summoning of aid is essential.

History. Enact. Acts 1962, ch. 235, § 1.

NOTES TO DECISIONS

Cited in:

Gross v. Commonwealth, 421 S.W.2d 826, 1967 Ky. LEXIS 75 ( Ky. 1967 ).

438.170. Emergency party line use.

Any person who willfully refuses to yield or surrender the use of a party line to another person for the purpose of permitting such other person to report a fire or summon police, medical or other aid in case of emergency, shall be fined not less than twenty dollars ($20) nor more than five hundred dollars ($500) or imprisoned in the county jail for a period not exceeding ninety (90) days, or both.

History. Enact. Acts 1962, ch. 235, § 2.

NOTES TO DECISIONS

1.Application.

Testimony by person seeking to use the telephone which was corroborated by his daughter and partially corroborated by two (2) other witnesses that the defendant consistently refused to yield the line when told that an ambulance must be called for a critically ill person was sufficient to sustain conviction. Gross v. Commonwealth, 421 S.W.2d 826, 1967 Ky. LEXIS 75 ( Ky. 1967 ).

Research References and Practice Aids

Cross-References.

Eavesdropping, KRS 526.010 to 526.040 , 526.070 .

Harassing communications, KRS 525.080 .

438.180. False representation of emergency.

Any person who asks for or requests the use of a party line on the pretext that an emergency exists, knowing that no emergency in fact exists, shall be fined not less than twenty-five ($25) nor more than one hundred dollars ($100) or imprisoned in the county jail for a period not exceeding ten (10) days or both so fined and imprisoned.

History. Enact. Acts 1962, ch. 235, § 3.

438.190. Warning publication.

After the ninetieth day following June 14, 1962, every telephone directory thereafter published for distribution to the members of the general public shall contain a notice which explains this law, such notice to be printed in type which is no smaller than any other type on the same page and to be preceded by the word “WARNING.” The provisions of this section shall not apply to directories distributed solely for business advertising purposes, commonly known as classified directories.

History. Enact. Acts 1962, ch. 235, § 4.

438.200. False fire or bomb alarm, penalty. [Repealed.]

Compiler’s Notes.

This section (Acts 1968, ch. 47) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 508.080 , 519.040 .

438.210. Interfering with communications.

Any person who willfully and maliciously prevents, obstructs or delays the sending, transmission, conveyance or delivery in this state of any message, communication or report through any telegraph or telephone line, wire or cable shall be fined not less than fifty dollars ($50) nor more than five hundred dollars ($500), or imprisoned for not more than one (1) year, or both.

History. Enact. Acts 1980, ch. 49, § 4, effective July 15, 1980.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Telegraphs and Telephones, § 336.00.

438.220. Transmission of false or fraudulent communications over telegraph or telephone lines — Delay of messages.

Any person who knowingly transmits on or through any telegraph or telephone line in the state, any false communication or intelligence with intention to injure any other person or to speculate on any article of merchandise, commerce or trade, or with intent that another may do so; or any agent, officer or manager of a telegraph or telephone line who, from corrupt or improper motives or willful negligence, withholds the transmission or delivery of messages or intelligence, for which the customary charges have been paid or tendered, shall be fined not less than ten dollars ($10) nor more than five hundred dollars ($500).

History. Enact. Acts 1980, ch. 49, § 12, effective July 15, 1980.

438.230. Use of obscene language or proposals on telephone — Notice of law on telephone books.

Every telephone directory published for distribution to members of the general public shall contain a notice which explains that it is unlawful for any person to make use of telephone facilities or equipment for the purpose of communicating language, suggestions or proposals which are obscene, profane, lewd, lascivious or indecent in a manner reasonably to be expected to annoy, abuse, harass, torment or embarrass another, such notice to be printed in type which is no smaller than the smallest type on the same page, and to be preceded by the word “WARNING.” The provisions of this section shall not apply to directories solely for business advertising purposes, commonly known as classified directories.

History. Enact. Acts 1980, ch. 49, § 13, effective July 15, 1980.

438.240. Abandonment or discard of refrigerator, freezer, icebox or ice chest with door or lid attached — Exception.

  1. Whoever abandons or discards in any place accessible to children any refrigerator, freezer, icebox or ice chest, of a capacity of one and one-half (1-1/2) cubic feet or more, which has an attached lid or door which may be opened or shut, or who, being the owner, occupant, lessee, or manager of the place, knowingly permits an abandoned or discarded refrigerator, freezer, icebox or ice chest to remain there in such condition, is guilty of a Class B misdemeanor.
  2. A refrigerator in use for another purpose shall not be considered as discarded provided it is securely locked to prevent unauthorized entry.

History. Enact. Acts 1988, ch. 228, § 1, effective July 15, 1988.

438.250. Mandatory testing for HIV, hepatitis B and C, and tuberculosis, and other diseases for criminal defendants, inmates, and state patients under specified conditions — Effect of refusal to be tested — Costs.

  1. When a public servant, as defined in KRS 521.010 , a health care professional who is licensed or certified under the laws of the Commonwealth, an employee of the health care professional, an employee of a health care facility that is licensed under the laws of the Commonwealth, or victim of a crime is bitten by, suffers a puncture wound caused by, or is exposed to the blood or body fluids of a criminal defendant, inmate, parolee, probationer, or patient or resident of any health facility owned or operated by the Commonwealth, or the blood or body fluids of a criminal defendant, inmate, parolee, or probationer have come into contact with the skin or unprotected clothing of a public servant during any incident in which the public servant and the criminal defendant, inmate, parolee, or probationer are involved, the criminal defendant, inmate, parolee, or probationer shall be ordered to submit to testing for human immunodeficiency virus (HIV), hepatitis B and C viruses, and any other disease, if testing for that disease is recommended by the most current guidelines of the Centers for Disease Control and Prevention, and if testing for any of these conditions is recommended, then testing will be conducted as recommended by the Centers for Disease Control and Prevention.
  2. The written results of the testing shall be made available to each public servant, victim of the crime, criminal defendant, inmate, parolee, or probationer coming within the purview of subsection (1). However, the results shall not be public records and shall be disclosed to others only on a need-to-know basis. The victim of the crime shall receive written results as provided in KRS 510.320 .
  3. If a criminal defendant, inmate, parolee, or probationer fails or refuses to be tested as ordered, he may be held in criminal contempt. A Circuit or District Judge shall compel the criminal defendant, inmate, parolee, or probationer to undergo the testing required herein if he fails or refuses to do so. Undergoing compulsory testing after a failure or refusal to be tested shall not relieve the criminal defendant, inmate, parolee, or probationer of the liability imposed by this subsection.
  4. The costs of the testing shall be borne by the criminal defendant, inmate, parolee, or probationer unless he is determined unable to pay for the test by a court of competent jurisdiction for criminal defendants and probationers and by the Department of Corrections pursuant to their indigency standards for inmates and parolees, in which case the Commonwealth shall pay for the testing.
  5. The provisions of subsections (1) to (4) of this section shall apply to juveniles falling within any category specified in subsections (1) to (4) of this section as well as to adults.

History. Enact. Acts 1994, ch. 309, § 1, effective July 15, 1994; 1998, ch. 606, § 122, effective July 15, 1998; 2000, ch. 140, § 1, effective July 14, 2000; 2000, ch. 345, § 4, effective July 14, 2000; 2000, ch. 400, § 4, effective July 14, 2000; 2000, ch. 432, § 11, effective July 14, 2000.

Legislative Research Commission Notes.

(7/14/2000). This section was amended by 2000 Ky. Acts chs. 140, 345, 400, and 432, which do not appear to be in conflict and have been codified together.

Personal Emergency Response System Providers

438.280. Definitions for KRS 438.280 to 438.290.

As used in KRS 438.280 to 438.290 :

  1. “Alarm system” means electronic equipment and devices designed to act as a personal emergency response system;
  2. “Personal emergency response system” means an alarm system that is:
    1. Installed in the residence of a customer;
    2. Monitored by an alarm systems company;
    3. Designed only to permit the customer to signal the occurrence of a medical or personal emergency on the part of the customer so that the personal emergency response system provider may dispatch appropriate aid; and
    4. Not part of a combination of alarm systems that includes a burglar alarm or fire alarm;
  3. “Personal emergency response system provider” means a person who sells, installs, services, monitors, or responds to a personal emergency response system, but shall not include:
    1. A 911 center, public safety answering point, or communications center;
    2. A public or private agency called by the 911 center, public safety answering point, or communications center to render aid or services to the customer who sent the alarm to the personal emergency response system provider; or
    3. Any person on the customer’s contact list;
  4. “Customer” means both:
    1. The person in whose residence the personal emergency response system is installed; and
    2. The person with whom a personal emergency response system provider has contracted for the provision of personal emergency response services; and
  5. “Responder” means:
    1. A person, if any, designated by the customer; and
    2. The 911 center, public safety answering point, or communications center in the jurisdiction from which an alarm was received, that is to be called by the personal emergency response system provider in the event the customer requires aid from a responder.

History. Enact. Acts 2008, ch. 102, § 1, effective July 15, 2008.

Legislative Research Commission Notes.

(7/15/2008). 2008 Ky. Acts ch. 102, sec. 7 provides that KRS 438.280 to 438.290 “... shall be known and may be cited as the Christine Talley Act.”

438.282. Provision of services of personal emergency response system provider — Prohibited acts.

  1. A person shall not act or perform the services of a personal emergency response system provider in violation of the provisions of KRS 438.284 .
  2. A person performing the services of a personal emergency response system provider shall not:
    1. Fail or refuse to promptly make any notification provided by KRS 438.284 ;
    2. Violate any contract provision required by KRS 438.284 ; or
    3. Direct, permit, or authorize any employee or agent of the personal emergency response system provider to do any act forbidden or to fail to do any act required by this section or by KRS 438.284.

History. Enact. Acts 2008, ch. 102, § 2, effective July 15, 2008.

438.284. New contracts for personal emergency response system services — Components — Existing contracts.

  1. Effective January 1, 2009, all new contracts between a personal emergency response system provider and a customer shall be in accordance with the following:
    1. The customer shall designate in the contract the order in which responders are to be contacted in the event the personal emergency response system provider receives an emergency alarm from the customer;
    2. The customer may designate in the contract that, in response to receiving a customer’s alarm, the first and primary contact for the dispatch of aid shall be from the personal emergency response system provider to a 911 center, public safety answering point, or communications center in the jurisdiction from which the alarm was received;
    3. The customer may designate in the contract that if, in response to receiving a customer’s alarm, the personal emergency response system provider is not able to solicit a verbal response from the customer, then the personal emergency response system provider shall call the customer’s 911 center, public safety answering point, or communications center before contacting the customer’s designated responders;
    4. If the customer does not designate in the contract a 911 center, public safety answering point, or communications center as the primary responder, then the customer’s 911 center, public safety answering point, or communications center shall become the default secondary responder after the personal emergency response system provider has attempted, without success, to notify all other responders designated by the customer;
    5. The personal emergency response system provider shall provide a disclosure statement to the customer that clearly states that the customer has the option to designate in the contract a 911 center, public safety answering point, or communications center as the primary responder. The customer shall acknowledge that he or she has read the disclosure statement by initialing, signing, or checking a box on the disclosure statement;
    6. If a 911 center, public safety answering point, or communications center is designated as a responder by the customer pursuant to this section, the personal emergency response system provider shall provide that responder with the name of the customer, the location from which the customer’s alarm was received, and such other information as may be requested by the 911 center, public safety answering point, or communications center; and
    7. Following any notification to the 911 center, public safety answering point, or communications center, the personal emergency response system provider shall attempt to notify the responders on the customer’s calling list in accordance with the voice-to-voice request of the customer or, if no instructions are received from the customer, to the responders specified on the calling list in the order specified by prior written instructions of the customer.
  2. For contracts existing between a personal emergency response system provider and a customer prior to January 1, 2009:
    1. A personal emergency response system provider shall, by January 1, 2009:
      1. Mail a notice to each customer giving the customer the option of adding a 911 center, public safety answering point, or communications center as the primary responder as provided in this section; and
      2. Provide the customer with a toll-free number by which to contact the personal emergency response system provider in order to establish a modified protocol for the customer; and
    2. If the customer does not contact the personal emergency response system provider to change his or her protocol, the existing protocol shall remain in place between the customer and the personal emergency response system provider.

History. Enact. Acts 2008, ch. 102, § 3, effective July 15, 2008.

438.286. Inapplicability of KRS 438.282 and 438.284.

KRS 438.282 and 438.284 shall not apply to:

  1. A unit of federal, state, or local government, or special district, or an agency or instrumentality thereof;
  2. A person engaged in the business of electronic monitoring of an individual as a condition of that individual’s community supervision, parole, mandatory supervision, pretrial release, or release on bail relating to a judicial proceeding; or
  3. A person not engaged in the business of personal emergency response system provider as defined in KRS 438.280 .

History. Enact. Acts 2008, ch. 102, § 4, effective July 15, 2008.

438.288. Concurrent jurisdiction for enforcement of KRS 438.280 to 438.290 — Violation of KRS 367.170.

  1. The Attorney General and the county attorney shall have concurrent jurisdiction to enforce the provisions of KRS 438.280 to 438.290 , and may recover the reasonable costs of investigation and litigation.
  2. If an act by a personal emergency response system provider violates KRS 367.170 , the Attorney General may take civil action and seek any remedy provided in KRS Chapter 367, including recovery of the reasonable costs of investigation and litigation.

History. Enact. Acts 2008, ch. 102, § 5, effective July 15, 2008.

438.290. Penalty for violation of KRS 438.282 or 438.284.

Any person who knowingly violates KRS 438.282 or 438.284 shall be liable for a civil penalty of not more than ten thousand dollars ($10,000) per violation.

History. Enact. Acts 2008, ch. 102, § 6, effective July 15, 2008.

Sale and Distribution of Tobacco Products

438.300. Legislative intent.

It is the intent of the Legislature that KRS 438.305 to 438.340 shall be enforced in an equitable and uniform manner throughout the Commonwealth. For the purpose of equitable and uniform enforcement, the provisions of KRS 438.305 to 438.340 shall supersede any subsequently enacted local law, ordinance, or regulation which relates to the use, display, sale, or distribution of tobacco products. It is the intent of the Legislature that KRS 438.305 to 438.340 be enforced so as to ensure the eligibility for and receipt of any federal funds or grants that the Commonwealth of Kentucky now receives or may receive relating to the provisions of KRS 438.305 to 438.340.

History. Enact. Acts 1994, ch. 480, § 11, effective July 15, 1994; 1996, ch. 38, § 1, effective March 5, 1996.

NOTES TO DECISIONS

1.Preemption of Local Laws.

True test under KRS 67A.070(2)(a) of the concurrent authority of the state and local government to regulate a particular area is the absence of conflict, and the simple fact that the state has made certain regulations does not prohibit local government from establishing additional requirements so long as there is no conflict between them. Thus, a local ordinance, which banned smoking in public buildings was neither expressly or impliedly preempted by state statutes that also touched on the issue of smoking such as KRS 438.300 ; the Kentucky Food, Drug and Cosmetic Act, KRS 217.005 et seq.; or the Retail Food Code, Ky. Admin. Regs. tit. 902, § 45:005. Lexington Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 2004 Ky. LEXIS 94 ( Ky. 2004 ).

438.305. Definitions for KRS 438.305 to 438.340.

As used in KRS 438.305 to 438.340 , unless the context requires otherwise:

    1. “Alternative nicotine product” means a noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. (1) (a) “Alternative nicotine product” means a noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means.
    2. “Alternative nicotine product” does not include any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act;
  1. “Manufacturer” means any person who manufactures or produces tobacco products within or without this Commonwealth;
  2. “Nonresident wholesaler” means any person who purchases cigarettes or other tobacco products directly from the manufacturer and maintains a permanent location or locations outside this state at which Kentucky cigarette tax evidence is attached or from which Kentucky cigarette tax is reported and paid;
  3. “Proof of age” means a driver’s license or other documentary or written evidence of an individual’s age;
  4. “Resident wholesaler” means any person who purchases at least seventy-five percent (75%) of all cigarettes or other tobacco products purchased by that person directly from the cigarette manufacturer on which the cigarette tax provided for in KRS 138.130 to 138.205 is unpaid, and who maintains an established place of business in this state at which the person attaches cigarette tax evidence or receives untaxed cigarettes;
  5. “Sample” means a tobacco product, alternative nicotine product, or vapor product distributed to members of the general public at no cost;
  6. “Subjobber” means any person who purchases tobacco products, on which the Kentucky cigarette tax has been paid, from a wholesaler licensed pursuant to KRS 138.195 , and makes them available to a retail establishment for resale;
    1. “Tobacco product” means any cigarette, cigar, snuff, smokeless tobacco product, smoking tobacco, chewing tobacco, and any kind or form of tobacco prepared in a manner suitable for chewing or smoking, or both, or any kind or form of tobacco that is suitable to be placed in a person’s mouth. “Tobacco product” also means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product, except for raw materials other than tobacco used in manufacturing any component, part, or accessory of a tobacco product, in accordance with the federal Tobacco Control Act, Pub. L. No. 111-31; (8) (a) “Tobacco product” means any cigarette, cigar, snuff, smokeless tobacco product, smoking tobacco, chewing tobacco, and any kind or form of tobacco prepared in a manner suitable for chewing or smoking, or both, or any kind or form of tobacco that is suitable to be placed in a person’s mouth. “Tobacco product” also means any product made or derived from tobacco that is intended for human consumption, including any component, part, or accessory of a tobacco product, except for raw materials other than tobacco used in manufacturing any component, part, or accessory of a tobacco product, in accordance with the federal Tobacco Control Act, Pub. L. No. 111-31;
    2. “Tobacco product” does not include any alternative nicotine product, vapor product, or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act; and
    1. “Vapor product” means any noncombustible product that employs a heating element, battery, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size and including the component parts and accessories thereto, that can be used to deliver vaporized nicotine or other substances to users inhaling from the device. “Vapor product” includes but is not limited to any device deemed to be an electronic nicotine delivery system by the United States Food and Drug Administration, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and every variation thereof, regardless of whether marketed as such, and any vapor cartridge or other container of a liquid solution or other material that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or other similar product or device. (9) (a) “Vapor product” means any noncombustible product that employs a heating element, battery, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size and including the component parts and accessories thereto, that can be used to deliver vaporized nicotine or other substances to users inhaling from the device. “Vapor product” includes but is not limited to any device deemed to be an electronic nicotine delivery system by the United States Food and Drug Administration, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and every variation thereof, regardless of whether marketed as such, and any vapor cartridge or other container of a liquid solution or other material that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or other similar product or device.
    2. “Vapor product” does not include any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug, and Cosmetic Act.

History. Enact. Acts 1994, ch. 480, § 2, effective July 15, 1994; 1996, ch. 38, § 2, effective March 5, 1996; 2000, ch. 423, § 1, effective July 14, 2000; 2014, ch. 111, § 1, effective April 10, 2014; 2020 ch. 35, § 1, effective March 26, 2020.

438.310. Sale of tobacco products, alternative nicotine products, or vapor products to persons under age 21 prohibited — Penalty.

  1. No person shall sell or cause to be sold any tobacco product, alternative nicotine product, or vapor product at retail to any person under the age of twenty-one (21), or solicit any person under the age of twenty-one (21) to purchase any tobacco product, alternative nicotine product, or vapor product at retail.
  2. Any person who sells tobacco products, alternative nicotine products, or vapor products at retail shall cause to be posted in a conspicuous place in his or her establishment a notice stating that it is illegal to sell tobacco products, alternative nicotine products, or vapor products to persons under age twenty-one (21).
  3. Any person selling tobacco products, alternative nicotine products, or vapor products shall require proof of age from a prospective buyer or recipient if the person has reason to believe that the prospective buyer or recipient is under the age of twenty-one (21).
  4. A person who violates subsection (1) or (2) of this section shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for a first violation and a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) for any subsequent violation. The fine shall be administered by the Department of Alcoholic Beverage Control using a civil enforcement procedure.

History. Enact. Acts 1990, ch. 388, § 1, effective July 13, 1990; 1992, ch. 164, § 3, effective July 14, 1992; 1994, ch. 480, § 9, effective July 15, 1994; 1996, ch. 38, § 3, effective March 5, 1996; 2000, ch. 423, § 2, effective July 14, 2000; 2010, ch. 24, § 1925, effective July 15, 2010; 2014, ch. 111, § 2, effective April 10, 2014; 2020 ch. 35, § 2, effective March 26, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 438.045 and was renumbered by the Reviser of Statutes effective July 15, 1994 pursuant to KRS 7.136(1).

438.311. Unlawful acts by persons under 21 relating to purchase or receipt of tobacco product, alternative nicotine product, or vapor product — Confiscation.

  1. Except for the provisions of KRS 438.330 , it shall be unlawful for a person who has not attained the age of twenty-one (21) years to purchase or accept receipt of or to attempt to purchase or accept receipt of a tobacco product, alternative nicotine product, or vapor product, or to present or offer to any person any purported proof of age which is false, fraudulent, or not actually his or her own, for the purpose of purchasing or receiving any tobacco product, alternative nicotine product, or vapor product. It shall not be unlawful for such a person to accept receipt of a tobacco product, alternative nicotine product, or vapor product from an employer when required in the performance of the person’s duties.
  2. All peace officers with general law enforcement authority and employees of the Department of Alcoholic Beverage Control may confiscate the tobacco product, alternative nicotine product, or vapor product of a person under the age of twenty-one (21) who has violated this section. Notwithstanding any provision of law to the contrary, no other penalty shall apply to a person under the age of twenty-one (21) for a violation of this section.

History. Enact. Acts 1996, ch. 38, § 4, effective March 5, 1996; 1998, ch. 477, § 1, effective July 15, 1998; 2000, ch. 423, § 3, effective July 14, 2000; 2006, ch. 17, § 1, effective July 12, 2006; 2010, ch. 24, § 1926, effective July 15, 2010; 2014, ch. 111, § 3, effective April 10, 2014; ch. 132, § 20, effective July 15, 2014; 2020 ch. 35, § 3, effective March 26, 2020.

438.313. Distribution of cigarettes, tobacco products, alternative nicotine products, or vapor products to persons under age 21 prohibited — Penalty — Issuance of uniform citation.

  1. No wholesaler, retailer, or manufacturer of cigarettes, tobacco products, alternative nicotine products, or vapor products may distribute cigarettes, tobacco products, alternative nicotine products, or vapor products, including samples thereof, free of charge or otherwise, to any person under the age of twenty-one (21).
  2. Any person who distributes cigarettes, tobacco products, alternative nicotine products, or vapor products, including samples thereof, free of charge or otherwise shall require proof of age from a prospective buyer or recipient if the person has reason to believe that the prospective purchaser or recipient is under the age of twenty-one (21).
  3. Any person who violates the provisions of this section shall be fined not less than one thousand dollars ($1,000) nor more than two thousand five hundred dollars ($2,500) for each offense. The fine shall be administered by the Department of Alcoholic Beverage Control using a civil enforcement procedure for persons eighteen (18) years of age or older.
  4. All peace officers with general law enforcement authority and employees of the Department of Alcoholic Beverage Control may issue a uniform citation, but may not make an arrest, or take a child into custody, for a violation of this section.

History. Enact. Acts 1992, ch. 164, § 1, effective July 14, 1992; repealed, reenact., and amend. Acts 1994, ch. 480, § 10, effective July 15, 1994; 1996, ch. 38, § 5, effective March 5, 1996; 1998, ch. 477, § 2, effective July 15, 1998; 2000, ch. 423, § 4, effective July 14, 2000; 2010, ch. 24, § 1927, effective July 15, 2010; 2014, ch. 111, § 4, effective April 10, 2014; 2020 ch. 35, § 4, effective March 26, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 365.395 and was repealed, reenacted, and amended as this section by Acts 1994, ch. 480, § 10, effective July 15, 1994.

438.315. Sales of tobacco products, alternative nicotine products, or vapor products to or purchases by persons under age 21 from vending machine prohibited — Location of vending machine — Penalty — Issuance of uniform citation.

  1. The sale of tobacco products, alternative nicotine products, or vapor products dispensed through a vending machine is prohibited to any person under the age of twenty-one (21) years.
  2. The purchase of tobacco products, alternative nicotine products, or vapor products dispensed through a vending machine is prohibited to any person under the age of twenty-one (21) years.
  3. Except for vending machines located in factories or vending machines located in bars or taverns to which minors are not permitted access, any vending machine from which tobacco products, alternative nicotine products, or vapor products are dispensed shall be located in the line of sight of the cashier for the retail establishment.
  4. Any owner of a retail establishment violating this section shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation. The fine shall be administered by the Department of Alcoholic Beverage Control using a civil enforcement procedure for persons eighteen (18) years of age or older.
  5. All peace officers with general law enforcement authority and employees of the Department of Alcoholic Beverage Control may issue a uniform citation, but may not make an arrest, or take a child into custody, for a violation of this section.

History. Enact. Acts 1994, ch. 480, § 3, effective July 15, 1994; 1996, ch. 38, § 6, effective March 5, 1996; 1998, ch. 477, § 3, effective July 15, 1998; 2000, ch. 423, § 5, effective July 14, 2000; 2010, ch. 24, § 1928, effective July 15, 2010; 2014, ch. 111, § 5, effective April 10, 2014; 2020 ch. 35, § 5, effective March 26, 2020.

438.317. Prohibitions against sale of or making available cigarettes packaged in units of fewer than twenty — Penalties.

  1. No person shall sell or cause to be sold at retail cigarettes packaged in units of fewer than twenty (20) cigarettes.
  2. No resident wholesaler, nonresident wholesaler, or subjobber shall make available to a retail establishment cigarettes packaged for retail sale in units of less than twenty (20) cigarettes.
  3. Any person violating subsection (1) of this section shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Any person violating subsection (2) of this section shall be fined not less than one thousand dollars ($1,000) nor more than two thousand five hundred dollars ($2,500). These penalties shall be enforced by the Department of Alcoholic Beverage Control through civil enforcement procedures.

History. Enact. Acts 1998, ch. 479, § 1, effective July 15, 1998; 2000, ch. 423, § 6, effective July 14, 2000; 2010, ch. 24, § 1929, effective July 15, 2010.

438.320. Reports by wholesalers, nonresident wholesalers, and subjobbers.

Each resident wholesaler, nonresident wholesaler, or subjobber making tobacco products available to a retail establishment for sale or distribution shall report the name and address of the owner of the retail establishment to the Department of Alcoholic Beverage Control in a manner specified by administrative regulations promulgated pursuant to KRS Chapter 13A.

History. Enact. Acts 1994, ch. 480, § 4, effective July 15, 1994; 2000, ch. 423, § 7, effective July 14, 2000; 2010, ch. 24, § 1930, effective July 15, 2010.

438.325. Notice to employee of prohibitions — Penalty.

  1. Each owner of a retail establishment selling or distributing tobacco products, alternative nicotine products, or vapor products shall notify each individual employed in the retail establishment as a retail sales clerk that the sale of tobacco products, alternative nicotine products, or vapor products to any person under the age of twenty-one (21) years and the purchase of tobacco products, alternative nicotine products, or vapor products by any person under the age of twenty-one (21) years are prohibited.
  2. Each owner of a retail establishment selling or distributing tobacco products, alternative nicotine products, or vapor products shall notify each individual employed in the retail establishment as a retail sales clerk that proof of age is required from a prospective buyer or recipient if the person has reason to believe that the prospective purchaser or recipient is under the age of twenty-one (21).
  3. The notice to employees that is required in subsection (1) of this section shall be provided before the person commences work as a retail sales clerk, or, in the case of a person employed as a retail sales clerk on March 26, 2020, within thirty (30) days of that date. The employee shall signify receipt of the notice required by this section by signing a form that states as follows:

    “I understand that under the law of the Commonwealth of Kentucky it is illegal to sell or distribute tobacco products, alternative nicotine products, or vapor products to persons under the age of twenty-one (21) years and that it is illegal for persons under the age of twenty-one (21) years to purchase tobacco products, alternative nicotine products, or vapor products.”

  4. The owner of the retail establishment shall maintain the signed notice that is required pursuant to subsection (3) of this section in a place and in a manner so as to be easily accessible to any employee of the Department of Alcoholic Beverage Control or the Department of Agriculture conducting an inspection of the retail establishment for the purpose of monitoring compliance in limiting the sale or distribution of tobacco products, alternative nicotine products, or vapor products to persons under the age of twenty-one (21) as provided in KRS 438.305 to 438.340 .
  5. Any owner of the retail establishment violating subsections (1) to (4) of this section shall be subject to a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) for each violation. The fine shall be administered by the Department of Alcoholic Beverage Control in a civil enforcement procedure.

History. Enact. Acts 1994, ch. 480, § 5, effective July 15, 1994; 1996, ch. 38, § 7, effective March 5, 1996; 2000, ch. 423, § 8, effective July 14, 2000; 2010, ch. 24, § 1931, effective July 15, 2010; 2014, ch. 111, § 6, effective April 10, 2014; 2020 ch. 35, § 6, effective March 26, 2020.

438.330. Random inspections of retail establishment selling or distributing tobacco products, alternative nicotine products, or vapor products — Preparation of federally required annual report.

  1. The Department of Alcoholic Beverage Control and the Department of Agriculture shall carry out annually conducted random, unannounced inspections of retail establishments where tobacco products, alternative nicotine products, or vapor products are sold or distributed for the purpose of enforcing the provisions of KRS 438.305 to 438.340 . The inspections shall be conducted to the extent necessary to assure that the Commonwealth remains in compliance with Public Law 102-321 and applicable federal regulations. The Department of Alcoholic Beverage Control and the Department of Agriculture shall also ensure that targeted inspections are conducted at those retail establishments where, and at those times when, persons under the age of twenty-one (21) years are most likely to purchase tobacco products, alternative nicotine products, or vapor products. Persons under the age of twenty-one (21) years may be used to test compliance with the provisions of KRS 438.305 to 438.340 only if the testing is conducted under the direct supervision of the Department of Alcoholic Beverage Control, sheriff, or chief of police, or their employees, and written parental consent has been obtained. The Department of Alcoholic Beverage Control shall prepare annually, for submission by the Governor to the Secretary of the United States Department of Health and Human Services, the report required by Section 1926 of Subpart 1 of Part B of Title XIX of the Federal Public Health Service Act.
  2. The Department of Alcoholic Beverage Control shall develop and implement the survey sampling methodologies to carry out the inspections as described in this section.

History. Enact. Acts 1994, ch. 480, § 6, effective July 15, 1994; 2000, ch. 423, § 10, effective July 14, 2000; 2010, ch. 24, § 1932, effective July 15, 2010; 2014, ch. 111, § 7, effective April 10, 2014; 2020 ch. 35, § 7, effective March 26, 2020.

Compiler’s Notes.

The Federal Public Health Service Act, referred to in subsection (1), is codified as 42 USCS § 201 et seq.

438.335. Enforcement by Department of Agriculture — Retention of percentage of per pack revenue and fines.

The Department of Agriculture shall carry out the provisions of KRS 438.305 to 438.340 as they relate to educating the public and sellers of tobacco products, alternative nicotine products, or vapor products about provisions and penalties of KRS 438.305 to 438.340 . The Department of Agriculture shall be entitled to the revenue produced by one-twentieth of one cent ($0.0005) of the three-cent ($0.03) per pack revenue collected by the Department of Revenue from the state excise tax on the sale of cigarettes as imposed by KRS 138.140 and to keep fifty percent (50%) of any fines collected under KRS 438.305 to 438.340 to offset the costs of these education efforts.

History. Enact. Acts 1994, ch. 480, § 7, effective July 15, 1994; 1996, ch. 38, § 8, effective March 5, 1996; 1998, ch. 477, § 4, effective July 15, 1998; 2000, ch. 423, § 11, effective July 14, 2000; 2005, ch. 85, § 697, effective June 20, 2005; 2014, ch. 111, § 8, effective April 10, 2014.

438.337. Responsibilities of Department of Alcoholic Beverage Control in enforcement of KRS 438.305 to 438.340 — Disposition of revenue and fines collected under KRS 138.140 and KRS 438.305 to 438.340 — Statistics — Enforcement plan.

  1. The Department of Alcoholic Beverage Control shall carry out the enforcement provisions of KRS 438.305 to 438.340 .
  2. The Department of Alcoholic Beverage Control shall be entitled to the revenue produced by one-twentieth of one cent ($0.0005) of the three-cent ($0.03) per pack revenue collected by the Finance and Administration Cabinet from the state excise tax on the sale of cigarettes as imposed by KRS 138.140 to be deposited in a trust and agency account created in the State Treasury, and to keep fifty percent (50%) of any fines collected under KRS 438.305 to 438.340 to offset the costs of enforcement of KRS 438.305 to 438.340 .
  3. The Department of Alcoholic Beverage Control shall be responsible for maintaining statistics for compilation of required reports to be submitted to the United States Department of Health and Human Services.
  4. The Department of Alcoholic Beverage Control shall devise a plan and time frame for enforcement to determine by random inspection if the percentage of retailers or distributors making illegal sales to persons under the age of twenty-one (21) does or does not exceed federal guidelines preventing tobacco sales to persons under the age of twenty-one (21).

History. Enact. Acts 2000, ch. 423, § 9, effective July 14, 2000; 2010, ch. 24, § 1933, effective July 15, 2010; 2020 ch. 35, § 8, effective March 26, 2020.

438.340. Authority for administrative regulations.

The Department of Alcoholic Beverage Control and the Department of Agriculture are authorized to promulgate administrative regulations pursuant to KRS Chapter 13A as necessary to implement and carry out the provisions of KRS 438.305 to 438.340 .

History. Enact. Acts 1994, ch. 480, § 8, effective July 15, 1994; 2000, ch. 423, § 12, effective July 14, 2000; 2010, ch. 24, § 1934, effective July 15, 2010.

438.345. Use of tobacco products, alternative nicotine products, and vapor products on school property and during school activities — Written policies — Penalties — Board may opt out.

  1. As used in this section:
    1. “Alternative nicotine product” has the same meaning as in KRS 438.305 ;
    2. “Tobacco product” has the same meaning as in KRS 438.305 ; and
    3. “Vapor product” has the same meaning as in KRS 438.305.
  2. The use of any tobacco product, alternative nicotine product, or vapor product:
    1. Shall be prohibited for all persons and at all times on or in all property, including any vehicle, that is owned, operated, leased, or contracted for use by a local board of education;
    2. Shall be prohibited for all students while attending or participating in any school-related student trip or student activity; and
    3. Is prohibited for school district employees, volunteers, and all other individuals affiliated with a school while the user is attending or participating in any school-related student trip or student activity and is in the presence of a student or students.
  3. On or before July 1, 2020, each local board of education shall implement this section by adopting written policies that prohibit the use of tobacco products, alternative nicotine products, and vapor products pursuant to this section. The policies shall provide for:
    1. Adequate notice regarding the policy to be provided to students, parents and guardians, school employees, and the general public;
    2. A requirement to post signage on or in all property, including any vehicle, that is owned, operated, leased, or contracted for use by a local board of education, clearly stating that use of tobacco products, alternative nicotine products, and vapor products is prohibited at all times and by all persons on or in the property; and
    3. A requirement that school employees enforce the policies.
  4. A person in violation of subsection (2) of this section, or policies adopted by a local board of education pursuant to subsection (3) of this section, shall be subject to penalties as set forth by the local board of education.
  5. Nothing in this section shall be interpreted or construed to:
    1. Permit use of a tobacco product, alternative nicotine product, or vapor product, where it is otherwise restricted by this section, other state or federal law, administrative regulation, or executive order;
    2. Prevent a local board of education or any other local governmental entity from adopting local ordinances, regulations, or policies relating to use of a tobacco product, alternative nicotine product, or a vapor product, in public places of employment, and nonenclosed areas, that are more restrictive than what is provided for in this section; or
    3. Repeal any existing local ordinances, regulations, or policies that provide restrictions on the use of a tobacco product, alternative nicotine product, or vapor product, in addition to those provided for in this section.
  6. Each local board of education may choose, up to three (3) years after June 27, 2019, to opt out of subsections (2) to (4) of this section.

HISTORY: 2019 ch. 198, § 1, effective June 27, 2019.

438.350. Prohibition against possession or use of tobacco products, alternative nicotine products, or vapor products by persons under 21 — Exceptions.

  1. No person under the age of twenty-one (21) shall possess or use tobacco products, alternative nicotine products, or vapor products.
  2. Any tobacco product, alternative nicotine product, or vapor product found in the possession of a person under the age of twenty-one (21) and in plain view of the law enforcement officer shall be confiscated by the law enforcement officer making the charge.
  3. This section shall not apply to persons exempted as provided by KRS 438.311 and 438.330 .
  4. The terms “alternative nicotine product,” “tobacco product,” and “vapor product,” shall have the same meanings as in KRS 438.305 .

History. Enact. Acts 2000, ch. 160, § 1, effective July 14, 2000; 2014, ch. 111, § 9, effective April 10, 2014; 2020 ch. 35, § 9, effective March 26, 2020.

CHAPTER 439 Probation and Parole

439.010. Definitions. [Repealed.]

Compiler’s Notes.

This section (originally created by the Legislative Research Commission in order to clarify the chapter) was repealed by Acts 1956, ch. 101, § 34.

439.020. Circuit courts may postpone judgment and probate defendant. [Repealed.]

Compiler’s Notes.

This section (979b-5) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 532.030 .

439.030. Probation officer to investigate defendant — Supervision of probationers by Division of Probation and Parole. [Repealed.]

Compiler’s Notes.

This section (979b-6; Acts 1942, ch. 96, §§ 6 and 7; Acts 1954, ch. 67) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 533.030 .

439.040. Conditions of probation. [Repealed.]

Compiler’s Notes.

This section (979b-7) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 533.030 .

439.050. Arrest for violation of probation; revocation on commission of subsequent offense. [Repealed.]

Compiler’s Notes.

This section (979b-8; Acts 1942, ch. 96, §§ 8 and 9) was repealed by Acts 1956, ch. 101, § 34.

439.060. Termination of period of probation. [Repealed.]

Compiler’s Notes.

This section (979b-8; Acts 1942, ch. 96, §§ 8 and 9) was repealed by Acts 1956, ch. 101, § 34.

439.070. Second-class city police court may suspend sentence. [Repealed.]

Compiler’s Notes.

This section (3171-1) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

439.080. Probation officer of second-class city. [Repealed.]

Compiler’s Notes.

This section (3171-2; Acts 1966, ch. 255, § 274) was repealed by Acts 1970, ch. 182, § 2.

439.090. Suspension of judgment and release of prisoner prohibited after final judgment. [Repealed.]

Compiler’s Notes.

This section (1142b-1, 1142b-2) was repealed by Acts 1956, ch. 101, § 34.

439.095. Parole of persons confined in workhouse or penal farm of county containing city of first class. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1948, ch. 234; 1958, ch. 126, § 41; 1976 (Ex. Sess.), ch. 14, § 445, effective January 2, 1978) was repealed by Acts 1992, ch. 445, § 14, effective July 14, 1992.

439.100. Parole of prisoners in penitentiary; parole board — Duty of Director of Probation and Parole. [Repealed.]

Compiler’s Notes.

This section (3828-1; Acts 1952, ch. 181, § 1) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.320 to 439.348 , 439.470 .

439.105. Parole by Commissioner of Welfare during period of National Emergency. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 121, §§ 1 and 2; Acts 1944, ch. 104, § 1) was repealed by Acts 1948, ch. 119, § 2.

439.106. Parole by Governor during period of National Emergency. [Repealed.]

Compiler’s Notes.

This section (Acts 1944, ch. 169, § 1) was repealed by Acts 1948, ch. 119, § 2.

439.110. Length of time prisoner to serve before parole. [Repealed.]

Compiler’s Notes.

This section (3828-2; Acts 1948, ch. 119, § 1) was repealed by Acts 1962, ch. 168, § 7. For present law, see KRS 439.340 .

439.115. Minimum time before parole under sentences aggregating fifteen years or less. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 1) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9. For present law, see KRS 439.340 .

439.120. Rules for prisoners; recommendation for parole; conditions of; things to be supplied to parolee. [Repealed.]

Compiler’s Notes.

This section (3828-2) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.340 , 439.346 .

439.125. Minimum time before parole under sentences aggregating fifteen to twenty-one years. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 2) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9. For present law, see KRS 439.340 .

439.130. Employment agents. [Repealed.]

Compiler’s Notes.

This section (3828-8) was repealed by Acts 1956, ch. 101, § 34.

439.135. Minimum time for parole under life sentences. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 3) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9. For present law, see KRS 439.340 .

439.140. Discharge of parolee. [Repealed.]

Compiler’s Notes.

This section (3828-6) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.354 to 439.358 .

439.145. Aggregation of sentences. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 4) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9.

439.150. Department has control and custody of parolees; final discharge. [Repealed.]

Compiler’s Notes.

This section (3828-7; Acts 1954, ch. 66) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.348 , 439.354 to 439.358 .

439.155. Eligibility of prisoner sentenced for crime committed while confined or escaped. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 5) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9. For present law, see KRS 439.340 .

439.160. Duty of parolee to report to department. [Repealed.]

Compiler’s Notes.

This section (3828-3; Acts 1942, ch. 96, §§ 10 and 11) was repealed by Acts 1956, ch. 101, § 34.

439.165. Provisions of KRS 439.115 to 439.165 apply in all cases. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 168, § 6) was repealed by Acts 1963 (2nd Ex. Sess.), ch. 4, § 9.

439.170. Parolee need not wear prison identification. [Repealed.]

Compiler’s Notes.

This section (3828-4) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.420 .

439.175. Parole in misdemeanor cases. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 175, §§ 1, 2) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

439.177. Parole privileges for certain misdemeanants — Duties of sentencing judge.

  1. Any misdemeanant may petition the sentencing court for parole privileges.
  2. The sentencing judge shall study the record of all persons petitioning for parole and, in his discretion, may:
    1. Cause additional background or character information to be collected or reduced to writing by the Department of Corrections;
    2. Conduct hearings on the desirability of granting parole;
    3. Impose on the parolee the conditions he sees fit;
    4. Order the granting of parole;
    5. Issue warrants for persons when there is reason to believe they have violated the conditions of their parole and conduct hearings on such matters;
    6. Determine the period of supervision for parolees, which period may be subject to extension or reduction;
    7. Grant final discharge to parolees.
  3. The sentencing judge shall keep a record of his acts, and shall notify the appropriate jail official of his decision relating to the persons who are or have been confined therein.
  4. When an order for parole is issued, it shall recite the conditions thereof, and such orders shall be transmitted to the Department of Corrections.
  5. The period of time spent on parole shall not count as a part of the prisoner’s maximum sentence except in determining the parolee’s eligibility for a final discharge from parole as set out in subsection (7).
  6. Paroled prisoners shall be under the supervision of the department and subject to its decision for the duration of parole. Supervision of the parolee by the Department of Corrections shall cease at the time of recommitment of the prisoner to the jail as a parole violator, or at the time a final discharge from parole is granted by the sentencing judge.
  7. When any paroled prisoner has performed the obligations of his parole during his period of active parole supervision, the sentencing judge may, at the termination of a period to be determined by the sentencing judge, issue a final discharge from parole to the prisoner. Unless ordered earlier by the sentencing judge, a final discharge shall be issued when the prisoner has been out of jail on parole a sufficient period of time to have been eligible for discharge from jail by maximum expiration of sentence had he not been paroled, if before this date he had not absconded from parole supervision or that a warrant for parole violation had not been issued.
  8. The prisoner convicted of a misdemeanor and released on parole under the provisions of this statute shall be subject to all reasonable Department of Corrections regulations.

History. Enact. Acts 1972, ch. 294, § 1; 1974, ch. 74, Art. V, § 24(14); 1976 (Ex. Sess.), ch. 14, § 446, effective January 2, 1978; 1978, ch. 200, § 9, effective January 17, 1978; 1982, ch. 344, § 35, effective July 15, 1982; 1992, ch. 211, § 88, effective July 14, 1992.

Compiler’s Notes.

This section has been held unconstitutional by the Attorney General, in OAG 78-281 and 82-618, and by the Kentucky Court of Appeals, in Commonwealth v. Cornelius, 606 S.W.2d 172 (Ky. Ct. App. 1980).

NOTES TO DECISIONS

1.Constitutionality.

Since the decision as to whether a person serving a sentence of imprisonment should be paroled is an executive function, this section, which vests the judiciary with the right to make such a decision is unconstitutional and void. Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

The power to grant parole is vested exclusively in the executive branch of the government, and thus this section, which authorizes judges to exercise such power, violates Const., §§ 27, 28 and 77 and is void. Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

2.Procedure.

The granting of parole by a county judge (now county/executive) is an executive action presumed to follow the procedure set out in the statute even if the procedure is not mentioned in the parole order. Peck v. Conder, 540 S.W.2d 10, 1976 Ky. LEXIS 32 ( Ky. 1976 ). (Decision prior to 1976 amendment).

Opinions of Attorney General.

A Circuit Court judge cannot parole a misdemeanant serving out a sentence in a county jail as the parole application is properly addressed to the county judge for the county in which he is being held. OAG 72-548 .

Subsection (1) of this section should be interpreted so that a misdemeanant sentenced by any court other than a police court, in a city of any class could petition the county judge of the county for parole. OAG 73-53 .

Although subsection (1) of this section refers to the right of misdemeanants to petition the judge of the sentencing court for parole if they are sentenced by the police court of a city of the first, second or third class, there is nothing said about a misdemeanant sentenced by any court other than a police court in a city of the first three (3) classes and, in order to make the legislation intelligible and completely workable, it should be read to mean that, except where police judges are the sentencing courts in cities of the first three (3) classes, the county judge of the county of imprisonment can parole a misdemeanant convicted by any trial court. OAG 73-108 .

Since the judicial role of the sentencing court is one thing, and parole authority is another, the Circuit Court must exercise jurisdiction and decide on a motion for probation wholly without considering what a county judge may do with a parole petition as the two roles are mutually exclusive and one role does not in any way impinge upon the other. OAG 73-121 .

Where a defendant was convicted of a misdemeanor in the Circuit Court and the Circuit Judge, upon a hearing, refused probation and the defendant was then paroled by the county judge, this section does not give the county judge appellate jurisdiction as the parole function is not basically of a judicial nature but is an executive or administrative role and the power to grant parole is vested in the county judge of the county wherein the misdemeanant may be confined, except where the misdemeanant is sentenced by a police judge in cities of the first three (3) classes. OAG 73-121 .

Under the provisions of subsection (1) of this section the county judge may parole a misdemeanant if the quarterly court, or Circuit Court, or justice court, in Jefferson County was the sentencing court; also if the police court, as sentencing court in Jefferson County is in a city of the fourth, fifth or sixth class, the county judge may parole a misdemeanant and in such case the detailed parole procedures provided by this section are adequate. OAG 77-127 . (Opinion prior to 1976 amendment.)

A proposal by the fiscal court permitting a classification committee with the approval of the executive director to suspend service of a misdemeanant sentence should not be adopted by a fiscal court since the granting of parole is an executive function and since such a plan would be an attempt to change the statutory procedure of this section and KRS 439.179 contrary to KRS 67.083 . OAG 77-132 .

The Legislature cannot, under the Constitution, confer the executive power of parole upon judges. OAG 78-150 .

Since when a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished and what then happens to the prisoner is in the hands of the executive branch of government, this section investing the parole function in the sentencing court is unconstitutional. OAG 78-281 .

This section, as last amended in 1982, which permits the sentencing court to grant parole to misdemeanants, is unconstitutional, inoperative, and void. OAG 82-618 .

The General Assembly could validly enact legislation vesting the authority to parole misdemeanants in the county judge/executives, since they belong to the executive branch of government; such vested authority would have to be accompanied by express or explicit guidelines in order for the county judge/executives to carry out that function. However, there is no effective and constitutional statute vesting such authority in existence at this time; thus at present, the county judge/executives have no authority to parole misdemeanants. OAG 84-15 .

The county judge/executive has no authority to parole misdemeanants, regardless of whether they are convicted in the District or Circuit Court. OAG 84-352 .

Research References and Practice Aids

Kentucky Law Journal.

Bartlett, Authorized Dispositions of Offenders Under the (Prior) New (1972) Kentucky Penal Code, 61 Ky. L.J. 708 (1973).

439.179. Release of misdemeanants — Purposes for which permitted — Earnings of prisoner, records, and disposition — Authority of District Judge, jailer.

  1. Any person sentenced to a jail for a misdemeanor, nonpayment of a fine or forfeiture, or contempt of court, may be granted the privilege of leaving the jail during necessary and reasonable hours for any of the following purposes:
    1. Seeking employment; or
    2. Working at his employment; or
    3. Conducting his own business or other self-employment occupation including, in the case of a woman, housekeeping and attending the needs of her family; or
    4. Attendance at an educational institution; or
    5. Medical treatment.
  2. Unless the privilege is expressly granted by the court, the prisoner shall be sentenced to ordinary confinement. The prisoner may petition the sentencing court for the privilege at the time of sentence or thereafter, and, in the discretion of the sentencing court, may renew his petition. The sentencing court may withdraw the privilege at any time by order entered with or without notice. The jailer shall advise the court in establishing criteria in determining a prisoner’s eligibility for work release.
  3. The jailer shall notify the Department of Workforce Investment, which shall endeavor to secure employment for unemployed prisoners under this section. If a prisoner is employed for wages or salary, they shall, by wage assignment, be turned over to the District Court which shall deposit the same in a trust checking account and shall keep a ledger showing the status of the account of each prisoner. The wages or salary shall not be subject to garnishment of either the employer or the District Court during the prisoner’s term, and shall be disbursed only as provided in this section. For tax purposes they shall be the income of the prisoner.
  4. Every prisoner gainfully employed shall be liable for the cost of his board in the jail, for an amount up to twenty-five percent (25%) of the prisoner’s gross daily wages, not to exceed forty dollars ($40) per day, but not less than twelve dollars ($12) per day, established by the fiscal court of a county or the urban-county council if an urban-county government. If he defaults, his privilege under this section shall be automatically forfeited. All moneys shall be paid directly to the jailer and paid to the county treasury for use on the jail as provided in KRS 441.206 . The fiscal court of a county or the urban-county council if an urban-county government may, by ordinance, provide that the county furnish or pay for the transportation of prisoners employed under this section to and from the place of employment and require that the costs be repaid by the prisoner.
  5. The sentencing court may order the defendant’s employer to deduct from the defendant’s wages or salary payments for the following purposes:
    1. The board of the prisoner and transportation costs incurred by the county;
    2. Support of the prisoner’s dependents, if any;
    3. Payment, either in full or ratably, of the prisoner’s obligations acknowledged by him in writing or which have been reduced to judgment; and
    4. The balance, if any, to the prisoner upon his discharge.
  6. The sentencing court shall not direct that any payment authorized under this section be paid through the circuit clerk.
  7. The Department of Corrections shall, at the request of the District Judge, investigate and report on the amount necessary for the support of the prisoner’s dependents, and periodically review the prisoner’s progress while on leave from the jail and report its findings to the District Judge.
  8. The jailer may refuse to permit the prisoner to exercise his privilege to leave the jail as provided in subsection (1) for any breach of discipline or other violation of jail regulations for a period not to exceed five (5) days.
  9. In counties containing an urban-county form of government, the duties, responsibilities, and obligations vested herein in the Department of Corrections shall be performed by the adult misdemeanant probation and work release agency of the urban-county government.

History. Enact. Acts 1972, ch. 295, § 1; 1974, ch. 74, Art. V, § 24(14); 1974, ch. 74, Art. VI, § 106; 1976 (Ex. Sess.), ch. 14, § 447, effective January 2, 1978; 1978, ch. 200, § 10, effective June 17, 1978; 1980, ch. 188, § 300, effective July 15, 1980; 1982, ch. 344, § 36, effective July 15, 1982; 1982, ch. 385, § 37, effective July 1, 1982; 1992, ch. 211, § 89, effective July 14, 1992; 1992, ch. 368, § 1, effective July 14, 1992; 1996, ch. 45, § 3, effective July 15, 1996; 1996, ch. 271, § 27, effective July 15, 1996; 2002, ch. 183, § 26, effective August 1, 2002; 2006, ch. 211, § 165, effective July 12, 2006; 2019 ch. 146, § 74, effective June 27, 2019.

NOTES TO DECISIONS

1.Escape.

When defendant was charged with escaping from a work release sentence he was granted after a misdemeanor conviction, his argument that he should not have been allowed to participate in work release, due to a “no release” notation on his commitment order, and could not, therefore, be charged with escape, was waived when defendant pled guilty to the escape, and it was improper to ask the appellate court for an interpretation of that statute, especially when it had nothing to do with the felony escape conviction concerning which he was appealing. Teague v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 695 (Ky. Ct. App. May 23, 2003).

Cited in:

Peck v. Conder, 540 S.W.2d 10, 1976 Ky. LEXIS 32 ( Ky. 1976 ); Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

Opinions of Attorney General.

In the event the work release privilege is not expressly granted in the sentence and if the sentencing court was a justice or police court, then the county judge, after the prisoner is received in jail, has the jurisdiction to determine the feasibility of work release upon the prisoner’s petition. OAG 76-52 .

A proposal by the fiscal court permitting a classification committee with the approval of the executive director to suspend service of a misdemeanant sentence should not be adopted by a fiscal court since the granting of parole is an executive function and since such a plan would be an attempt to change the statutory procedure of KRS 439.177 and this section contrary to KRS 67.083 . OAG 77-132 .

Once a misdemeanant has been convicted by the Circuit Court and sentenced to jail, the Circuit Judge would no longer have the jurisdiction to grant the incarcerated misdemeanant a work-release privilege. OAG 77-192 .

The dieting fees in cases where the prisoner is gainfully employed would, under KRS 64.150 (repealed) be paid by the State where the defendants were charged with state statute violations, and the State would be reimbursed by the District Court’s making a proper disbursement of defendant’s earned money, going into the trust account, to the State. OAG 79-9 .

If there is good reason to believe that the prisoner, once released, will not come back to jail voluntarily, the sentencing court should be apprised of this in making his determination of the work release. OAG 79-564 .

Since subsection (9) of this section is an exception to the authority of the sentencing court, it would be construed strictly. OAG 79-564 .

The work release of a prisoner is in the discretion of the sentencing court. OAG 79-564 .

To detain a prisoner ordered to be released under this section, it must be shown that the prisoner committed a breach of jail discipline or other violation of jail regulations. OAG 79-564 .

If the terms of confinement are changed after the prisoner has begun service of the term, the jailer may release him upon receipt of the court order regardless of who delivers the court order. OAG 80-23 .

It is presumed that the prisoner has been sentenced to ordinary confinement, which means consecutive and continuous confinement. OAG 80-23 .

Once a convict has been committed to the jailer’s care, he may be released only upon a lawful discharge, which occurs only where the term of the sentence has expired or where the judgment or court order states that the period of confinement is not to be consecutive and continuous by stating when the jailer is authorized to release the prisoner. OAG 80-23 .

A misdemeanant work release prisoner must pay board of $6.75 per day under KRS 64.150 (repealed), since that dieting fee is in no way affected or amended by this section. OAG 81-103 .

Where the state has already paid the dieting fee under KRS 64.150 (repealed) for a particular period, there is no authority for the state to take the money turned in for the misdemeanant prisoner and to pay the dieting fee money to the jailers in those counties of less than 75,000 population since that would be a duplication of the payment of the dieting fee, which is not authorized by this section. OAG 81-103 .

Under the literal language of subsection (4) of this section, and under the doctrine of in pari materia, the misdemeanant on work release can be charged the per diem board rate for each day he is actually gainfully employed. OAG 82-313 .

If a prisoner given a work release walks off the job, or returns to jail in violation of any of the work release conditions or rules or is in violation of any other law, the jailer can detain such prisoner after taking it up with the sentencing court and getting the court’s permission to so detain the prisoner up to five (5) days. OAG 84-306 .

Research References and Practice Aids

Kentucky Law Journal.

Bartlett, Authorized Dispositions of Offenders Under The (Prior) New (1972) Kentucky Penal Code, 61 Ky. L.J. 708 (1973).

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

439.180. Department to investigate breaches of parole; may summon witnesses. [Repealed.]

Compiler’s Notes.

This section (3828-5) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.310 .

439.190. Reimprisonment of parolee. [Repealed.]

Compiler’s Notes.

This section (3828-1, 3828-6) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.310 .

439.200. Probation and parole officers. [Repealed.]

Compiler’s Notes.

This section (979b-9; 979b-10; 979b-13; Acts 1948, ch. 119, § 3) was repealed by Acts 1956, ch. 101, § 34. For present law, see KRS 439.310 .

439.210. Functions of probation and parole officers. [Repealed.]

Compiler’s Notes.

This section (979b-11) was repealed by Acts 1956, ch. 101, § 34.

439.220. Information obtained by officers privileged. [Repealed.]

Compiler’s Notes.

This section (979b-12) was repealed by Acts 1956, ch. 101, § 34.

439.230. Functions of department respecting probation and parole. [Repealed.]

Compiler’s Notes.

This section (979b-9) was repealed by Acts 1956, ch. 101, § 34.

439.240. Compact with other states for out-of-state parolee supervision. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 218, § 1) was repealed by Acts 1956, ch. 101, § 34.

439.250. Definitions for KRS 439.250 to 439.560.

As used in KRS 439.250 to 439.560 , unless the context requires otherwise:

  1. “Secretary” means the secretary of the Justice and Public Safety Cabinet;
  2. “Commissioner” means the commissioner of the Department of Corrections;
  3. “Department” means the Department of Corrections;
  4. “Deputy commissioner” means the deputy commissioner of the Office of Adult Institutions or the deputy commissioner of the Office of Community Services and Facilities of the Department of Corrections;
  5. “Board” means the Parole Board created by KRS 439.320 ;
  6. “Community supervision” means:
    1. The placement of a defendant under supervision with conditions imposed by a court for a specified period during which:
      1. Criminal proceedings are deferred without an adjudication of guilt; or
      2. A sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part; or
    2. The placement of an individual under supervision after release from prison or jail, with conditions imposed by the board for a specified period;
  7. “Parole compliance credit” means a credit on a paroled individual’s sentence for program credit, work-for-time credit, educational accomplishment, or meritorious service and shall be calculated pursuant to the applicable provisions in KRS 197.045 and 197.047 ;
  8. “Probation program credit” means a credit on the sentence of a supervised individual who is on probation, probation with an alternative sentence, or conditional discharge for educational credit, program completion credit, or work-for-time credit calculated pursuant to KRS 439.268 ;
  9. “Supervised compliance credit” means a credit on a paroled individual’s sentence for compliance with supervision that shall be calculated pursuant to KRS 439.345 ;
  10. “Positive reinforcement” means any of a wide range of rewards and incentives, including but not limited to awarding certificates of achievement, reducing reporting requirements, deferring a monthly supervision fee payment, removing supervision conditions such as home detention or curfew, or asking the supervised individual to be a mentor to others;
  11. “Probation and parole district supervisor” means the highest ranking field probation or parole administrator in each district; and
  12. “Supervised individual” means an individual placed on probation, probation with an alternative sentence, or conditional discharge by a court or serving a period of parole or post-release supervision from prison or jail.

History. Enact. Acts 1956, ch. 101, § 1; 1958, ch. 126, § 42; 1962, ch. 106, Art. X, § 10; 1966, ch. 255, § 275; 1974, ch. 74, Art. V, §§ 24(16), 28; 1982, ch. 344, § 37, effective July 15, 1982; 1992, ch. 211, § 90, effective July 14, 1992; 2007, ch. 85, § 318, effective June 26, 2007; 2011, ch. 2, § 29, effective June 8, 2011; 2017 ch. 158, § 12, effective June 29, 2017; 2020 ch. 44, § 2, effective July 15, 2020.

NOTES TO DECISIONS

Cited in:

Richardson v. Commonwealth, 2015 Ky. App. LEXIS 118 (Aug. 14, 2015).

439.260. Circuit courts may postpone judgment and probate defendant — Supervision of defendant. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 2; 1962, ch. 234, § 47) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 533.010 , 533.020 .

439.265. Shock probation in felony conviction — Procedure — Exclusions — Comprehensive sex offender presentence evaluation — Exercise of authority.

  1. Subject to the provisions of KRS Chapter 439 and Chapters 500 to 534, any Circuit Court may, upon motion of the defendant made not earlier than thirty (30) days nor later than one hundred eighty (180) days after the defendant has been incarcerated in a county jail following his conviction and sentencing pending delivery to the institution to which he has been sentenced, or delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon terms the court determines. Time spent on any form of release following conviction shall not count toward time required under this section.
  2. The court shall consider any motion filed in accordance with subsection (1) of this section within sixty (60) days of the filing date of that motion, and shall enter its ruling within ten (10) days after considering the motion. The defendant may, in the discretion of the trial court, have the right to a hearing on any motion he may file, or have filed for him, that would suspend further execution of sentence. Any court order granting or denying a motion to suspend further execution of sentence is not reviewable.
    1. During the period in which the defendant may file a motion pursuant to this statute, the sentencing judge, within his or her discretion, may order that the defendant be held in a local detention facility that is not at or above maximum capacity until such time as the court rules on said motion. During this period of detention, and prior to the court’s ruling on said motion, the court may require the defendant to participate in any approved community work program or other forms of work release. Persons held in the county jail pursuant to this subsection shall not be subject to transfer to a state correctional facility until the decision is made not to place the petitioner on shock probation. (3) (a) During the period in which the defendant may file a motion pursuant to this statute, the sentencing judge, within his or her discretion, may order that the defendant be held in a local detention facility that is not at or above maximum capacity until such time as the court rules on said motion. During this period of detention, and prior to the court’s ruling on said motion, the court may require the defendant to participate in any approved community work program or other forms of work release. Persons held in the county jail pursuant to this subsection shall not be subject to transfer to a state correctional facility until the decision is made not to place the petitioner on shock probation.
    2. The provisions concerning community work programs or other forms of work release shall apply only to persons convicted of Class C or Class D felonies, and may be granted only after a hearing at which the Commonwealth’s attorney has the opportunity to present arguments in favor or opposition thereto.
    1. If the defendant is a violent offender as defined in KRS 439.3401 , the sentence shall not be probated under this section. (4) (a) If the defendant is a violent offender as defined in KRS 439.3401 , the sentence shall not be probated under this section.
    2. The sentence shall not be probated under this section if the defendant has been convicted of:
      1. A violation of either KRS 507.040 or 507A.040 and a violation of KRS 189A.010 arising out of the same incident; or
      2. A violation of either KRS 507.050 or 507A.050 and a violation of KRS 189A.010 arising out of the same incident.
  3. If the defendant has been convicted of an offense under KRS 510.050 , 510.080 , 530.020 , 530.064(1)(a), or 531.310 , or criminal attempt to commit any of these offenses under KRS 506.010 , the sentence shall not be suspended, in accordance with KRS 532.045 .
  4. When a defendant has been convicted of a sex crime, as defined in KRS 17.500 , the court shall order a comprehensive sex offender presentence evaluation, unless one has been provided within the past six (6) months, in which case the court may order an update of the comprehensive sex offender presentence evaluation of the defendant conducted by the sex offender treatment program operated or approved by the Department of Corrections or the Sex Offender Risk Assessment Advisory Board. The comprehensive sex offender presentence evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant’s amenability to treatment, and shall be considered by the court in determining whether to suspend the sentence. If the court suspends the sentence and places the defendant on probation, the provisions of KRS 532.045(3) to (7) shall apply.
  5. The authority granted in this section shall be exercised by the judge who imposed sentence on the defendant, unless he is unable to act and it appears that his inability to act should continue beyond the expiration of the term of the court. In such case, the judge who imposed sentence shall assign a judge to dispose of a motion filed under this section, or as prescribed by the rules and practices concerning the responsibility for disposition of criminal matters.
  6. The provisions of this section shall not apply where a sentence of death has been imposed.

HISTORY: Enact. Acts 1972, ch. 169, § 1; 1974, ch. 406, § 329; 1976 (Ex. Sess.), ch. 15, § 7, effective December 22, 1976; 1976 (Ex. Sess.), ch. 14, § 448, effective January 2, 1978; 1982, ch. 153, § 2, effective July 15, 1982; 1984, ch. 26, § 1, effective February 23, 1984; 1990, ch. 497, § 13, effective July 13, 1990; 1992, ch. 463, § 63, effective July 14, 1992; 1994, ch. 94, § 1, effective July 15, 1994; 2000, ch. 401, § 33, effective April 11, 2000; 2000, ch. 401, § 2, effective July 14, 2000; 2006, ch. 182, § 28, effective July 12, 2006; 2017 ch. 90, § 1, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

Since this section seemed to have a worthy purpose of providing for a 30 to 60 day observation period to be served before the sentencing court was required to reach a final decision as to the granting of probation, such limited control by the courts over their judgments did not violate Ky. Const., § 77. Commonwealth v. Williamson, 492 S.W.2d 874, 1973 Ky. LEXIS 534 ( Ky. 1973 ).

2.Application.

KRS Chapter 533 discusses application of probation prior to sentencing, while this chapter discusses application of probation after sentencing, and the two (2) chapters should be read together; since shock probation is one (1) form of probation given general coverage in KRS Chapter 533 and specific coverage in this chapter and the statutory factor that distinguishes shock probation is the timing of the Circuit Court’s order, shock probation is a form of probation; therefore, when Commonwealth in plea agreement agreed that in exchange for defendant’s plea of guilty the Commonwealth would recommend the minimum sentence and take no stand on probation, Commonwealth could not take stand against shock probation regardless of the fact that the recommendation was not binding on the Circuit Court. Wilson v. Commonwealth, 839 S.W.2d 17, 1992 Ky. App. LEXIS 171 (Ky. Ct. App. 1992).

KRS 533.030(5), which applies to shock probation as well as probation, does not require that an order granting shock probation incorporate by reference the conditions of supervision that have been imposed on the defendant who is being granted shock probation pursuant to KRS 439.265 . United States v. Black, 2006 U.S. Dist. LEXIS 1598 (E.D. Ky. Jan. 17, 2006).

3.Invalid Order.

An order of probation was invalid where seven (7) days after commitment to penitentiary inmate filed a motion for probation, which was denied eleven (11) days later, and three (3) months later judge rescinded earlier denial and granted probation. Commonwealth ex rel. Commonwealth ex rel. Hancock v. Melton, 510 S.W.2d 250, 1974 Ky. LEXIS 544 ( Ky. 1974 ).

Trial court did not have the power to increase defendant’s sentence from 10 years in prison to 20 years in prison as a condition of granting defendant’s request for shock probation, and the state Supreme Court reversed the trial court’s judgment revoking defendant’s probation and sentencing defendant to 20 years in prison, and directed the trial court to enter a new order which reinstated the sentence of 10 years in prison which the trial court originally imposed. Stallworth v. Commonwealth, 102 S.W.3d 918, 2003 Ky. LEXIS 83 ( Ky. 2003 ).

4.Suspension After Commitment.

Once defendants are committed to a penal institution, this section is controlling and, thus, Circuit Court Judges may not suspend sentences imposed upon prisoners earlier than 30 days after the prisoner has been delivered to the penitentiary. Commonwealth ex rel. Commonwealth ex rel. Molloy v. Meade, 554 S.W.2d 399, 1977 Ky. App. LEXIS 762 (Ky. Ct. App. 1977).

5.Sentence.

Nothing in this section itself suggests that shock probation may be employed as a vehicle to increase sentence. Galusha v. Commonwealth, 834 S.W.2d 696, 1992 Ky. App. LEXIS 168 (Ky. Ct. App. 1992).

Nothing in this section leads one to the rational belief that a prisoner is privileged to negotiate his release by agreeing to an enhanced sentence. A longer sentence may not supply the quid pro quo for probationary release. A rule which would allow a prisoner to obtain probation in exchange for a longer sentence in the event of revocation would not only result in chaos, but invite intrusion of arbitrary power. Galusha v. Commonwealth, 834 S.W.2d 696, 1992 Ky. App. LEXIS 168 (Ky. Ct. App. 1992).

6.Probation Denied.

Defendant, who pled guilty to sodomizing and sexually abusing his three (3) year-old daughter, was not entitled to shock probation. Porter v. Commonwealth, 869 S.W.2d 48, 1993 Ky. App. LEXIS 177 (Ky. Ct. App. 1993).

7.Standing of Victim’s Widow.

Widow of victim, killed by defendant subsequently convicted of reckless homicide and leaving the scene of an accident and granted shock probation pursuant to KRS 439.265 , did not have standing under either this section or KRS 421.500 , 421.520(3), or 533.030 to petition the court for writ of mandamus directing the trial judge to reconsider the decision granting shock probation; thus, issuance of such writ was reversed and order of trial court granting shock probation was reinstated. Schroering v. McKinney, 906 S.W.2d 349, 1995 Ky. LEXIS 102 ( Ky. 1995 ).

8.Hearing.

This section makes no provision for the Commonwealth to mandate a hearing to present arguments prior to the trial court’s ruling on a motion for shock probation. The legislature conferred the right to request a hearing to the defendant, and then only if the trial court, in its discretion, agrees to one. Schroering v. McKinney, 906 S.W.2d 349, 1995 Ky. LEXIS 102 ( Ky. 1995 ).

9.Court Order.
10.—Review.

The provision of subsection (2) of this section that any court order granting or denying a motion to suspend further execution of a sentence is not reviewable refers to a review on the merits of an order granting or denying a motion for probation and does not deprive the appellate court of its power to determine whether an order was within the jurisdiction of the Circuit Court as being within the authority granted by the statute. Terhune v. Commonwealth, 907 S.W.2d 779, 1995 Ky. App. LEXIS 177 (Ky. Ct. App. 1995).

11.Motion for Probation.
12.—Time.

The plain and unambiguous language of subsection (1) of this section expresses that the operation of the time limits for filing a motion for shock probation is based on the date when a defendant is delivered into the hands of his jailer, not when he beings to serve the particular sentence for which he was convicted. Terhune v. Commonwealth, 907 S.W.2d 779, 1995 Ky. App. LEXIS 177 (Ky. Ct. App. 1995).

Circuit court erred in granting defendant's motion for shock probation because the court had lost jurisdiction to grant the motion inasmuch as the operation of the time limit for filing a motion for shock probation was based on the date when defendant was delivered into the hands of his jailer, not when he began to serve the particular sentence for which he was convicted, and defendant's motion was filed 204 days after the statutory time began to run. Commonwealth v. Martin, 2018 Ky. App. LEXIS 88 (Ky. Ct. App. Feb. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 891 (Ky. Ct. App. Feb. 23, 2018).

60-day timeframe for considering the motion and the 10-day timeframe for entering an order are, individually, merely a scheduling guideline. The overall 70-day timeframe is the one that decides jurisdiction. Commonwealth v. Reed, 577 S.W.3d 467, 2019 Ky. App. LEXIS 69 (Ky. Ct. App. 2019).

On an issue of first impression issue, as long as an order was entered within 70 days after the motion was filed, the order was valid. Since the order in this case was entered within the 70-day time frame, it was valid even though entered 45 days after the hearing on the motion. Commonwealth v. Reed, 577 S.W.3d 467, 2019 Ky. App. LEXIS 69 (Ky. Ct. App. 2019).

13.—Subsequent Sentence.

The legislature has chosen not to deny a defendant consideration of shock probation on a second or subsequent sentence, and the plain and unambiguous language of subsection (1) of this section refers to the 30-to-180-day time period following a defendant’s conviction and sentencing, placing no qualifications on whether that sentence was a subsequent sentence. Terhune v. Commonwealth, 907 S.W.2d 779, 1995 Ky. App. LEXIS 177 (Ky. Ct. App. 1995).

The decision of whether to grant shock probation to a defendant who has already served a portion of a previous sentence is left to the sound discretion of the trial judge. Terhune v. Commonwealth, 907 S.W.2d 779, 1995 Ky. App. LEXIS 177 (Ky. Ct. App. 1995).

14.Jurisdiction.

The trial court acted beyond its jurisdictional authority in granting probation under this section, in that the ten (10) day time limit of CR 59.05 had expired. Commonwealth v. Gross, 936 S.W.2d 85, 1996 Ky. LEXIS 105 ( Ky. 1996 ).

Because defendant did not file a motion for shock probation pursuant to KRS 439.265 , and indeed could not as part of defendant’s plea agreement, and because, pursuant to RCr 8.10, the circuit court could not accept the plea and then circumvent its terms by its own actions, the circuit court lacked jurisdiction to order a hearing or consider shock probation; therefore, a writ of prohibition was appropriate. Hidalgo v. Commonwealth, 290 S.W.3d 56, 2009 Ky. LEXIS 143 ( Ky. 2009 ).

Trial court erred in granting defendant's motion for shock probation because it lacked jurisdiction to enter the order where it did not strictly comply with the statutory time limitations, the order was entered more than 320 days after the filing of the original motion, an order seeking information, although within the 10-day time period, did not toll the time for entry of a ruling where it was clearly not a ruling on the motion for shock probation, it did not grant or deny the motion, but merely ordered information to assist the court in making its decision. Commonwealth v. Settles, 488 S.W.3d 626, 2016 Ky. App. LEXIS 60 (Ky. Ct. App. 2016).

Commonwealth’s argument that appellee was not entitled to shock probation because he was convicted of reckless homicide could not be reviewed where the circuit court had not deemed appellee’s act to be violent so as to prohibit shock probation, that was a decision on the merits, and thus, reviewing that decision was prohibited by Ky. Rev. Stat. Ann. § 439.265(2). However, the argument that the court was without jurisdiction to grant shock probation because the order was entered more than 10 days after the shock probation hearing was reviewable as it concerned jurisdiction. Commonwealth v. Reed, 577 S.W.3d 467, 2019 Ky. App. LEXIS 69 (Ky. Ct. App. 2019).

Cited in:

Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980); Clayborn v. Commonwealth, 701 S.W.2d 413, 1985 Ky. App. LEXIS 702 (Ky. Ct. App. 1985).

Opinions of Attorney General.

The General Assembly in this section intended for shock probation to be available only to those convicted felons who have served at least 30 days in a state prison and not a county jail; this opinion is supported by the theory behind this section that some convicts who have committed serious crimes (usually young first offenders), after confinement in a state prison for 30 days, will be so shocked by the confinement in the prison at hard labor that they will not get into trouble again. However, if a Circuit Court placed a convicted felon in the county jail, it would clearly be within the Circuit Court’s power to subsequently probate that convicted felon within 10 days. OAG 83-146 .

Shock probation for persons convicted of a DUI vehicular homicide does not constitute an exercise of absolute and arbitrary power in violation of the Kentucky Constitution, although it is questionable as public policy. OAG 11-005 , 2011 Ky. AG LEXIS 215 (2011).

Research References and Practice Aids

Cross-References.

Probation and conditional discharge under Penal Code, KRS 532.040 and 533.010 to 533.050 .

Kentucky Law Journal.

Bartlett, Authorized Disposition of Offenders Under The (Prior) New (1972) Kentucky Penal Code, 61 Ky. L.J. 708 (1973).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

439.267. Shock probation in misdemeanor convictions — Procedure — Exercise of authority — Availability for sexual offenders.

  1. Subject to the provisions of KRS Chapter 439 and Chapters 500 to 534, any District Court, or any Circuit Court with respect to a defendant convicted in Circuit Court of a misdemeanor, may, upon motion of the defendant made not earlier than thirty (30) days after the defendant has been delivered to the keeper of the institution to which he has been sentenced, suspend the further execution of the sentence and place the defendant on probation upon terms as the court determines.
  2. The court shall consider any motion filed in accordance with subsection (1) of this section within sixty (60) days of the filing date of that motion, and shall enter its ruling within ten (10) days after considering the motion. The defendant may, in the discretion of the trial court, have the right to a hearing on any motion he may file, or have filed for him, that would suspend further execution of sentence. Any court order granting or denying a motion to suspend further execution of sentence is not reviewable.
  3. The authority granted in this section shall be exercised by the judge who imposed sentence on the defendant, unless he is unable to act and it appears that his inability to act should continue beyond the expiration of the term of the court. In this case, the judge who imposed sentence shall assign a judge to dispose of a motion filed under this section, or as prescribed by the rules and practices concerning the responsibility for disposition of criminal matters.
  4. If the defendant has been convicted of a misdemeanor offense under KRS Chapter 510, or criminal attempt to commit any of these offenses under KRS 506.010 , prior to considering the motion to suspend the sentence, the court may, for a misdemeanor offense specified herein, and shall, for any felony offense specified in this subsection order an evaluation of the defendant to be conducted by the sex offender treatment program operated or approved by the Department of Corrections or the Department for Behavioral Health, Developmental and Intellectual Disabilities. The evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant’s amenability to treatment, and shall be considered by the court in determining whether to suspend the sentence. If the court suspends the sentence and places the defendant on probation, the provisions of KRS 532.045(3) to (7) shall apply.

History. Enact. Acts 1982, ch. 153, § 1, effective July 15, 1982; 1994, ch. 94, § 2, effective July 15, 1994; 2012, ch. 146, § 117, effective July 12, 2012; 2012, ch. 158, § 75, effective July 12, 2012.

Legislative Research Commission Notes.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Failure to Pay Fines and Costs.

Having elected to grant the defendant shock probation under this section on the condition that she pay her fines and costs and after having extended the time for payment of this sum for a month after her release, the District Court was required to make an inquiry into the reasons for defendant’s failure to pay before it could recommit the defendant for failure to pay the amount due. Mauk v. Commonwealth, 700 S.W.2d 803, 1985 Ky. App. LEXIS 695 (Ky. Ct. App. 1985).

439.268. Probation program credits.

  1. Any supervised individual on probation, probation with an alternative sentence, or conditional discharge shall receive credit on his or her sentence for:
    1. Successfully receiving a High School Equivalency Diploma or a high school diploma, a college degree, a completed vocational or technical education program, or a correspondence postsecondary education program which results in a diploma or degree, as defined and approved by the department in the amount of ninety (90) days per diploma, degree, or vocational or technical education program completed;
    2. Successfully completing a drug treatment program, evidence-based program, or any other promising practice or life skills program approved by the department, in the amount of not more than ninety (90) days for each program completed. The department shall determine criteria to establish whether a life skills or promising practice program is eligible for probation program credits. Programs shall demonstrate learning of skills necessary for reintegration into the community to minimize barriers to successful reentry. Approval of programs shall be subject to review by the department; and
    3. Work-for-time credit, which shall be applied for any public employment, at the same rates as calculated pursuant to KRS 197.047 .
  2. Probation program credits earned pursuant to subsection (1) of this section shall be applied to reduce the period of probation, probation with an alternative sentence, or conditional discharge ordered by the sentencing court.
  3. No less than ninety (90) days before the projected date of final discharge, the department shall notify the sentencing court of probation program credits awarded pursuant to this section and that the period of supervision is reduced by the number of days of probation program credits earned by the supervised individual, and the impending discharge from supervision. If the sentencing court, upon receiving such notice does not take any action pursuant to KRS 533.020 , the offender shall be discharged.
  4. The department may promulgate administrative regulations for the awarding of probation program credits.
  5. For supervised individuals on supervision prior to July 15, 2020, probation program credits shall begin to accrue on the first day of the first month after July 15, 2020.

HISTORY: 2020 ch. 44, § 1, effective July 15, 2020.

439.270. Period of probation. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 3) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 533.020 .

439.280. Investigation by probation officer. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 4) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 532.050 .

439.290. Conditions of probation. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 5) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 533.030 .

439.300. Arrest of probationer — Revocation of probation, when. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 6) was repealed by Acts 1974, ch. 406, § 336, effective January 1, 1975. For present law, see KRS 533.050 .

439.302. Commission on Correction and Community Service — Appointment — Terms — Expenses. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1963 (2nd Ex. Sess.), ch. 4, § 1; 1974, ch. 74, Art. V, § 29; 1976, ch. 179, § 1; 1978, ch. 154, § 41, effective June 17, 1978; 1978, ch. 155, § 158, effective June 17, 1978; 1982, ch. 344, § 38, effective July 15, 1982; 1984, ch. 401, § 4, effective July 13, 1984; 1992, ch. 211, § 91, effective July 14, 1992; 1994, ch. 227, § 10, effective July 15, 1994; 2000, ch. 456, § 1, effective July 14, 2000) was repealed by 2007 Acts, ch. 85, § 334, effective June 26, 2007.

439.304. Meetings, powers, and duties of commission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1963 (2nd Ex. Sess.), ch. 4, § 2; 1974, ch. 74, Art. V, § 24(14); 1976, ch. 179, § 2; 1982, ch. 344, § 39, effective July 15, 1982; 1992, ch. 211, § 92, effective July 14, 1992; 1994, ch. 179, § 1, effective July 15, 1994; 1994, ch. 418, § 10, effective July 15, 1994) was repealed by 2007 Acts, ch. 85, § 334, effective June 26, 2007.

439.306. Authority of commission and members. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1963 (2nd Ex. Sess.), ch. 4, § 3; 1982, ch. 344, § 40, effective July 15, 1982; 1992, ch. 211, § 93, effective July 14, 1992) was repealed by 2007 Acts, ch. 85, § 334, effective June 26, 2007.

439.310. Administration of probation and parole laws.

The commissioner, with the approval of the secretary and the Governor, shall appoint a person charged with the administration of probation and parole laws, who, with the approval of the commissioner, shall appoint a number of probation and parole officers and other employees sufficient to administer the provisions of KRS 439.250 to 439.560 ; but no employee shall be appointed except in the manner hereinafter provided. The person charged with the administration of probation and parole laws shall have attained at least a bachelor’s degree from an accredited college, and, in addition, shall be a person with training and experience in probation, parole or other related form of welfare work.

History. Enact. Acts 1956, ch. 101, § 7, effective May 18, 1956; 1974, ch. 74, Art. V, § 26; 1980, ch. 208, § 1, effective July 15, 1980; 1982, ch. 344, § 41, effective July 15, 1982; 1992, ch. 211, § 94, effective July 14, 1992.

Opinions of Attorney General.

The position of probation and parole officer in the state department of welfare must be considered a state office or deputy state office which would make it incompatible with the office of mayor, which is a municipal office. OAG 60-57 .

Probation and parole officers when engaged in the discharge of official duties involving probation and parole violators or entailing the maintenance of custody over any prisoner, or when necessary for their protection in the discharge of their official duties, are empowered by KRS 527.020 to carry concealed deadly weapons on or about their persons. OAG 75-87 .

Research References and Practice Aids

Cross-References.

Department of Corrections, KRS 196.075 .

439.3101. Administrative regulations requiring supervision and treatment in accordance with evidence-based practices.

  1. The department shall promulgate administrative regulations that require the supervision and treatment of supervised individuals in accordance with evidence-based practices.
  2. The administrative regulations shall, at a minimum, include:
    1. The administration of a validated risk and needs assessment on all supervised individuals at regular intervals to determine their criminal risk factors and to identify intervention targets;
    2. Use of assessment scores and other objective criteria throughout the period of community supervision to determine the risk level and program needs of each supervised individual;
    3. Caseload size guidelines that are based on supervised individuals’ risk levels and take into account department resources and employee workload and prioritization of supervision and program resources for supervised individuals who are at higher risk to reoffend;
    4. Definitions of various risk levels to apply to supervised individuals during the period of community supervision;
    5. Development of a case plan for each individual who is assessed to be moderate-to-high risk based on the risk and needs assessment, that targets the criminal risk factors identified in the assessment, is responsive to individual characteristics, and provides supervision of offenders according to that case plan;
    6. Implementation of swift, certain, proportionate, and graduated sanctions that a probation and parole officer shall apply in response to a supervised individual’s noncompliant behaviors; and
    7. Establishment of protocols and standards that assess the degree to which policies, procedures, programs, interventions, and practices relating to offender recidivism reduction, whether utilized by the department or contract or referral agencies, are evidence-based.

History. Enact. Acts 2011, ch. 2, § 51, effective June 8, 2011.

439.3102. Training and professional development for department personnel concerning implementation of evidence-based practices.

  1. The department shall provide its employees with intensive initial and on-going training and professional development services to support the implementation of evidence-based practices.
  2. The training and professional development services shall include assessment techniques, case planning, risk reduction and intervention strategies, effective communication skills, cognitive-behavioral treatment, substance abuse, and other topics identified by the department or its employees.

History. Enact. Acts 2011, ch. 2, § 52, effective June 8, 2011.

439.3103. Annual report on efforts to implement evidence-based practices to reduce recidivism.

  1. By December 1 of each year, beginning in 2012, the department shall submit to the Governor, the General Assembly, and the Chief Justice a comprehensive report on its efforts to implement evidence-based practices to reduce recidivism. The report shall include at a minimum:
    1. The percentage of supervised individuals being supervised in accordance with evidence-based practices;
    2. The percentage of state moneys expended by the department for programs that are evidence based, and a list of all programs with identification of which are evidence based;
    3. Specification of supervision policies, procedures, programs, and practices that were created, modified, or eliminated; and
    4. The department’s recommendations for resource allocation, and any additional collaboration with other state, regional, or local public agencies, private entities, or faith-based and community organizations.
  2. The department shall make the full report and an executive summary available to the general public on its Web site.

History. Enact. Acts 2011, ch. 2, § 53, effective June 8, 2011.

439.3104. Duties of department concerning risk and needs assessment instrument.

The department shall:

  1. Conduct an initial administration of a validated risk and needs assessment instrument on an individual upon intake to community supervision, unless an initial assessment has been previously conducted within a reasonable time period as specified in department regulations;
  2. While the individual is on community supervision, readminister the risk and needs assessment at regular intervals as determined by administrative regulations promulgated pursuant to KRS 439.3101 ;
  3. Apply the results of the risk and needs assessment to:
    1. Establish an appropriate level of supervision;
    2. Determine the content of a case plan that addresses the supervised individual’s criminal needs; and
    3. Respond to compliant and noncompliant behavior; and
  4. Promulgate administrative regulations to determine appropriate levels of supervision, guidelines for case planning, and guidelines for responses to specified behavior by supervised individuals.

History. Enact. Acts 2011, ch. 2, § 54, effective June 8, 2011.

439.3105. Administrative caseload supervision program for supervised offenders — Administrative regulations.

  1. The department shall promulgate administrative regulations in accordance with the provisions of this section to establish an administrative caseload supervision program for supervised individuals whose results from a risk and needs assessment indicate that they are low-risk offenders.
  2. The administrative caseload supervision program shall consist of monitoring supervised individuals to ensure that they have not engaged in new criminal activity and are fulfilling financial obligations to the court.
  3. If a supervised individual on administrative caseload supervision:
    1. Does not fulfill his or her restitution or other financial obligations to the court, he or she may be placed on a higher level of supervision at the discretion of the department;
    2. Engages in criminal activity, he or she may be prosecuted, revoked, or placed on a higher level of supervision; or
    3. Exhibits signs or symptoms of a substance abuse disorder, he or she may be assessed by the Administrative Office of the Courts drug court personnel for consideration of admission into drug court.
  4. A supervised individual on a higher level of supervision who demonstrates a reduction in criminal risk factors upon reassessment and who has achieved the goals established in his or her case plan may be placed on administrative caseload supervision at the discretion of the department.
  5. A supervised individual on a higher level of supervision shall presumptively be placed on administrative supervision if he or she has:
    1. Completed twelve (12) months of community supervision;
    2. Not violated the terms of his or her community supervision in the previous twelve (12) months;
    3. Fulfilled all restitution and other financial obligations to the court;
    4. Demonstrated a reduction in criminal risk factors upon reassessment; and
    5. Achieved the goals established in his or her case plan.
  6. If the conditions or level of community supervision of a probationer are modified under this section, the probation and parole officer shall file a copy of the modified conditions or level with the sentencing court.
  7. The department may establish by administrative regulation conditions for overriding presumptive administrative supervision.

History. Enact. Acts 2011, ch. 2, § 58, effective June 8, 2011.

439.3106. Sanctions to which supervised individuals are subject.

  1. Supervised individuals shall be subject to:
    1. Violation revocation proceedings and possible incarceration for failure to comply with the conditions of supervision when such failure constitutes a significant risk to prior victims of the supervised individual or the community at large, and cannot be appropriately managed in the community; or
    2. Sanctions other than revocation and incarceration as appropriate to the severity of the violation behavior, the risk of future criminal behavior by the offender, and the need for, and availability of, interventions which may assist the offender to remain compliant and crime-free in the community.
    1. At a final revocation hearing, the board may subject a supervised individual to a supervision continuation sanction for a period of up to nine (9) months, or until the completion of the individual’s sentence, whichever is shorter. (2) (a) At a final revocation hearing, the board may subject a supervised individual to a supervision continuation sanction for a period of up to nine (9) months, or until the completion of the individual’s sentence, whichever is shorter.
    2. Individuals under a supervision continuation sanction shall be placed in:
      1. A state or local correctional or detention facility;
      2. An inpatient program for substance abuse treatment which has been approved by the department; or
      3. Notwithstanding KRS 532.100 , a halfway house, when the individuals have been classified by the department as community custody.
    3. Individuals under a supervision continuation sanction shall be considered inmates for the duration of the supervision continuation sanction period. If an individual under a supervision continuation sanction successfully completes the sanction and has not completed the individual’s sentence, the individual shall then be considered a supervised individual.
      1. When a supervised individual has successfully completed the supervision continuation sanction and has not completed the individual’s sentence, the individual shall be: (d) 1. When a supervised individual has successfully completed the supervision continuation sanction and has not completed the individual’s sentence, the individual shall be:
        1. Reinstated to supervision in the community without another hearing before the board; and
        2. Subject to the same supervision conditions that the individual had been under at the time of the probable cause revocation hearing.
      2. When a supervised individual does not successfully complete a supervision continuation sanction and has not completed the individual’s sentence, the individual shall be returned to the board for revocation proceedings.

History. Enact. Acts 2011, ch. 2, § 59, effective June 8, 2011; 2019 ch. 137, § 1, effective June 27, 2019; 2020 ch. 44, § 3, effective July 15, 2020.

NOTES TO DECISIONS

1.Application.

In revoking defendant’s probation, the trial court appropriately considered the Kentucky General Assembly’s wishes espoused in KRS 439.3106 , which became effective the same day as KRS 439.551 ; the court stated that, due to defendant’s failure to comply with the conditions of probation during the first few hours of probation, and due to the violent nature of the crimes committed, revocation of probation was the appropriate sanction for the probation violation. Jarrell v. Commonwealth, 384 S.W.3d 195, 2012 Ky. App. LEXIS 233 (Ky. Ct. App. 2012).

In a probation revocation case, a trial court did not commit palpable error by failing to consider graduated sanctions under KRS 439.3106 where testimonial evidence showed that appellant had been a cocaine addict for 20 years, he had been through 4 treatment programs, and he had exhausted the treatment options; even though appellant contended that the Commonwealth failed to show that he was a threat to the community, § 439.3106 did not require the trial court to make specific findings of fact. KRS 439.3107 did not apply to this case, and palpable error review was necessary because claim under KRS 439.3106 was not preserved for review on appeal. Kaletch v. Commonwealth, 396 S.W.3d 324, 2013 Ky. App. LEXIS 49 (Ky. Ct. App. 2013).

Plain language of the statute lends itself to only one conclusion, both the trial court and the Department of Corrections' (DOC) officers must assess a probationer's conduct in light of the statute and proceed in accordance with the statute; the location of the statute in the “Probation and Parole” chapter in no way limits its application to the DOC. Commonwealth v. Andrews, 448 S.W.3d 773, 2014 Ky. LEXIS 607 ( Ky. 2014 ).

By requiring trial courts to determine that a probationer is a danger to prior victims or the community at large and that he/she cannot be appropriately managed in the community before revoking probation, the legislature furthers the objectives of the graduated sanctions schema to ensure that probationers are not being incarcerated for minor probation violations. Commonwealth v. Andrews, 448 S.W.3d 773, 2014 Ky. LEXIS 607 ( Ky. 2014 ).

Application of the statute allows the trial court to conclude with some certainty that the imposition of some other accountability measure would be fruitless, as the probationer both poses a risk and is not manageable in the community; the statute requires trial courts to consider whether a probationer's failure to abide by a condition of supervision constitutes a significant risk to prior victims or the community and whether the probationer cannot be managed in the community before revocation. Commonwealth v. Andrews, 448 S.W.3d 773, 2014 Ky. LEXIS 607 ( Ky. 2014 ).

Trial court acted within its discretion in revoking defendant's probation because it plainly considered a variety of factors, and specifically considered the criteria in the statute; While the Public Safety and Offender Accountability Act, reflects a new emphasis in imposing and managing probation, it does not upend the trial court's discretion in matters of probation revocation, provided that discretion is exercised consistent with statutory criteria. Commonwealth v. Andrews, 448 S.W.3d 773, 2014 Ky. LEXIS 607 ( Ky. 2014 ).

Revocation of defendant’s probation was inappropriate because the trial court erred in failing to evaluate the other statutory criteria set forth in KRS 439.3106 and in relying solely on the element of failure to report; further, defendant’s new alleged criminal behavior was not violent. The trial court’s conviction that reporting was the most important condition of probation was unsupported by the law. Carter v. Commonwealth, 2013 Ky. App. LEXIS 41 (Ky. Ct. App. Feb. 22, 2013), review denied, ordered not published, 2015 Ky. LEXIS 22 (Ky. Feb. 11, 2015).

Trial court on remand was to conduct a hearing to determine if defendant was a danger to prior victims or the community at large and could not be appropriately managed in the community before revoking conditional discharge because the court's order of revocation of conditional discharge was silent as to the imposition of graduated sanctions. Williams v. Commonwealth, 462 S.W.3d 407, 2015 Ky. App. LEXIS 61 (Ky. Ct. App. 2015).

Trial court's decision revoking probation was reversed where the record did not indicate whether any measures other than incarceration were considered, the trial court failed to consider whether the probationer's use of drugs and failure to report a change of address made him a significant risk to the community and that he could not be managed in the community, and thus, the trial court had not properly applied Ky. Rev. Stat. Ann. § 439.3106 . Poston v. Commonwealth, 2015 Ky. App. LEXIS 70 (Ky. Ct. App. May 22, 2015), review denied, ordered not published, 2015 Ky. LEXIS 2070 (Ky. Dec. 10, 2015).

Trial court abused its discretion in revoking defendant's pretrial diversion and sentencing him to two years' imprisonment in accordance with his original sentence, even though there was a zero-tolerance provision and he admitted to violating the conditions of his diversion, because there was no evidence in the record that defendant was a danger to a prior victim or to the community and he could not be appropriately managed in the community as required by this section and 501 Ky. Admin. Regs. 6:250. The evidence showed that the diverted charge was defendant's first offense, the record was devoid of any evidence that he would not benefit from drug treatment, and his probation officer confirmed that he was cooperative. Helms v. Commonwealth, 475 S.W.3d 637, 2015 Ky. App. LEXIS 83 (Ky. Ct. App. 2015).

Zero-tolerance provisions in diversion agreements are barred but do so only because such a holding would admittedly render our opinion subject to attack under the separation of powers doctrine. However, a judge's commitment to a predetermined outcome upon a violation of a condition of diversion without consideration of this section is an abuse of discretion. Helms v. Commonwealth, 475 S.W.3d 637, 2015 Ky. App. LEXIS 83 (Ky. Ct. App. 2015).

Circuit court erred in voiding defendant's pretrial diversion and sentencing him to two years in prison because it incorrectly concluded that the criteria for the revocation of probation was inapplicable to the voidance of diversion; by operation of the unambiguous language of Ky. Rev. Stat. Ann. § 533.256(2), the new criteria for the revocation of probation set out in § 439.3106 also applies to the voidance of diversion. Richardson v. Commonwealth, 494 S.W.3d 495, 2015 Ky. App. LEXIS 118 (Ky. Ct. App. 2015).

Circuit court properly revoked defendant’s probation because the child support statute did not require the court to impose a lesser sanction where there was no dispute that defendant failed to make his required child support payments for 10 years, for which the circuit court found that defendant offered no credible explanation, both the child and the Commonwealth were victims of defendant’s failure to provide, probation had been imposed more than 12 years prior, was extended on at least two occasions, defendant promised at every opportunity to have “a plan” to make payments, but failed to make payments, failed to maintain employment, and failed to maintain a current address with the child support office. Embry v. Commonwealth, 561 S.W.3d 360, 2018 Ky. App. LEXIS 122 (Ky. Ct. App. 2018).

Trial court did not abuse its discretion in revoking defendant’s probation and sentencing him to his remaining three-year term as the Commonwealth’s evidence was more than sufficient to support revocation of probation because defendant admitted to using controlled substances while under supervision; even if a single positive drug test was insufficient to warrant revocation, defendant expressly refused to enroll in a long-term drug treatment program as directed by the court; his payment of restitution had been inconsistent even since his most-recent release; and he absconded from supervision for nearly seven years. Hall v. Commonwealth, 566 S.W.3d 578, 2018 Ky. App. LEXIS 294 (Ky. Ct. App. 2018).

Trial court erred in revoking defendant’s probation because, while application of the fugitive disentitlement doctrine would deprive defendant of her constitutional right to seek redress on appeal, defendant offered nothing to contradict the testimony that, at a minimum, she failed to respond/report to her Ohio probation officer as directed, and the trial court erred by stating that the statute at issue need not be considered by trial courts when revocation proceedings stemmed from absconding supervision inasmuch as there was no such exception. Hess v. Commonwealth, 2019 Ky. App. LEXIS 12 (Ky. Ct. App. Feb. 1, 2019), rev'd, 2021 Ky. LEXIS 144 (Ky. June 17, 2021).

Trial court erred in setting aside defendant’s felony diversion because it failed to consider either Ky. Rev. Stat. Ann. § 533.256 or Ky. Rev. Stat. Ann. § 439.3106 in determining whether to void defendant’s pretrial diversion; as the trial court apparently did not contemplate either statute prior to its decision, the matter was remanded for consideration of those statutes should the Commonwealth continue to seek voidance of defendant’s pretrial diversion. Moreial Lamaur Zanders v. Commonwealth, 572 S.W.3d 76, 2019 Ky. App. LEXIS 27 (Ky. Ct. App. 2019).

In a case in which defendant pleaded guilty to felony flagrant non-support and then repeatedly failed to make payments and to abide by the orders of the trial court and conditions of her conditional discharge, the circuit court palpably erred in revoking defendant’s conditional discharge because it failed to consider whether her violations were a significant risk to her prior victim or the community at large, and whether she could be appropriately managed in the community. Fazzari v. Commonwealth, 2019 Ky. App. LEXIS 70 (Ky. Ct. App. Apr. 26, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 697 (Ky. Ct. App. Apr. 26, 2019).

Trial court properly revoked defendant’s probation because incarceration was a possibility where the statute at issue permitted, but did not require, the court to employ lesser sanctions, the facts were stipulated—the only issue was what sanction would be imposed—and defendant did not seek to present additional testimonial or documentary evidence, and the record supported the trial court’s decision inasmuch as, while on probation, defendant repeatedly used drugs and submitted falsified paperwork to the drug court. New v. Commonwealth, 598 S.W.3d 88, 2019 Ky. App. LEXIS 134 (Ky. Ct. App. 2019).

Defendant’s failure to pay restitution should not have been considered by the trial court when determining whether defendant’s pretrial diversion should have been revoked because the restitution order failed to specify when defendant should make payments, how frequently, in what amount, and to whom and there could be no willful failure to comply given such deficiencies. Compise v. Commonwealth, 597 S.W.3d 175, 2020 Ky. App. LEXIS 26 (Ky. Ct. App. 2020).

2.Findings.

Trial court did not commit palpable error by revoking defendant's diversion because her felony pretrial diversion agreement clearly authorized it to revoke or modify any condition in the agreement during the diversion period, it was not statutorily required to make specific findings of fact, and it went through the history of the case, defendant's numerous violations of the conditions, and the various chances she received to comply with the conditions. Stilgenbauer v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1039 (Ky. Ct. App. Sept. 26, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1663 (Ky. June 3, 2015).

In revoking defendant's probation, the trial court did not articulate that it had considered Ky. Rev. Stat. Ann. § 439.3106 . The plain language of the statute lent itself to only one conclusion—both the trial court and the Department of Corrections' officers were required to assess defendant's conduct in light of § 439.3106 and proceed in accordance with the statute. Brann v. Commonwealth, 469 S.W.3d 429, 2015 Ky. App. LEXIS 122 (Ky. Ct. App. 2015).

Trial court must consider when revoking probation whether a probationer is a danger to his or her victim or the community at large and whether a probationer cannot be appropriately managed in the community; the trial court in this case never addressed such, the trial court's offhanded statements did not reach the level statutorily required, and the written order entered in this case did not reference the statute or its elements. Blankenship v. Commonwealth, 494 S.W.3d 506, 2015 Ky. App. LEXIS 178 (Ky. Ct. App. 2015).

Trial courts must consider and make findings, oral or written, comporting with the statute. Blankenship v. Commonwealth, 494 S.W.3d 506, 2015 Ky. App. LEXIS 178 (Ky. Ct. App. 2015).

Since Ky. Rev. Stat. Ann. § 439.3106 makes no distinction between probation or parole, the Court of Appeals of Kentucky finds as a matter of law that the requirements of § 439.3106 must apply to the Kentucky State Parole Board as well as to the courts. The Board's failure to make express findings on the record, oral or otherwise, demonstrating that the Board considered the requirements of § 439.3106, before their final revocation of an inmate's parole, is a fatal flaw. Murrell v. Ky. Parole Bd., 531 S.W.3d 503, 2017 Ky. App. LEXIS 618 (Ky. Ct. App. 2017).

Circuit court's failure to make the required statutory findings required constituted palpable error; although the circuit court made a finding that defendant could not be managed in the community, it did not make a finding that he was a significant risk to the community, and both findings were required, and the circuit court also did not make the required findings under other case law, and remand was required. Burnett v. Commonwealth, 538 S.W.3d 322, 2017 Ky. App. LEXIS 657 (Ky. Ct. App. 2017).

Circuit court erred in voiding defendant's pretrial diversion and imposing her three-year sentence for flagrant nonsupport because, although the court did make a finding that defendant could not be effectively managed in the community, it failed to make any findings as to whether defendant posed a danger to her prior victims or to the community, and there was a “substantial possibility” that the result of defendant's voidance hearing would have been different without the alleged error. Lainhart v. Commonwealth, 534 S.W.3d 234, 2017 Ky. App. LEXIS 689 (Ky. Ct. App. 2017).

Circuit court order voiding defendant's diversion agreement was remanded where although it made a finding that defendant could not be managed in the community, it had not made a finding that he was a significant risk to the community as required by Ky. Rev. Stat. Ann. § 439.3106(1). Price v. Commonwealth, 534 S.W.3d 805, 2017 Ky. App. LEXIS 685 (Ky. Ct. App. 2017).

Trial court was not required to make written findings when probation was revoked in a case because the probationer agreed to the revocation of his probation without a hearing as part of an agreement to dismiss the new charges that were filed against the probationer. Howard v. Commonwealth, 2018 Ky. App. LEXIS 102 (Ky. Ct. App. Mar. 16, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 781 (Ky. Ct. App. Mar. 16, 2018).

Trial court erred in revoking defendant’s conditional discharge because its written order made no mention of the statute or its criteria, and the trial court’s failure to assess defendant’s conduct in light of the statute constituted palpable error. Fazzari v. Commonwealth, 2019 Ky. App. LEXIS 70 (Ky. Ct. App. Apr. 26, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 697 (Ky. Ct. App. Apr. 26, 2019).

Trial courts, in determining whether to revoke an individual’s conditional discharge, must consider and issue specific findings as to whether the individual’s failure to comply with terms of his or her conditional discharge constitute a significant risk to his or her prior victims or the community at large, and cannot be appropriately managed in the community. Fazzari v. Commonwealth, 2019 Ky. App. LEXIS 70 (Ky. Ct. App. Apr. 26, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 697 (Ky. Ct. App. Apr. 26, 2019).

Trial court failed to make the mandatory findings pursuant to this section prior to revoking defendant’s probation, and therefore the revocation was vacated, because the only mention of the statutory criteria could be found in the written orders that were preprinted forms that the trial court completed in writing, and the trial court did not include any other findings, other than the conclusory statements on the preprinted forms, related to the statutory criteria. Walker v. Commonwealth, 588 S.W.3d 453, 2019 Ky. App. LEXIS 146 (Ky. Ct. App. 2019).

Court of appeals erred in reversing and remanding the trial court’s order revoking defendant’s probation because the trial court specifically considered when it made oral and written findings; the trial court’s oral findings explained the reasons defendant’s probation was revoked, and in its written order, the trial court spelled out the required language under subsection (1). Commonwealth v. Gilmore, 587 S.W.3d 627, 2019 Ky. LEXIS 432 ( Ky. 2019 ).

Appellate court looks to both the written and oral findings in conjunction with one another and not separately in a vacuum; therefore, it must look at the trial court’s findings, both in open court and in its written order, to determine whether subsection (1) and due process requirements were met. Commonwealth v. Gilmore, 587 S.W.3d 627, 2019 Ky. LEXIS 432 ( Ky. 2019 ).

Trial court erred because it failed to make the requisite findings of fact prior to ordering revocation, and though the trial court made a fact-finding error in its order revoking defendant’s probation, defendant could not invoke the rules of the legal system, abscond from that same system, and expect to be rewarded; absconsion did not excuse the trial court from fulfilling its statutory requirements and making the findings required under subsection (1)(a). Commonwealth v. Hess, 2021 Ky. LEXIS 320 (Ky. June 17, 2021).

439.3107. System of graduated sanctions for violations of conditions of community supervision — Administrative regulations.

  1. The department shall, by January 1, 2012, adopt a system of graduated sanctions for violations of conditions of community supervision. Notwithstanding KRS Chapter 533, the system shall set forth a menu of presumptive sanctions for the most common types of supervision violations, including but not limited to: failure to report; failure to pay fines, fees, and victim restitution; failure to participate in a required program or service; failure to complete community service; violation of a protective or no contact order; and failure to refrain from the use of alcohol or controlled substances. The system of sanctions shall take into account factors such as the severity of the current violation, the supervised individual’s previous criminal record, the number and severity of any previous supervision violations, the supervised individual’s assessed risk level, and the extent to which graduated sanctions were imposed for previous violations. The system also shall define positive reinforcements that supervised individuals may receive for compliance with conditions of supervision.
  2. The department shall establish by administrative regulation an administrative process to review and approve or reject, prior to imposition, graduated sanctions that deviate from those prescribed.
  3. The department shall establish by administrative regulation an administrative process to review graduated sanctions contested by supervised individuals under KRS 439.3108 .

History. Enact. Acts 2011, ch. 2, § 60, effective June 8, 2011.

NOTES TO DECISIONS

1.Application.

In a probation revocation case, a trial court did not commit palpable error by failing to consider graduated sanctions under KRS 439.3106 where testimonial evidence showed that appellant had been a cocaine addict for 20 years, he had been through 4 treatment programs, and he had exhausted the treatment options; even though appellant contended that the Commonwealth failed to show that he was a threat to the community, § 439.3106 did not require the trial court to make specific findings of fact. KRS 439.3107 did not apply to this case, and palpable error review was necessary because claim under KRS 439.3106 was not preserved for review on appeal. Kaletch v. Commonwealth, 396 S.W.3d 324, 2013 Ky. App. LEXIS 49 (Ky. Ct. App. 2013).

Trial court on remand was to conduct a hearing to determine if defendant was a danger to prior victims or the community at large and could not be appropriately managed in the community before revoking conditional discharge because the court's order of revocation of conditional discharge was silent as to the imposition of graduated sanctions. Williams v. Commonwealth, 462 S.W.3d 407, 2015 Ky. App. LEXIS 61 (Ky. Ct. App. 2015).

Cited in:

Commonwealth v. Andrews, 2014 Ky. LEXIS 607 (Dec. 18, 2014); Helms v. Commonwealth, 2015 Ky. App. LEXIS 83 (May 29, 2015).

439.3108. Modification of conditions of community supervision — Department to reimburse local correctional or detention facilities or residential centers — Imposition of graduated sanctions.

  1. Notwithstanding any administrative regulation or law to the contrary, including KRS 439.340(3)(b), the department or board may:
    1. Modify the conditions of community supervision for the limited purpose of imposing graduated sanctions;
    2. Place a supervised individual who is on probation who violates the conditions of community supervision in a state or local correctional or detention facility or residential center for a period of not more than ten (10) days consecutively, and not more than sixty (60) days in any one (1) calendar year. The department shall reimburse the local correctional or detention facility or residential center for the costs of incarcerating a person confined under this paragraph at the rate specified in KRS 532.100 ;
    3. Place a supervised individual serving a period of parole or post-release supervision from prison or jail who violates the conditions of community supervision in a state or local correctional or detention facility or residential center for a period of not more than thirty (30) days consecutively, and not more than sixty (60) days in any one (1) calendar year. The department shall reimburse the local correctional or detention facility or residential center for the costs of incarcerating a person confined under this paragraph at the rate specified in KRS 532.100 ; and
    4. Notwithstanding paragraphs (b) and (c) of this subsection, place any supervised individual who violates the conditions of community supervision in a state or local correctional or detention facility or residential center for the period of time a supervised individual awaits admission to a residential alcohol or substance use treatment program. The department shall reimburse the local correctional or detention facility or residential center for the costs of incarcerating a supervised individual serving a period of parole or post-release supervision confined under this paragraph at the rate specified in KRS 532.100.
  2. A probation and parole officer intending to modify the conditions of community supervision by imposing a graduated sanction shall issue to the supervised individual a notice of the intended sanction. The notice shall inform the supervised individual of the technical violation or violations alleged, the date or dates of the violation or violations, and the graduated sanction to be imposed.
  3. The imposition of a graduated sanction or sanctions by a probation and parole officer shall comport with the system of graduated sanctions adopted by the department under KRS 439.3107 . Upon receipt of the notice, the supervised individual shall immediately accept or object to the sanction or sanctions proposed by the officer. The failure of the supervised individual to comply with a sanction shall constitute a violation of community supervision.
  4. If the supervised individual objects to the imposition of the sanction or sanctions, then:
    1. If the supervised individual is serving a period of parole or post-release supervision from prison or jail, then the administrative process promulgated under KRS 439.3107(3) shall apply; or
    2. If the supervised individual is on probation, then the provisions of KRS 533.050 shall apply.
  5. If the graduated sanction involves confinement in a correctional or detention facility:
    1. Confinement shall be approved by the probation and parole district supervisor, but the supervised individual may be taken into custody for up to four (4) hours while such approval is obtained;
    2. If the supervised individual is employed, the probation and parole officer shall, to the extent feasible, impose this sanction on weekend days or other days and times when the supervised individual is not working; and
    3. The supervised individual may be placed on work release for work at his or her place of employment.
  6. A sanction that confines a supervised individual in a correctional or detention facility for a period longer than authorized under subsection (1) of this section, or extends the term of community supervision, shall not be imposed as a graduated sanction, except pursuant to an order of the court or the board.
  7. Upon successful completion of a graduated sanction or sanctions, a court may not revoke the term of community supervision or impose additional sanctions for the same violation.
  8. If a probation and parole officer modifies the conditions of community supervision by imposing a graduated sanction, the officer shall:
    1. Deliver a copy of the modified conditions to the supervised individual;
    2. File a copy of the modified conditions with the sentencing court or releasing authority; and
    3. Note the date of delivery of the copy in the supervised individual’s file or case management system.

History. Enact. Acts 2011, ch. 2, § 62, effective June 8, 2011; 2017 ch. 158, § 14, effective June 29, 2017; 2020 ch. 44, § 4, effective July 15, 2020.

NOTES TO DECISIONS

Cited in:

Commonwealth v. Andrews, 2014 Ky. LEXIS 607 (Dec. 18, 2014); Brann v. Commonwealth, 2015 Ky. App. LEXIS 122 (Aug. 21, 2015).

439.3109. Quarterly review of recommended confinement sanctions.

The probation and parole district supervisor shall review confinement sanctions recommended by probation and parole officers on a quarterly basis to assess any disparities that may exist among officers, evaluate the effectiveness of the sanction as measured by the supervised individuals’ subsequent conduct, and monitor the impact on the department’s number and type of revocations for violations of the conditions of supervision.

History. Enact. Acts 2011, ch. 2, § 63, effective June 8, 2011.

439.3110. Pregnancy release conditions for eligible persons reasonably believed to have a substance use disorder.

  1. As used in this section:
    1. “Eligible person” means a person who is:
      1. A pregnant woman;
      2. Reasonably believed by a court or the department to have a substance use disorder;
      3. Not charged or convicted of an offense that would qualify the person as a violent offender under KRS 439.3401 ; and
      4. Not charged or convicted of an offense under KRS Chapter 510, KRS 529.100 involving commercial sexual activity, KRS 530.020 , 530.064(1)(a), 531.310 , or 531.320 ; and
    2. “Pregnancy release conditions” means conditions of release set by a court or the department for eligible persons which shall include:
      1. Completing inpatient residential treatment for substance use disorders;
      2. Not being charged with a new local, state, or federal misdemeanor or felony offense;
      3. If not yet sentenced, appearing for all required court appearances;
      4. If not yet sentenced, avoiding all contact with any alleged victim and any potential witness who may testify concerning the charge, unless or until the court removes this condition; and
      5. If not yet sentenced, maintaining a current address with the court.
  2. Notwithstanding any other statute to the contrary, when an eligible person is charged or convicted of any violation of KRS Chapter 218A, the person shall be released from custody upon her own recognizance so long as the person successfully meets the pregnancy release conditions. If the pregnancy release conditions are violated, the eligible person shall be returned to custody to await sentencing or to serve the sentence for the original conviction under KRS Chapter 218A as well as the sentence for any subsequent charges or convictions, if any.

HISTORY: 2018 ch. 115, § 8, effective July 14, 2018; 2021 ch. 85, § 3, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). Prior to this statute being amended in 2021, subsection (2) contained the opening language, “Except as provided in subsection (3) of this section and notwithstanding any other statute to the contrary,”. However, 2021 Ky. Acts ch. 85, sec. 3 (SB 84) deleted subsection (3), so the reference to subsection (3) in subsection (2) should have also been deleted to conform, but it wasn’t. In codification, the Reviser of Statutes has deleted “Except as provided in subsection (3) of this section and” from subsection (2) and retained “Notwithstanding any other statute to the contrary” to correct this manifest clerical or typographical error under the authority of KRS 7.136(1)(h).

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women’s Dignity in the Justice System Act. This statute was created in Section 8 of that Act.

439.315. Payment of fee by released person — Amount — Waiver of payment — Applicable to persons released by county containing a city of the first class or urban-county government.

  1. A person placed by a releasing authority on probation, parole, or other form of release subject to supervision by the Department of Corrections and all persons supervised pursuant to KRS 439.560 shall pay a fee to offset the costs of supervising the probation, parole, or other supervised release.
  2. The fees shall be as follows:
    1. For a felony, not less than ten dollars ($10) per month while on active supervision nor more than two thousand five hundred dollars ($2,500) per year.
    2. For a misdemeanor, not less than ten dollars ($10) per month while on active supervision nor more than five hundred dollars ($500) per year, except as provided in subsection (13) of this section.
  3. The releasing authority shall order the fee paid in a lump sum or installments. If the fee is to be paid in a lump sum, the person shall not be released from custody until the fee is paid in full.
  4. Upon the failure of a person to pay an installment on a fee set forth in a release agreement, the releasing authority shall hold a hearing to determine why the installment has not been paid. Failure without good cause to pay an installment pursuant to a release agreement shall be grounds for the revocation of probation, parole, conditional release, or other form of release upon which the person has been released as provided in KRS 533.050 .
  5. The releasing authority shall hold a hearing to determine the ability of the defendant to make the payments; and in making this determination, the releasing authority shall take into account the amount of any fine imposed upon the defendant and any amount the defendant has been ordered to pay in restitution. In counties containing a city of the first class or an urban-county form of government, the releasing authority may waive the payment of the fee in whole or in part for defendants placed under the supervision of the adult misdemeanant probation and work release program, if it finds that any of the factors in subsection (6) of this section exist.
  6. The releasing authority shall not waive any fee unless the commissioner of the Department of Corrections or his designee petitions the releasing authority in written form for the waiver. The Department of Corrections shall not petition unless:
    1. The offender is a student in a school, college, university, or course of vocational or technical training designed to fit the student for gainful employment. Certification of student status shall be supplied to the releasing authority by the educational institution in which the offender is enrolled. In such case, the fee may be postponed until completion of education but shall be paid thereafter.
    2. The offender has an employment disability, as determined by a physical, psychological, or psychiatric examination acceptable to, or ordered by, the releasing authority.
  7. At any time during the pendency of the judgment or order rendered according to the terms of this section, a defendant may petition the releasing authority to modify or vacate its previous judgment or order on the grounds of change of circumstances with regard to the defendant’s ability to pay the fee. The releasing authority shall advise the defendant of this right at the time of the rendering of the judgment or order placing the defendant on probation, parole, or other supervised release.
  8. All sums paid by the defendant pursuant to this section shall be paid into the general fund, except as provided in subsection (13) of this section.
  9. When granting a release of any defendant by way of probation, parole, or otherwise, the releasing authority shall make the payment of this fee a condition of release, unless the fee has been waived, reduced, or delayed as provided in this section. Nonpayment shall be grounds for revocation of the release as provided in KRS 533.050 .
  10. The releasing authority, if the Department of Corrections petitions the releasing authority to modify the fee, shall consider the petition and may waive the payment of the fee in whole or in part, delay payment of the fee, increase the fee, or deny the petition.
  11. All fees fixed under the provisions of this section shall be collected by the circuit clerk of the county where the defendant is supervised, except as provided in subsection (13) of this section.
  12. The Department of Corrections and the Division of Probation and Parole shall, for each person released under its supervision, keep an account of all payments made and report delinquencies to the releasing authority.
  13. In a city, county, consolidated local government, charter county, or an urban-county government, persons placed by a releasing authority on probation, parole, or other release subject to supervision by the adult misdemeanant probation and work release program of the county, city, consolidated local government, charter county, or urban-county government shall pay a fee to offset the costs of supervising the probation, parole, or other supervised release. The fees shall be assessed by the releasing authority in accordance with the provisions of this section. The fee for a misdemeanant defendant placed under the supervision of an adult misdemeanant probation and work release program of a county, city, consolidated local government, charter county, or an urban-county government shall be not less than one hundred dollars ($100) nor more than five hundred dollars ($500) per year. All sums paid by the defendant under this subsection shall be paid into the general fund of the county, city, consolidated local government, charter county, or urban-county government in lieu of the payment specified in subsection (8) of this section. All fees fixed under this subsection shall be collected by the circuit clerk of the county or urban-county involved. The adult misdemeanant probation and work release program of the county, consolidated local government, city, charter county, or urban-county government shall, for each person released under its supervision, keep an account of all payments made, maintain copies of all receipts issued by the circuit clerk, and report delinquencies to the court.

History. Enact. Acts 1982, ch. 416, § 1, effective July 15, 1982; 1984, ch. 156, § 1, effective July 13, 1984; 1988, ch. 377, § 2, effective July 15, 1988; 1992, ch. 211, § 95, effective July 14, 1992; 1992, ch. 335, § 1, effective July 14, 1992; 1994, ch. 405, § 88, effective July 15, 1994; 1994, ch. 418, § 11, effective July 15, 1994; 1998, ch. 286, § 1, effective July 15, 1998; 1998, ch. 606, § 112, effective July 15, 1998; 2002, ch. 346, § 234, effective July 15, 2002.

439.320. Parole board — Members’ qualifications, terms, compensation — Chairperson — Administrative regulations — Quorum.

  1. The Governor shall appoint a Parole Board consisting of nine (9) full-time members to be confirmed by the Senate in accordance with KRS 11.160 . The Governor shall make each appointment from a list of three (3) names given to him or her by the Kentucky State Corrections Commission. Each member appointed to the board shall have had at least five (5) years of actual experience in the field of penology, correction work, law enforcement, sociology, law, education, social work, medicine, or a combination thereof, or have served at least five (5) years previously on the Parole Board. No more than six (6) board members shall be of the same political party. The board shall be attached to the Justice and Public Safety Cabinet for administrative purposes only. The Department of Corrections shall provide any clerical, stenographic, administrative, and expert staff assistance the board deems necessary to carry out its duties.
  2. The Governor shall designate one (1) member as chairperson of the board. The member designated as chairperson shall serve in that capacity at the pleasure of the Governor or until his or her term expires.
  3. The members of the board shall give full time to the duties of their office and shall receive necessary traveling expenses and a salary to be determined pursuant to KRS 64.640(2), except the chairperson of the board shall receive additional compensation of one thousand dollars ($1,000) per year for his or her services. Their terms of office shall be four (4) years and until their successors are appointed and have qualified. Their successors shall be appointed thereafter as provided in this section for terms of four (4) years, and a vacancy occurring before expiration of the term of office shall be similarly filled for the unexpired term.
  4. The organization of the board shall be determined by the chairperson and shall be consistent with administrative regulations promulgated pursuant to KRS 439.340 . For policy and procedural matters, five (5) members shall constitute a quorum. Parole and final parole revocation hearings may be done by panels of the board, subject to the following requirements:
    1. If a two (2) member panel is utilized, both members of the panel shall agree on the decision or the matter shall be referred to the full board;
    2. If a three (3) member panel is utilized, two (2) of the three (3) members of the panel shall agree on a decision or the matter shall be referred to the full board; and
    3. If a panel of four (4) or more members is utilized, a majority of the panel shall agree on a decision or the matter shall be referred to the full board.
  5. The Governor may not remove any member of the board except for disability, inefficiency, neglect of duty, or malfeasance in office. Before removal, he or she shall give the member a written copy of the charges against him or her and shall fix the time when he or she can be heard in his or her defense, which shall not be less than ten (10) days thereafter. Upon removal, the Governor shall file in the office of the Secretary of State a complete statement of all charges made against the member and the findings thereupon with a record of the proceedings.

History. Enact. Acts 1956, ch. 101, § 8, effective May 18, 1956; 1963 (2nd Ex. Sess.), ch. 4, § 4; 1972, ch. 291, § 1; 1976, ch. 83, § 14, effective March 29, 1976; 1978, ch. 155, § 159, effective June 17, 1978; 1982, ch. 344, § 42, effective July 15, 1982; 1986, ch. 92, § 1, effective July 15, 1986; 1988, ch. 412, § 1, effective July 15, 1988; 1992, ch. 211, § 96, effective July 14, 1992; 1994, ch. 179, § 3, effective July 15, 1994; 1994, ch. 227, § 11, effective July 15, 1994; 1998, ch. 541, § 1, effective July 15, 1998; 2000, ch. 298, § 1, effective July 14, 2000; 2000, ch. 456, § 2, effective July 14, 2000; 2005, ch. 129, § 1, effective March 18, 2005; 2007, ch. 85, § 319, effective June 26, 2007; 2008, ch. 158, § 1, effective July 1, 2008; repealed, reenact. and amend., Acts 2010, ch. 107, § 4, effective July 15, 2010; 2012, ch. 156, § 12, effective July 12, 2012; 2013, ch. 72, § 4, effective June 25, 2013.

Compiler’s Notes.

Acts 1986, ch. 92, § 2, which became effective July 15, 1986, provided that, “The General Assembly confirms the reorganization of the Parole Board by Executive Order 85-795 issued on October 10, 1985, to the extent that it is not otherwise confirmed by this Act.” Such Executive Order expanded membership of the parole board. Since the board had a current backlog, two new members were appointed by the governor for four (4) year terms. No more than four (4) members of the new seven (7) member board were to be of one political party, and four (4) members constituted a quorum. The governor was to name a chairperson and two vice-chairpersons from among the seven (7) members. If the position of executive director became open the responsibilities of the position would be assumed by the chairperson of the board.

Legislative Research Commission Notes.

(7/15/2010). 2008 Ky. Acts ch. 107, sec. 12, provides that “The intent of the General Assembly in repealing and reenacting KRS 439.320 , 439.340 , and 532.200 in Sections 4, 5, and 10 of this Act is to affirm the amendments made to these sections in 2008 Ky. Acts ch. 158. The specific textual provisions of Sections 4, 5, and 10 of this Act which reflect amendments made to those sections by 2008 Ky. Acts ch. 158 shall be deemed effective as of April 24, 2008, and those provisions are hereby made expressly retroactive to that date, with the remainder of the text from those sections being unaffected by the provisions of this section.” This statute is affected by that language.

NOTES TO DECISIONS

1.Inadequate Review.

Complaint under federal civil rights act that interview with only three (3) members of parole board was an inadequate review of an application for parole was dismissed since the composition and operation of state parole board is not a federal concern. Ornitz v. Robuck, 366 F. Supp. 183, 1973 U.S. Dist. LEXIS 11030 (E.D. Ky. 1973 ).

Cited in:

Harrison v. Robuck, 508 S.W.2d 767, 1974 Ky. LEXIS 627 ( Ky. 1974 ).

Opinions of Attorney General.

Under this section, the authority of the governor to appoint a chairman of the parole board includes the authority to appoint an acting chairman when the chairman is temporarily prevented from performing his duties because of illness. OAG 69-487 .

Upon review of subsections (1) and (3) of this section, KRS 64.640 , and 12.020 II 10. (a), as well as of KRS 18A.350 , 18A.355 , and 18A.360 , (now repealed) the incumbents of the Parole Board are included under the language of KRS 18A.350 which defines employee as any officer or employee of the executive branch of government; therefore, it would appear that the members of the Parole Board are eligible for annual increments, although it is entirely possible that this was not the intent of the legislature. OAG 90-25 .

Since three (3) members of the Parole Board constitute a quorum concerning parole hearings under this section, any hearing conducted under KRS 439.340(2) by three (3) or more members of the Parole Board would be a public meeting of a public body and open to the public. Two (2) members of the Parole Board do not constitute a quorum and thus prior to the 1992 amendments to the Open Meetings Act such a hearing would not be a public meeting of a public agency. However, the Open Meetings Act as amended in 1992, in KRS 61.810(2), deals with “less than quorum meetings.” KRS 61.810(2) would prohibit the Parole Board from adopting a procedure whereby it utilizes two (2) person panels to conduct hearings and to prohibit public accessibility when panels of three (3) or more Parole Board members conducting the same kinds of hearings would be clearly open meetings open to the public. Thus, if the Parole Board utilizes two (2) person panels to conduct the hearings required by KRS 439.340(2) such hearings are open to the public. OAG 92-146 .

Research References and Practice Aids

Kentucky Law Journal.

Moreland, Model Penal Code: Sentencing, Probation and Parole. 57 Ky. L.J. 51 (1968).

Note: Reconsidering State Parole Board Membership Requirements in Light of Model Penal Code Sentencing Revisions, 100 Ky. L.J. 871 (2011/2012).

439.330. Duties of board.

  1. The board shall:
    1. Study the case histories of persons eligible for parole, and deliberate on that record;
    2. Conduct reviews and hearings on the desirability of granting parole;
    3. Impose upon the parolee or conditional releasee such conditions as it sees fit;
    4. Order the granting of parole;
    5. Issue warrants for persons charged with violations of parole and postincarceration supervision and conduct hearings on such charges, subject to the provisions of KRS 439.341 , 532.043 , and 532.400 ;
    6. Determine the period of supervision for parolees, which period may be subject to extension or reduction after recommendation of the cabinet is received and considered; and
    7. Grant final discharge to parolees.
  2. The board shall adopt an official seal of which the courts shall take judicial notice.
  3. The orders of the board shall not be reviewable except as to compliance with the terms of KRS 439.250 to 439.560 .
  4. The board shall keep a record of its acts, an electronic record of its meetings, a written record of the votes of individual members, and the reasons for denying parole to inmates. These records shall be public records in accordance with KRS 61.870 to 61.884 . The board shall notify each institution of its decisions relating to the persons who are or have been confined therein, and shall submit to the Governor a report with statistical and other data of its work at the close of each fiscal year.

History. Enact. Acts 1956, ch. 101, § 9, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(16); 1978, ch. 259, § 1, effective June 17, 1978; 1980, ch. 208, § 2, effective July 15, 1980; 1982, ch. 344, § 43, effective July 15, 1982; 1994, ch. 179, § 4, effective April 4, 1994; 2005, ch. 129, § 3, effective March 18, 2005; 2011, ch. 2, § 87, effective March 3, 2011; 2011, ch. 2, § 101, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). This section was amended by 2011 Ky. Acts ch. 2, secs. 87 and 101, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Scope of Review.

Right of review of action taken by parole board is limited to questions of compliance with the parole act. Willard v. Ferguson, 358 S.W.2d 516, 1962 Ky. LEXIS 186 ( Ky. 1962 ).

Where parole board denied parole and ordered that no further applications be made within 48 months, court may not enjoin enforcement of that order without a showing of noncompliance by the board with the parole act. Willard v. Ferguson, 358 S.W.2d 516, 1962 Ky. LEXIS 186 ( Ky. 1962 ).

2.Discretion of Board.

Parole board did not abuse its discretion by denying parole to a prisoner where the board considered all his records showing dates of imprisonment and paroles, commitments and recommitments, and rules and regulations governing credits for time and penalties for violations. Adams v. Ferguson, 386 S.W.2d 462, 1965 Ky. LEXIS 510 ( Ky. 1965 ).

Cited in:

Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Due Process and the Parole Release Decision, 66 Ky. L.J. 405 (1977-1978).

439.331. Risks and needs assessment of criminal risk factors of parole-eligible inmates.

The department shall:

  1. Administer a validated risk and needs assessment to assess the criminal risk factors of all inmates who are eligible for parole, or a reassessment of a previously administered risk and needs assessment, before the case is considered by the board;
  2. Provide the results of the most recent risk and needs assessment to the board before an inmate appears before the board; and
  3. Incorporate information from an inmate’s criminal risk and needs assessment into the development of his or her case plan.

History. Enact. Acts 2011, ch. 2, § 30, effective June 8, 2011.

439.335. Scientific means of personality analysis to be used to establish level, intensity, terms, and conditions of supervision.

  1. In considering the granting of parole and the terms of parole, the parole board shall use the results from an inmate’s validated risk and needs assessment and any other scientific means for personality analysis that may hereafter be developed.
  2. The department shall use the results from an inmate’s validated risk and needs assessment and any other scientific means for personality analysis that may hereafter be developed to define the level or intensity of supervision for parole, and to establish any terms or conditions of supervision imposed by the department in accordance with the administrative regulations adopted by the department pursuant to KRS 439.470 or as otherwise authorized by law. The terms and intensity of supervision shall be based on an individual’s level of risk to public safety, criminal risk factors, and the need for treatment and other interventions.

History. Enact. Acts 1966, ch. 143, § 1; 1998, ch. 606, § 167, effective July 15, 1998; 2011, ch. 2, § 31, effective June 8, 2011; 2012, ch. 156, § 13, effective July 12, 2012.

Opinions of Attorney General.

Although the psychiatric and psychological evaluations found in an inmate’s parole review file are confidential, caution should be exercised upon any examination thereof; the Legislative Program Review and Investigations Committee and its staff may have access to the files, but should protect against the general release or publication of the material. Public discussion of this review should scrupulously avoid identification of individual inmates and the opinions expressed in the evaluations with respect to each of them. OAG 91-86 .

439.340. Parole of prisoners confined in adult penal or correctional institutions, halfway houses, and reentry centers — Notice of prisoner's parole to be given to certain law enforcement officers, and to victims or their next of kin.

  1. The board may release on parole persons confined in any adult state penal or correctional institution of Kentucky or sentenced felons incarcerated in county jails eligible for parole. All paroles shall issue upon order of the board duly adopted. As soon as practicable after his or her admission to an adult state penal or correctional institution or county jail if he or she is a sentenced felon, and at such intervals thereafter as it may determine, the Department of Corrections shall obtain all pertinent information regarding each prisoner, except those not eligible for parole. The information shall include the results of his or her most recent risk and needs assessment, his or her criminal record, his or her conduct, employment, and the reports of physical and mental examinations that have been made. The Department of Corrections shall furnish the circumstances of his or her offense, the results of his or her most recent risk and needs assessment, and his or her previous social history to the board. The Department of Corrections shall prepare a report on any information it obtains. It shall be the duty of the Department of Corrections to supplement this report with any material the board may request and submit the report to the board.
  2. Before granting the parole of any prisoner, the board shall consider the pertinent information regarding the prisoner, including the results of his or her most recent risk and needs assessment, and shall have him or her appear before it for interview and hearing. The board in its discretion may hold interviews and hearings for prisoners convicted of Class C felonies not included within the definition of “violent offender” in KRS 439.3401 and Class D felonies not included within the definition of “sex crime” in KRS 17.500 . The board in its discretion may request the parole board of another state confining prisoners pursuant to KRS 196.610 to interview eligible prisoners and make a parole recommendation to the board. A parole shall be ordered only for the best interest of society and not as an award of clemency, and it shall not be considered a reduction of sentence or pardon. A prisoner shall be placed on parole only when arrangements have been made for his or her proper employment or for his or her maintenance and care, and when the board believes he or she is able and willing to fulfill the obligations of a law abiding citizen. Notwithstanding any statute to the contrary, including KRS 440.330 , when a prisoner is otherwise eligible for parole and the board has recommended parole for that prisoner for the reasons set forth in this subsection, the board may grant parole to any prisoner wanted as a fugitive by any other jurisdiction, and the prisoner shall be released to the detainer from that jurisdiction. Such parole shall not constitute a relinquishment of jurisdiction over the prisoner, and the board in all cases expressly reserves the right to return the prisoner to confinement in a correctional institution of the Commonwealth if the prisoner violates the terms of his or her parole.
    1. A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years who is confined to a state penal institution or county jail shall have his or her case reviewed by the Parole Board after serving fifteen percent (15%) or two (2) months of the original sentence, whichever is longer. (3) (a) A nonviolent offender convicted of a Class D felony with an aggregate sentence of one (1) to five (5) years who is confined to a state penal institution or county jail shall have his or her case reviewed by the Parole Board after serving fifteen percent (15%) or two (2) months of the original sentence, whichever is longer.
    2. Except as provided in this section, the board shall adopt administrative regulations with respect to the eligibility of prisoners for parole, the conduct of parole and parole revocation hearings and all other matters that come before it, or conditions to be imposed upon parolees. Regulations governing the eligibility of prisoners for parole shall be in accordance with professionally accepted ideas of correction and reform and may utilize in part objective, performance-based criteria and risk and needs assessment information; however, nothing herein contained shall preclude the board from utilizing its present regulations in conjunction with other factors involved that would relate to the inmate’s needs and the safety of the public.
  3. The board shall insure that all sentenced felons who have longer than ninety (90) days to serve in state penal institutions, halfway houses, reentry centers, and county jails are considered for parole not less than sixty (60) days prior to their parole eligibility date, and the Department of Corrections shall provide the necessary assistance and information to the board in order for it to conduct timely parole reviews.
  4. In addition to or in conjunction with each hearing conducted under subsection (2) of this section for any prisoner convicted of a Class A, B, or C felony or a Class D felony included within the definition of “sex crime” in KRS 17.500 and prior to the granting of a parole to any such prisoner, the parole board shall conduct a hearing of which the following persons shall receive not less than forty-five (45) nor more than ninety (90) days’ notice: the Commonwealth’s attorney who shall notify the sheriff of every county and the chief of police of every city and county in which the prisoner committed any Class A, B, or C felony or a Class D felony included within the definition of “sex crime” in KRS 17.500 for which he or she is imprisoned, and all identified victims of the crimes or the next of kin of any victim who is deceased. Notice to the Commonwealth’s attorney shall be by mail, fax, or electronic means at the discretion of the board, and shall be in a manner that ensures receipt at the Commonwealth attorney’s business office. Notices received by chiefs of police and sheriffs shall be posted in a conspicuous location where police employed by the department may see it. Notices shall be posted in a manner and at a time that will allow officers to make comment thereon to the Parole Board. Notice to victims or their next of kin shall be made, for prisoners incarcerated prior to July 15, 1986, by mail, fax, or electronic means at the discretion of the board, and shall be in a manner that ensures receipt by the Commonwealth’s attorney, who shall forward the notice promptly to the victims or their next of kin at their last known address. For prisoners incarcerated on or after July 15, 1986, notice to the victims or their next of kin shall be by mail from the Parole Board to their last known address as provided by the Commonwealth’s attorney to the Parole Board at the time of incarceration of the prisoner. For prisoners incarcerated prior to April 1, 2021 for a Class D felony included within the definition of “sex crime” in KRS 17.500, notice to the victims or their next of kin shall be in a manner that ensures receipt by the Commonwealth’s attorney, who shall forward the notice promptly to the victims or their next of kin at their last known address. For prisoners incarcerated on or after April 1, 2021 for a Class D felony included within the definition of “sex crime” in KRS 17.500, notice to the victims or their next of kin shall be by mail from the Parole Board to their last known address as provided by the Commonwealth’s attorney to the Parole Board at the time of incarceration of the prisoner. Notice to the victim or the next of kin of subsequent considerations for parole after the initial consideration shall not be sent if the victim or the next of kin gives notice to the board that he or she no longer wants to receive such notices. The notice shall include the time, date, and place of the hearing provided for in this subsection, and the name and address of a person to write if the recipient of the notice desires to attend the hearing or to submit written comments.
  5. Persons receiving notice as provided for in subsection (5) of this section may submit comments, in person or in writing, to the board upon all issues relating to the parole of the prisoner. The board shall read and consider all comments prior to making its parole decision, if they are received by the board not less than seven (7) days before the date for the hearing. The board shall retain all comments in the prisoner’s permanent Parole Board file, and shall consider them in conjunction with any subsequent parole decisions affecting the prisoner. In addition to officers listed in subsection (5) of this section, the crime victims or the next of kin of any victim who is deceased or who is disabled and cannot attend the hearing or the parent or legal guardian of any victim who is a minor may attend the hearing provided for in subsection (5) of this section and present oral and written comments upon all issues relating to the parole of the prisoner, if they have advised the board, in writing received by the board not less than seven (7) days prior to the date set for the hearing, of their intention to attend the hearing. The board shall receive and consider all comments, shall make a record of them which it shall retain in the prisoner’s permanent Parole Board file, and shall consider them in conjunction with any subsequent parole decision affecting the prisoner. Persons appearing before the Parole Board pursuant to this subsection may elect to make their presentations outside of the presence of the prisoner.
  6. Victims of Class D felonies not included within the definition of “sex crime” in KRS 17.500 may submit comments in person or in writing to the board upon all issues relating to the parole of a prisoner.
  7. Any hearing provided for in subsections (5), (6), and (7) of this section shall be open to the public unless the persons having a right to appear before the board as specified in those subsections request closure of hearing for reasons of personal safety, in which event the hearing shall be closed. The time, date, and location of closed hearings shall not be disclosed to the public.
  8. Except as specifically set forth in this section, nothing in this section shall be deemed to expand or abridge any existing rights of persons to contact and communicate with the Parole Board or any of its members, agents, or employees.
  9. The unintentional failure by the Parole Board, sheriff, chief of police, or any of its members, agents, or employees or by a Commonwealth’s attorney or any of his or her agents or employees to comply with any of the provisions of subsections (5), (6), and (8) of this section shall not affect the validity of any parole decision or give rise to any right or cause of action by the crime victim, the prisoner, or any other person.
  10. No eligible sexual offender within the meaning of KRS 197.400 to 197.440 shall be granted parole unless he or she has successfully completed the Sexual Offender Treatment Program.
  11. Any prisoner who is granted parole after completion of the Sexual Offender Treatment Program shall be required, as a condition of his or her parole, to participate in regular treatment in a mental health program approved or operated by the Department of Corrections.
  12. When the board grants parole contingent upon completion of a program, the commissioner, or his or her designee, shall determine the most appropriate placement in a program operated by the department or a residential or nonresidential program within the community approved by the department. If the department releases a parolee to a nonresidential program, the department shall release the parolee only if he or she will have appropriate community housing pursuant to KRS 439.3408 .
  13. If the parole board does not grant parole to a prisoner, the maximum deferment for a prisoner convicted of a non-violent, non-sexual Class C or Class D felony shall be twenty-four (24) months. For all other prisoners who are eligible for parole:
    1. No parole deferment greater than five (5) years shall be ordered unless approved by a majority vote of the full board; and
    2. No deferment shall exceed ten (10) years, except for life sentences.
  14. When an order for parole is issued, it shall recite the conditions thereof.

History. Enact. Acts 1956, ch. 101, § 10, effective May 18, 1956; 1963 (2nd Ex. Sess.), ch. 4, § 6; 1974, ch. 74, Art. V, § 24(15); 1976, ch. 190, § 1; 1978, ch. 259, § 2, effective June 17, 1978; 1982, ch. 344, § 44, effective July 15, 1982; 1986, ch. 133, § 1, effective July 15, 1986; 1986, ch. 382, § 1, effective July 15, 1986; 1986, ch. 478, § 6, effective July 15, 1986; 1990, ch. 435, § 1, effective July 13, 1990; 1992, ch. 211, § 97, effective July 14, 1992; 1994, ch. 179, § 2, effective April 4, 1994; 1998, ch. 541, § 2, effective July 15, 1998; 2002, ch. 179, § 1, effective July 15, 2002; 2002, ch. 232, § 1, effective July 15, 2002; 2005, ch. 129, § 2, effective March 18, 2005; 2008, ch. 158, § 2, effective July 1, 2008; 2009, ch. 57, § 1, effective June 25, 2009; repealed and reenact., Acts 2010, ch. 107, § 5, effective July 15, 2010; 2011, ch. 2, § 32, effective June 8, 2011; 2017 ch. 158, § 91, effective June 29, 2017; 2021 ch. 175, § 1, effective April 1, 2021.

Legislative Research Commission Notes.

(7/15/2010). 2008 Ky. Acts ch. 107, sec. 12, provides that “The intent of the General Assembly in repealing and reenacting KRS 439.320 , 439.340 , and 532.200 in Sections 4, 5, and 10 of this Act is to affirm the amendments made to these sections in 2008 Ky. Acts ch. 158. The specific textual provisions of Sections 4, 5, and 10 of this Act which reflect amendments made to those sections by 2008 Ky. Acts ch. 158 shall be deemed effective as of April 24, 2008, and those provisions are hereby made expressly retroactive to that date, with the remainder of the text from those sections being unaffected by the provisions of this section.” This statute is affected by that language.

NOTES TO DECISIONS

1.Eligibility Requirements.

The parole law contains no requirement as to the length of service in prison a person must serve before being eligible for parole. Pryor v. Commonwealth, 396 S.W.2d 43, 1965 Ky. LEXIS 87 ( Ky. 1965 ).

Department’s failure to provide an individualized treatment plan to enable a sex offender to qualify for the Sex Offender Treatment Program (SOTP) was not in derogation of the considerable leeway afforded the Kentucky Department of Corrections or of anything else set forth in KRS 197.400 to 197.440 ; nothing of substance was presented that showed any “personal bias or prejudice” towards an inmate who was found to be a “non-admitter” and for that reason denied admission to the full SOTP. Seymour v. Colebank, 179 S.W.3d 886, 2005 Ky. App. LEXIS 168 (Ky. Ct. App. 2005).

Inmates did not have a protected procedural or substantive due process right to have a parole proceeding as that proceeding was contemplated under KRS 439.340(1). Fancher v. Ky. Parole Bd., 2005 U.S. Dist. LEXIS 24798 (W.D. Ky. Oct. 21, 2005).

2.Collateral Estoppel.

Where a federal court decided the governor had powers of commutation as well as of pardon, since the commuted sentence of life imprisonment without parole was less than that of the death penalty which had been affirmed by the courts of Kentucky, defendant was collaterally estopped from relitigating this question. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

3.Commutation.

Although the legislative branch is responsible for criminal penalties and has set the punishment for first degree murder as death or life with parole, the governor can commute a death sentence to a life term without parole. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

4.Presentence Investigation Report.

A defendant who was indicted on two (2) counts of first-degree robbery and for being a persistent felony offender, but as to whom one robbery count and the persistent felon count were dismissed as part of a plea bargain, was not entitled to have the dismissed charges segregated from the presentence investigation report in the hands of the Parole Board. Aaron v. Commonwealth, 810 S.W.2d 60, 1991 Ky. App. LEXIS 71 (Ky. Ct. App. 1991).

5.Criteria for Determining Release.

Although this section vests broad discretion in the Kentucky State Parole Board, it does not employ language requiring release absent a finding that release would be inappropriate for a specified reason, but instead, this section prohibits parole absent a determination that such would be in the best interest of society; in construing the language of this section the appellate court concluded that this statute does not elevate parole to a liberty interest in which inmates have a legitimate claim of entitlement nor does it mean that the full panoply of due process required to convict and confine must be employed by the board in deciding to deny parole and continue confinement. Belcher v. Kentucky Parole Bd., 917 S.W.2d 584, 1996 Ky. App. LEXIS 48 (Ky. Ct. App. 1996).

6.Sexual Offenders.

The application of subsection (11) to the appellant, who was thereby required to complete a sex offender treatment program before he became eligible for parole, was not inappropriate where (1) the appellant was sentenced to five (5) years’ imprisonment and would normally have been eligible for parole after one (1) year, and (2) the sex offender treatment program was a three (3) year program. Garland v. Commonwealth, 997 S.W.2d 487, 1999 Ky. App. LEXIS 98 (Ky. Ct. App. 1999).

7.Ex Post Facto.

Kentucky Parole Board’s application of sex offender statutes, KRS 439.340(11) and KRS 197.400 to 197.440 , which had not been in effect when an inmate committed rape, did not violate the Ex Post Facto Clause as there was no enhancement of punishment or elongation of a sentence. Stewart v. Commonwealth, 153 S.W.3d 789, 2005 Ky. LEXIS 12 ( Ky. 2005 ).

8.Due Process.

Defendant was denied due process at a final hearing on revocation of post-incarceration supervision because (1) the revocation was insufficiently based on findings at a probable cause hearing, (2) defendant was not asked if defendant sought counsel’s assistance, and (3) defendant did not receive timely notice of the final hearing or a final decision identifying the decision’s basis. Jones v. Bailey, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Cited in:

Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ); Wingo v. Lyons, 432 S.W.2d 821, 1968 Ky. LEXIS 360 ( Ky. 1968 ); Hobbs v. Commonwealth, 690 S.W.2d 771, 1985 Ky. App. LEXIS 596 (Ky. Ct. App. 1985); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ); Martin v. Chandler, 122 S.W.3d 540, 2003 Ky. LEXIS 265 ( Ky. 2003 ); Holland v. Commonwealth, 192 S.W.3d 433, 2005 Ky. App. LEXIS 290 (Ky. Ct. App. 2005).

Opinions of Attorney General.

Pursuant to KRS 439.175 (repealed) and departmental regulations a county judge may parole a misdemeanant without regard to any precise minimum to be served. OAG 64-353 .

KRS 532.120 must be read in para materia with this section and, although that section requires that all jail time be credited for all purposes as time served in prison, the parole board may by regulation require that a specified time actually be served by the prisoner in the institution to which he was sentenced before he is eligible for parole consideration. OAG 75-399 .

Under KRS 439.352 , a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. OAG 82-267 .

Although the psychiatric and psychological evaluations found in an inmate’s parole review file are confidential, caution should be exercised upon any examination thereof; the Legislative Program Review and Investigations Committee and its staff may have access to the files, but should protect against the general release or publication of the material. Public discussion of this review should scrupulously avoid identification of individual inmates and the opinions expressed in the evaluations with respect to each of them. OAG 91-86 .

The Chairman of the Parole Board has no unilateral authority to open or close any portion of a parole release hearing. Hearings may only be closed when there is specific statutory authorization, such as subsection (7) (now (8)) of this section and the terms of the section are expressly satisfied. OAG 92-146 .

The interview and discussion portion of a parole release hearing with the prisoner are meetings open to the public, but the deliberations for decisions of the parole board may be conducted in closed sessions. The hearings conducted pursuant to subsection (5) of this section may be closed pursuant to a closure request by the persons having a right to appear at such hearings for reasons of personal security. OAG 92-146 .

Since three (3) members of the Parole Board constitute a quorum concerning parole hearings (KRS 439.320(4)), any hearing conducted under subsection (2) of this section by three (3) or more members of the Parole Board would be a public meeting of a public body and open to the public. Two (2) members of the Parole Board do not constitute a quorum and thus prior to the 1992 amendments to the Open Meetings Act such a hearing would not be a public meeting of a public agency. However, the Open Meetings Act as amended in 1992, in KRS 61.810(2), deals with “less than quorum meetings.” KRS 61.810(2) would prohibit the Parole Board from adopting a procedure whereby it utilizes two (2) person panels to conduct hearings and to prohibit public accessibility when panels of three (3) or more Parole Board members conducting the same kinds of hearings would be clearly open meetings open to the public. Thus, if the Parole Board utilizes two (2) person panels to conduct the hearings required by subsection (2) of this section, such hearings are open to the public. OAG 92-146 .

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Juvenile Court, § 32.24.

439.3401. Parole for violent offenders — Applicability of section to victim of domestic violence or abuse — Time of offense — Prohibition against award of credit.

  1. As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of:
    1. A capital offense;
    2. A Class A felony;
    3. A Class B felony involving the death of the victim or serious physical injury to a victim;
    4. An offense described in KRS 507.040 or 507.050 where the offense involves the killing of a peace officer, firefighter, or emergency medical services personnel while the peace officer, firefighter, or emergency medical services personnel was acting in the line of duty;
    5. A Class B felony involving criminal attempt to commit murder under KRS 506.010 if the victim of the offense is a clearly identifiable peace officer, firefighter, or emergency medical services personnel acting in the line of duty, regardless of whether an injury results;
    6. The commission or attempted commission of a felony sexual offense described in KRS Chapter 510;
    7. Use of a minor in a sexual performance as described in KRS 531.310 ;
    8. Promoting a sexual performance by a minor as described in KRS 531.320 ;
    9. Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
    10. Human trafficking under KRS 529.100 involving commercial sexual activity where the victim is a minor;
    11. Criminal abuse in the first degree as described in KRS 508.100 ;
    12. Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010 , 508.020 , 508.032 , or 508.060 ;
    13. Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040 ; or
    14. Robbery in the first degree. The court shall designate in its judgment if the victim suffered death or serious physical injury.
  2. A violent offender who has been convicted of a capital offense and who has received a life sentence (and has not been sentenced to twenty-five (25) years without parole or imprisonment for life without benefit of probation or parole), or a Class A felony and receives a life sentence, or to death and his or her sentence is commuted to a life sentence shall not be released on probation or parole until he or she has served at least twenty (20) years in the penitentiary. Violent offenders may have a greater minimum parole eligibility date than other offenders who receive longer sentences, including a sentence of life imprisonment.
    1. A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed. (3) (a) A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.
    2. A violent offender who has been convicted of a violation of KRS 507.040 where the victim of the offense was clearly identifiable as a peace officer, a firefighter, or emergency medical services personnel, and the victim was acting in the line of duty shall not be released on probation or parole until he or she has served at least eighty-five percent (85%) of the sentence imposed.
    3. A violent offender who has been convicted of a violation of KRS 507.040 or 507.050 where the victim of the offense was a peace officer, a firefighter, or emergency medical services personnel, and the victim was acting in the line of duty shall not be released on probation or parole until he or she has served at least fifty percent (50%) of the sentence imposed.
    4. Any offender who has been convicted of a homicide or fetal homicide offense under KRS Chapter 507 or 507A in which the victim of the offense died as the result of an overdose of a Schedule I controlled substance and who is not otherwise subject to paragraph (a), (b), or (c) of this subsection shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he or she has served at least fifty percent (50%) of the sentence imposed.
  3. A violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1. In no event shall a violent offender be given credit on his or her sentence if the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence.
  4. This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim. The provisions of this subsection shall not extend to rape in the first degree or sodomy in the first degree by the defendant.
  5. This section shall apply only to those persons who commit offenses after July 15, 1998.
  6. For offenses committed prior to July 15, 1998, the version of this statute in effect immediately prior to that date shall continue to apply.
  7. The provisions of subsection (1) of this section extending the definition of “violent offender” to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.

History. Enact. Acts 1986, ch. 358, § 1, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 3, § 1, effective February 15, 1991; 1992, ch. 173, § 4, effective July 14, 1992; 1998, ch. 606, § 77, effective July 15, 1998; 2000, ch. 401, § 3, effective July 14, 2000; 2002, ch. 120, § 2, effective July 15, 2002; 2006, ch. 182, § 27, effective July 12, 2006; 2007, ch. 19, § 11, effective June 26, 2007; 2011, ch. 2, § 99, effective June 8, 2011; 2013, ch. 101, § 1, effective June 25, 2013; 2015 ch. 66, § 19, effective March 25, 2015; 2018 ch. 89, § 15, effective July 1, 2018; 2018 ch. 115, § 10, effective July 14, 2018; 2019 ch. 136, § 1, effective June 27, 2019.

Compiler's Notes.

Acts 1991 (1st Ex. Sess.), ch. 3, § 2 read: “The amendment of subsection (3) of Section 1 of this Act shall apply only to those persons who commit offenses after the effective date of this Act [February 15, 1991].”

The section is set out to reflect the proper set out of the last sentence of (1).

Legislative Research Commission Notes.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women’s Dignity in the Justice System Act. This statute was amended in Section 10 of that Act.

(6/25/2013). 2013 Ky. Acts ch. 101, sec. 2, provides that Section 1 of the Act, which included an amendment to this statute, shall be known as the “Bryan Durman Act.”

NOTES TO DECISIONS

1.In General.

A trial court has the discretion to decline to follow a jury’s recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

2.Constitutionality.

Both KRS 532.055 and this section are constitutional. Huff v. Commonwealth, 763 S.W.2d 106, 1988 Ky. LEXIS 77 ( Ky. 1988 ).

Because defendant did not notify the Attorney General of his constitutional challenge during the pendency of the Circuit Court proceedings and failed to fully and timely to comply with the strict rubric of KRS 418.075 , his constitutional challenge was left unpreserved for appellate review. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

2006 amendment to Ky. Rev. Stat. Ann. § 439.3401(1) was not an ex post facto law because increasing the time one had to serve prior to becoming parole eligible did not have a very real and direct effect on the actual time the prisoner remained behind bars, and since the amendment was textual in nature and did not change the violent offender definition, it was not retrospective. Pate v. Dep't of Corr., 466 S.W.3d 480, 2015 Ky. LEXIS 1747 ( Ky. 2015 ), overruled in part, Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 2020 Ky. LEXIS 399 ( Ky. 2020 ).

3.Construction with Other Law.

The violent offender statute, KRS 439.3401 , and the persistent felony offender statute, KRS 532.080 , are not in conflict. Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ).

4.Minors.

Statute pertaining to youthful offenders, KRS 640.030 , which permits probation regardless of the offense charged as one of three options the circuit court must consider at an age of majority hearing, controls over KRS 439.3401 , because the statute pertaining to youthful offenders governs treatment of a specific class of offenders regardless of the offense for which they are convicted. Hickman v. Commonwealth, 2006 Ky. App. LEXIS 127 (Ky. Ct. App. Apr. 28, 2006).

Trial courts were not constrained to sentence the juvenile offenders under the terms of the Violent Offender Statute, KRS 439.3401 , when the courts were addressing the status of juvenile offenders when they reached the age of 18, pursuant to KRS 640.030 ; and the sentencing constraints set forth in KRS 439.3401 did not apply to the KRS 640.030 proceedings. Commonwealth v. Merriman, 265 S.W.3d 196, 2008 Ky. LEXIS 208 ( Ky. 2008 ).

A juvenile offender’s sentence of life without the possibility of parole for twenty-five (25) years was permissible under KRS 640.040(3) because the limitations on probation and parole were imposed by the sentence and not as a function of KRS 533.060 or KRS 439.3401 ; therefore, at the juvenile offender’s 18-year-old hearing, the trial court did not have the option of ordering probation or conditional discharge, nor did it have the ability to return him to juvenile custody to complete a treatment program. By virtue of the sentence itself, the trial court’s only option was to transfer the offender to adult custody. Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ), cert. denied, 558 U.S. 906, 130 S. Ct. 274, 175 L. Ed. 2d 184, 2009 U.S. LEXIS 5932 (U.S. 2009).

Merriman decision did not prevent application of Violent Offender Statute, KRS 439.3401(4) to former juvenile offender who had already received his second chance at probation under KRS 640.030(2); once he violated that probation the Uniform Juvenile Code afforded him no additional chance at probation. Harrod v. Edwards, 2010 Ky. App. LEXIS 205 (Ky. Ct. App. Oct. 29, 2010), sub. op., 2010 Ky. App. Unpub. LEXIS 1009 (Ky. Ct. App. Oct. 29, 2010), aff'd, 391 S.W.3d 755, 2013 Ky. LEXIS 4 ( Ky. 2013 ).

It was not error for the Department of Corrections (DOC) to classify defendant, who had been sentenced as a youthful offender, as a violent offender, with the attendant parole eligibility limitations, because, inter alia, under KRS 640.075 , youthful offenders in the custody of the Department of Juvenile Justice were subject to such parole restrictions, and the general assembly did not intend to give youthful offenders in DOC’s custody more lenient treatment. Edwards v. Harrod, 391 S.W.3d 755, 2013 Ky. LEXIS 4 ( Ky. 2013 ).

It was not error for the Department of Corrections (DOC) to classify defendant, who had been sentenced as a youthful offender, as a violent offender, with the attendant parole eligibility limitations, because, inter alia, KRS 640.040(3), barring applying limitations on probation, parole, or conditional discharge to youthful offenders, did not compel such a result, as the statute did not so state, and this interpretation was implausible given the youthful offender statutory scheme’s reference to the Violent Offender Statute, KRS 439.3401 . Edwards v. Harrod, 391 S.W.3d 755, 2013 Ky. LEXIS 4 ( Ky. 2013 ).

It was not error for the Department of Corrections (DOC) to classify defendant, who had been sentenced as a youthful offender, as a violent offender, with the attendant parole eligibility limitations, because, inter alia, a youthful offender’s parole eligibility was not at the parole board’s pure discretion, as the Violent Offender Statute, KRS 439.3401 , gave the parole board no authority to grant parole to violent offenders who had not served at least 85 percent of the offenders’ sentences, nor did KRS 640.080 give the parole board pure discretion to grant parole to youthful offenders. Edwards v. Harrod, 391 S.W.3d 755, 2013 Ky. LEXIS 4 ( Ky. 2013 ).

Trial court erred by sentencing defendant, a youthful offender, without first considering probation or another form of conditional discharge as a sentencing option because Kentucky’s Juvenile Code and the court’s holdings in Merriman, Buckner, and Edwards support the conclusion that the violent offender statute was not applicable to youthful offenders for purposes of consideration of probation, even if they were sentenced after they reached 18 years and five months. Thomas v. Commonwealth, 605 S.W.3d 545, 2020 Ky. LEXIS 279 ( Ky. 2020 ), cert. denied, 141 S. Ct. 1703, 209 L. Ed. 2d 473, 2021 U.S. LEXIS 1393 (U.S. 2021).

5.Violent Offender Status.

Prisoner’s petition for a declaration that the department of corrections erroneously designated him as a violent offender was properly denied because he automatically became a violent offender under the plain meaning of KRS 439.3401(1)( l ), which controlled over 501 Ky. Admin. Regs. 1:030(3)(1)(b), when he pled guilty to first degree robbery. Wathal v. Harrod, 229 S.W.3d 599, 2007 Ky. App. LEXIS 189 (Ky. Ct. App. 2007).

A defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation. Thus, the trial court’s failure to designate the defendant as a violent offender in the final judgment of conviction is, at least for purposes of this appeal, of no legal significance. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

Inmate was entitled to relief because trial counsel’s gross misadvice or nonadvice concerning parole eligibility may have amounted to ineffective assistance of counsel worthy of postconviction relief. All parties operated under the misapprehension that the inmate was not subject to violent offender status because the plea offer recommended probation and his sentence was probated, in violation of KRS 439.3401(3). Jacobi v. Commonwealth, 2011 Ky. App. LEXIS 83 (Ky. Ct. App. May 6, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 976 (Ky. Ct. App. May 6, 2011), review denied, ordered not published, 2013 Ky. LEXIS 314 (Ky. June 12, 2013).

Defendant, who sought relief from his guilty plea, stated a Sixth Amendment claim of ineffective assistance of counsel and was entitled to an evidentiary hearing on the merits of his claim. The misadvice allegedly given defendant—that he would become eligible for parole in six years whereas in fact as a violent offender he would not become eligible for twenty years required that defendant be granted the opportunity to prove his allegations of misadvice and prejudice, if any, at an evidentiary hearing. Commonwealth v. Pridham, 394 S.W.3d 867, 2012 Ky. LEXIS 161 ( Ky. 2012 ), cert. denied, 571 U.S. 922, 134 S. Ct. 312, 187 L. Ed. 2d 221, 2013 U.S. LEXIS 6473 (U.S. 2013).

Defendant convicted of robbery in the first degree qualifies as a violent offender pursuant to Ky. Rev. Stat. Ann. § 439.3401(1) regardless of whether the victim suffered serious physical injury or death and regardless of whether the trial court’s judgment addresses the victim’s status. Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 2020 Ky. LEXIS 399 ( Ky. 2020 ).

Benet v. Commonwealth, 253 S.W.3d 528 ( Ky. 2008 ), accurately interprets the requirements of Ky. Rev. Stat. Ann. § 439.3401(1) for violent offender status. The portion of Pate v. Department of Corrections, 466 S.W.3d 480 ( Ky. 2015 ), which is inconsistent with Benet is overruled. Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 2020 Ky. LEXIS 399 ( Ky. 2020 ).

Kentucky’s DOC properly classified appellant as a violent offender under Ky. Rev. Stat. Ann. § 439.3401(1) where he had been convicted of 12 counts of first-degree robbery. Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 2020 Ky. LEXIS 399 ( Ky. 2020 ).

In a case in which the judgment did not mention that the victim suffered death, the trial court did not err in granting the Commonwealth’s motion to amend its judgment to reflect that the victim had died in connection with the underlying offenses because the omission was a clerical, not a judicial, error as the final judgment was inconsistent with the evidence in the record, including the indictment, plea agreement, and the understanding of the parties, which clearly reflected that the victim of the underlying crimes suffered death; and the rule regarding correction of clerical mistakes permitted the trial court to correct a clerical error at any time on its own initiative. 2022 Ky. App. LEXIS 9 .

6.Minimum Parole Eligibility.

In order to avoid the denial of equal protection and failure of due process which would otherwise result from a literal interpretation of subsections (2) and (3) of this section, the Supreme Court concluded that it was the intention of the legislature, in determining minimum parole eligibility of those violent offenders who committed offenses after July 15, 1986, to require service of 50% of a term of years or 12 years, whichever is less, before parole eligibility. Sanders v. Commonwealth, 844 S.W.2d 391, 1992 Ky. LEXIS 171 ( Ky. 1992 ).

Trial court did not deny defendant his right to due process when it found that defendant was a violent offender and that the victim suffered serious physical injury; here, there was sufficient evidence to show that defendant inflicted wounds which subjected the victim to substantial risk of death and caused disfigurement. Brooks v. Commonwealth, 114 S.W.3d 818, 2003 Ky. LEXIS 213 ( Ky. 2003 ).

Inmate’s guilty plea to charges of first-degree assault, KRS 508.010 , necessarily meant that his victims suffered serious physical injury, and thus the inmate was properly considered a violent offender for sentencing purposes pursuant to KRS 439.3401(1); even though the inmate’s final judgment did not expressly state that he had been convicted of a class B felony involving the death or serious injury of the victim, the inmate was still properly considered a “violent offender,” and the inmate’s mandamus petition was properly dismissed. Jackson v. Taylor, 153 S.W.3d 842, 2004 Ky. App. LEXIS 36 (Ky. Ct. App. 2004).

Because KRS 439.3401(1) applied to all convictions for first-degree sodomy regardless of whether the victim suffered death or serious physical injury, the Department of Corrections properly classified an inmate as a “violent offender,” precluding parole until 85% of the inmate’s sentence had been served. Fambrough v. Dep't of Corr., 184 S.W.3d 561, 2006 Ky. App. LEXIS 31 (Ky. Ct. App. 2006).

Petitioner’s habeas petition was denied because (1) the state court’s finding that KRS 439.3401(7) did not require a 12-year maximum parole review deferral period under state law was not contrary to or involve an unreasonable application of United States Supreme Court precedents; (2) the changes in the parole procedure did not violate the Ex Post Facto Clause as petitioner failed to show that the new procedure would result in a longer period of incarceration based on evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion; (3) petitioner had no liberty interest in parole and could not benefit from the protection of the Due Process Clause; (4) parole determinations were not considered criminal punishment for purposes of the Double Jeopardy Clause, and thus, the Kentucky Parole Board could deny parole based on the nature or circumstances of petitioner’s underlying conviction; and (5) petitioner failed to assert a legally cognizable Equal Protection claim as he failed to allege that he was treated differently based on a “suspect classification.” Johnson v. Motley, 2008 U.S. Dist. LEXIS 53299 (E.D. Ky. July 14, 2008).

Defendant was not entitled to relief from defendant’s guilty plea on grounds that defendant was unaware that defendant would be sentenced as a persistent felony offender (PFO) because (1) defendant’s signed and acknowledged plea agreement said the Commonwealth would recommend a ten-year sentence enhanced to 20 years by defendant’s PFO indictment, which defendant received, and (2) defendant’s RCr P. 11.42 motion said defendant was advised that if defendant pled guilty defendant would receive a 20-year sentence and be eligible for parole after four years, so defendant was not misinformed about defendant’s PFO-enhanced sentence. Stiger v. Commonwealth, 381 S.W.3d 230, 2012 Ky. LEXIS 155 ( Ky. 2012 ).

It is not unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility. Commonwealth v. Pridham, 394 S.W.3d 867, 2012 Ky. LEXIS 161 ( Ky. 2012 ), cert. denied, 571 U.S. 922, 134 S. Ct. 312, 187 L. Ed. 2d 221, 2013 U.S. LEXIS 6473 (U.S. 2013).

7.Probation.

The trial court erred in concluding that the violent offender statute, which limits the parole power of the executive branch, also limits the power of the courts to consider probation. Mullins v. Commonwealth, 956 S.W.2d 222, 1997 Ky. App. LEXIS 30 (Ky. Ct. App. 1997).

8.Victim of Domestic Abuse Exemption.

The standard of proof necessary pursuant to KRS 403.720(1) to establish that a person is a victim of domestic violence and therefore exempt from the requirements of subsection (3) (now (5)) of this section, the violent offender statute, is the preponderance of the evidence standard set forth in KRS 403.740 and merely requires that the evidence believed by the fact-finder be sufficient that the defendant was more likely than not to have been a victim of domestic violence. Commonwealth v. Anderson, 934 S.W.2d 276, 1996 Ky. LEXIS 121 ( Ky. 1996 ).

Where the evidence did not support a finding that defendant had been a victim of domestic violence in that he did not offer proof that he had ever suffered serious physical injury or that he had been sexually abused or assaulted as a result of his wife’s actions and although wife had threatened to harm him and burn down their house neither he nor other family members testified that they actually feared she would carry out her threats and defendant was not aware of her threats until after the shooting, the Circuit Court properly denied defendant’s motion for exemption from the restrictions of this section and 533.060 . Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

A violent offender had to serve at least 85 percent of her sentence unless she was determined to have been a victim of domestic violence or abuse; defendant was not a victim of domestic violence or abuse for purposes of subsection (5) because defendant had agreed that domestic violence was not part of the offense for which defendant was being sentenced. Wicks v. Commonwealth, 2001 Ky. App. LEXIS 85 (Ky. Ct. App. Aug. 3, 2001).

KRS 403.720(2) was ambiguous in its method of determining kinship within the second degree, and since, in interpreting an ambiguous penal statute, doubt was to have been resolved in favor of the accused, the common law method for computing kinship was applied in interpreting KRS 403.720(2); use of the common law method for computing kinship brought defendant’s manslaughter case within the availability of the exception for victims of domestic violence, since the victim, defendant’s cousin, was related to defendant’s mother in the second degree, and defendant claimed that he shot the victim after the victim had attacked and choked defendant’s mother. Kirby v. Commonwealth, 132 S.W.3d 233, 2004 Ky. App. LEXIS 82 (Ky. Ct. App. 2004).

Matter was remanded to the trial court for further consideration over whether or not defendant was entitled to parole leniency pursuant to KRS 439.3401(5) because there was evidence that she had been the victim of domestic violence at the hands of her spouse around the time that she killed him. Defendant was not precluded from receiving the exemption simply because her crime did not involve the use of a weapon as contemplated by KRS 533.060 . Holland v. Commonwealth, 192 S.W.3d 433, 2005 Ky. App. LEXIS 290 (Ky. Ct. App. 2005).

Application of exemption under KRS 439.3401(5) for a victim of domestic violence was potentially applicable in a situation where defendant could provide evidence that she was in an abusive relationship at the time that the crime was committed, even if at the actual time that the crime was committed the abusive victim was not engaging in a violent act against defendant. Holland v. Commonwealth, 192 S.W.3d 433, 2005 Ky. App. LEXIS 290 (Ky. Ct. App. 2005).

When defendant was convicted of manslaughter, and he claimed his counsel provided ineffective assistance because counsel did not move the trial court to exempt him from serving 85 percent of his sentence, as was the general rule for violent offenders, under the exemption in KRS 439.3401(5), material fact issues existed as to whether defendant qualified for the exemption, so the matter had to be remanded for an evidentiary hearing. Fuston v. Commonwealth, 217 S.W.3d 892, 2007 Ky. App. LEXIS 70 (Ky. Ct. App. 2007).

Circuit court committed clear error in concluding that the domestic violence exception to the violent offender statute under subsection (5) of this section did not apply to defendant. The exception applied because the facts showed that a family member of defendant — his sister — was a domestic violence victim as defined in KRS 403.720(2), that the homicide victim and defendant’s sister were members of an unmarried couple, that the violence between the homicide victim and defendant’s sister satisfied the definition of domestic violence under KRS 403.720(1), and that a connection existed between the domestic violence and the victim’s death. Fuston v. Commonwealth, 2009 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 21, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1088 (Ky. Ct. App. Aug. 21, 2009), review denied, ordered not published, 2010 Ky. LEXIS 31 (Ky. Jan. 13, 2010).

Where defendant killed his sister’s abusive boyfriend, substantial evidence supported a conclusion that there was a connection between the domestic violence and the offense charged for purposes of the domestic violence exception to the violent offender statute under subsection (5) because the evidence established that the boyfriend’s acts of violence against defendant’s sister made defendant fearful of the boyfriend, that the boyfriend had violently assaulted defendant’s sister earlier that day, that defendant and other family members were at her apartment to repair a telephone damaged in the altercation, that the boyfriend — who was much larger than defendant — returned to the apartment and caused fear in all present, and that the boyfriend advanced menacingly toward defendant before defendant shot him. Fuston v. Commonwealth, 2009 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 21, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1088 (Ky. Ct. App. Aug. 21, 2009), review denied, ordered not published, 2010 Ky. LEXIS 31 (Ky. Jan. 13, 2010).

Where defendant killed his sister’s abusive boyfriend, substantial evidence supported a conclusion that the boyfriend and defendant’s sister were members of an unmarried couple as defined in KRS 403.720(2) for purposes of the domestic violence exception to the violent offender statute under subsection (5) because the evidence established that the boyfriend lived in the sister’s apartment and help pay the bills. Further, a district court had previously determined that the sister and boyfriend were part of an unmarried couple when it issued a domestic violence order pursuant to KRS 403.725 , which clearly required that only a family member or member of an unmarried couple could obtain such an order. Fuston v. Commonwealth, 2009 Ky. App. LEXIS 140 (Ky. Ct. App. Aug. 21, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1088 (Ky. Ct. App. Aug. 21, 2009), review denied, ordered not published, 2010 Ky. LEXIS 31 (Ky. Jan. 13, 2010).

Circuit court, on remand, erred in denying defendant’s motion to be classified as a domestic violence victim because the parties and the circuit court all agreed that defendant was a victim of domestic violence (physical and verbal abuse) during his marriage to the victim, there was no evidence to contradict defendant’s position that he had smothered his wife with a pillow to quiet and restrain her on the night of the incident, and defendant successfully connected the physical and verbal domestic violence to the crime he committed inasmuch as the victim not only taunted defendant about her relationship with her sister’s husband, but she also physically attacked him, biting him on the chest and nipple. Crowe v. Commonwealth, 2019 Ky. App. LEXIS 41 (Ky. Ct. App. Mar. 29, 2019), aff'd, 610 S.W.3d 218, 2020 Ky. LEXIS 393 ( Ky. 2020 ).

Whether a defendant is a victim of domestic violence or abuse for purposes of Ky. Rev. Stat. Ann. § 439.3401(5) is a factual finding that is reviewed for clear error. Whether the domestic violence or abuse endured by a defendant occurred with regard to the offenses committed by that defendant is a mixed question of law and fact and is reviewed de novo. Commonwealth v. Crowe, 610 S.W.3d 218, 2020 Ky. LEXIS 393 ( Ky. 2020 ).

Trial court’s factual findings that defendant was a victim of domestic violence were supported by substantial evidence, but it erred in determining that defendant was not a victim of domestic violence with regard to the manslaughter given the testimony of domestic violence perpetrated by the victim, pictures of defendant’s injuries days later, and the Commonwealth’s lack of evidence to controvert his version of events or undermine his credibility. Commonwealth v. Crowe, 610 S.W.3d 218, 2020 Ky. LEXIS 393 ( Ky. 2020 ).

9.Statement of Commonwealth's Attorneys.

Though Commonwealth’s attorney correctly pointed out in his opening statement that the 12 years he was referring to was the minimum parole eligibility, his closing statement could easily be interpreted as stating that defendant would be released at the end of 12 years. This being particularly prejudicial to defendant, requires reversal and remand for new trial. Whitaker v. Commonwealth, 895 S.W.2d 953, 1995 Ky. LEXIS 21 ( Ky. 1995 ), overruled, Calhoun v. Commonwealth, 492 S.W.3d 132, 2016 Ky. LEXIS 249 ( Ky. 2016 ).

10.Admissible Statements.

In defendant’s appeal of her first murder conviction the Supreme Court reversed the trial court’s order that she would be eligible for parole after 20 years; though this ruling was the law of the case in defendant’s re-trial as the Supreme Court’s initial ruling was clearly and palpably erroneous, it held that defendant was in fact eligible for parole in 20 years, despite its earlier ruling to the contrary. Hampton v. Commonwealth, 133 S.W.3d 438, 2004 Ky. LEXIS 41 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 127 (Ky. May 20, 2004).

11.Voir Dire.

The trial court did not permit defense counsel to inform the prospective jurors on voir dire examination that under the “violent offender” statute defendant would not be eligible for parole until he had served fifty percent (50%) of his term of imprisonment, and the trial court correctly ruled that matters concerning parole eligibility should not be explored until the penalty phase of a bifurcated trial, although the trial court did permit the jury to be informed as to the range of permissible punishment being from twenty (20) years to life imprisonment. Snodgrass v. Commonwealth, 814 S.W.2d 579, 1991 Ky. LEXIS 114 ( Ky. 1991 ).

12.Jury Instructions.

It was error for the trial court not to instruct the jury that, standing convicted of a capital offense, defendant would be ineligible for parole for 12 years, regardless of the sentence imposed, and where the jury labored under misinformation as to that element of sentencing, resentencing was in order. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

Though jury was not advised of the interpretation of Sanders v. Commonwealth, 844 S.W.2d 391, 394, 1992 Ky. LEXIS 171 ( Ky. 1993 ), that sections (2) and (3) of this section shall be interpreted to provide that parole eligibility for “violent offenders” shall be 50 percent of the term of years or 12 years, whichever is less, sentence need not be reduced where jury recommended life imprisonment and they were therefore correctly informed of the parole eligibility, but had sentence been for a term of more than twenty four (24) years, then sentence would have been reversed and remanded. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

13.Ineffective Assistance.

When defense counsel advised defendant that, if defendant pled guilty, defendant would receive a 20-year sentence and be eligible for parole after four years, this was deficient performance under the Strickland test because (1) the parole eligibility consequences imposed by the violent offender statute were sufficiently penalty-like, severe, and enmeshed with a sentence to be deemed like deportation, and (2) the statute was clear and explicit so that the consequences could be easily determined by simply reading the statute. Stiger v. Commonwealth, 381 S.W.3d 230, 2012 Ky. LEXIS 155 ( Ky. 2012 ).

Defendant was not entitled to relief when defense counsel incorrectly advised defendant that, if defendant pled guilty, defendant would receive a 20-year sentence and be eligible for parole after four years, when defendant was not eligible for parole for 17 years, because defendant did not show the incorrect advice resulted in prejudice, as defendant alleged no facts showing that it would have been rational, absent the error, for defendant to reject a plea bargain and go to trial, as defendant alleged no defenses to three of the five robberies defendant was charged with and defendant was at least a second-degree persistent felony offender, subjecting defendant to a minimum 20-year sentence and, very possibly, a much greater sentence. Stiger v. Commonwealth, 381 S.W.3d 230, 2012 Ky. LEXIS 155 ( Ky. 2012 ).

Parole eligibility consequences imposed by the violent offender statute are sufficiently penalty-like, severe, and enmeshed with a sentence to be deemed like deportation, and the statute is clear and explicit so that the consequences may be easily determined by simply reading the statute, so counsel has a duty accurately to apprise his or her client of the violent offender statute’s effect on his or her parole eligibility. Stiger v. Commonwealth, 381 S.W.3d 230, 2012 Ky. LEXIS 155 ( Ky. 2012 ).

14.Right to Counsel.

When defendant entered a guilty plea to first-degree robbery, a violent offense, the trial court erred by sentencing him because he was not represented by counsel as guaranteed by the Sixth Amendment. If the crime of which the defendant is charged is punishable by confinement and the defendant is financially unable to employ counsel, the judge shall appoint counsel to represent the defendant unless he or she elects to proceed without counsel. Carrigan v. Commonwealth, 414 S.W.3d 16, 2013 Ky. App. LEXIS 135 (Ky. Ct. App. 2013).

Cited in:

Springer v. Commonwealth, 998 S.W.2d 439, 1999 Ky. LEXIS 56 ( Ky. 1999 ); Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ); Grigsby v. Commonwealth, 302 S.W.3d 52, 2010 Ky. LEXIS 20 ( Ky. 2010 ); Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ); Newcomb v. Commonwealth, 410 S.W.3d 63, 2013 Ky. LEXIS 83 ( Ky. 2013 ); Grider v. Commonwealth, 2013 Ky. App. LEXIS 129 (Ky. Ct. App. Aug. 16, 2013).

Opinions of Attorney General.

The application of Section 1 of House Bill 7, which revises this section to offenses committed before the effective date, would constitute an ex post facto law in violation of the United States Constitution and the Kentucky Constitution since the effect of the Bill would be to increase the minimum sentence for the offense of murder, when a sentence other than life imprisonment or death was imposed, from 12 years under the current law to 50% of the sentence of years imposed. OAG 91-26 .

The deletion of Section 2 of House Bill 7, which requires that the amendment contained in Section 1 of the Bill apply only to criminal offenses committed after the effective date of the Bill, will not effect the application of the proposed revision of this section because of the constitutional prohibition against ex post facto laws and because of the requirement of KRS 446.080(3) that retrospective bills contain an express statement of retroactivity. OAG 91-26 .

Shock probation for persons convicted of a DUI vehicular homicide does not constitute an exercise of absolute and arbitrary power in violation of the Kentucky Constitution, although it is questionable as public policy. OAG 11-005 , 2011 Ky. AG LEXIS 215 (2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Kentucky Law Journal.

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

439.3401. Parole for violent offenders — Applicability of section to victim of domestic violence or abuse — Time of offense — Prohibition against award of credit.

  1. As used in this section, “violent offender” means any person who has been convicted of or pled guilty to the commission of:
    1. A capital offense;
    2. A Class A felony;
    3. A Class B felony involving the death of the victim or serious physical injury to a victim;
    4. An offense described in KRS 507.040 or 507.050 where the offense involves the killing of a peace officer, firefighter, or emergency medical services personnel while the peace officer, firefighter, or emergency medical services personnel was acting in the line of duty;
    5. A Class B felony involving criminal attempt to commit murder under KRS 506.010 if the victim of the offense is a clearly identifiable peace officer, firefighter, or emergency medical services personnel acting in the line of duty, regardless of whether an injury results;
    6. The commission or attempted commission of a felony sexual offense described in KRS Chapter 510;
    7. Use of a minor in a sexual performance as described in KRS 531.310 ;
    8. Promoting a sexual performance by a minor as described in KRS 531.320 ;
    9. Unlawful transaction with a minor in the first degree as described in KRS 530.064(1)(a);
    10. Human trafficking under KRS 529.100 involving commercial sexual activity where the victim is a minor;
    11. Criminal abuse in the first degree as described in KRS 508.100 ;
    12. Burglary in the first degree accompanied by the commission or attempted commission of an assault described in KRS 508.010 , 508.020 , 508.032 , or 508.060 ;
    13. Burglary in the first degree accompanied by commission or attempted commission of kidnapping as prohibited by KRS 509.040 ;
    14. Robbery in the first degree; or
    15. Incest as described in KRS 530.020(2)(b) or (c). The court shall designate in its judgment if the victim suffered death or serious physical injury.
  2. A violent offender who has been convicted of a capital offense and who has received a life sentence (and has not been sentenced to twenty-five (25) years without parole or imprisonment for life without benefit of probation or parole), or a Class A felony and receives a life sentence, or to death and his or her sentence is commuted to a life sentence shall not be released on probation or parole until he or she has served at least twenty (20) years in the penitentiary. Violent offenders may have a greater minimum parole eligibility date than other offenders who receive longer sentences, including a sentence of life imprisonment.
    1. A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed. (3) (a) A violent offender who has been convicted of a capital offense or Class A felony with a sentence of a term of years or Class B felony shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.
    2. A violent offender who has been convicted of a violation of KRS 507.040 where the victim of the offense was clearly identifiable as a peace officer, a firefighter, or emergency medical services personnel, and the victim was acting in the line of duty shall not be released on probation or parole until he or she has served at least eighty-five percent (85%) of the sentence imposed.
    3. A violent offender who has been convicted of a violation of KRS 507.040 or 507.050 where the victim of the offense was a peace officer, a firefighter, or emergency medical services personnel, and the victim was acting in the line of duty shall not be released on probation or parole until he or she has served at least fifty percent (50%) of the sentence imposed.
    4. Any offender who has been convicted of a homicide or fetal homicide offense under KRS Chapter 507 or 507A in which the victim of the offense died as the result of an overdose of a Schedule I controlled substance and who is not otherwise subject to paragraph (a), (b), or (c) of this subsection shall not be released on probation, shock probation, parole, conditional discharge, or other form of early release until he or she has served at least fifty percent (50%) of the sentence imposed.
  3. A violent offender shall not be awarded any credit on his sentence authorized by KRS 197.045(1)(b)1. In no event shall a violent offender be given credit on his or her sentence if the credit reduces the term of imprisonment to less than eighty-five percent (85%) of the sentence.
  4. This section shall not apply to a person who has been determined by a court to have been a victim of domestic violence or abuse pursuant to KRS 533.060 with regard to the offenses involving the death of the victim or serious physical injury to the victim. The provisions of this subsection shall not extend to rape in the first degree or sodomy in the first degree by the defendant.
  5. This section shall apply only to those persons who commit offenses after July 15, 1998.
  6. For offenses committed prior to July 15, 1998, the version of this statute in effect immediately prior to that date shall continue to apply.
  7. The provisions of subsection (1) of this section extending the definition of “violent offender” to persons convicted of or pleading guilty to robbery in the first degree shall apply only to persons whose crime was committed after July 15, 2002.

HISTORY: Enact. Acts 1986, ch. 358, § 1, effective July 15, 1986; 1991 (1st Ex. Sess.), ch. 3, § 1, effective February 15, 1991; 1992, ch. 173, § 4, effective July 14, 1992; 1998, ch. 606, § 77, effective July 15, 1998; 2000, ch. 401, § 3, effective July 14, 2000; 2002, ch. 120, § 2, effective July 15, 2002; 2006, ch. 182, § 27, effective July 12, 2006; 2007, ch. 19, § 11, effective June 26, 2007; 2011, ch. 2, § 99, effective June 8, 2011; 2013, ch. 101, § 1, effective June 25, 2013; 2015 ch. 66, § 19, effective March 25, 2015; 2018 ch. 89, § 15, effective July 1, 2018; 2018 ch. 115, § 10, effective July 14, 2018; 2019 ch. 136, § 1, effective June 27, 2019; 2022 ch. 14, § 1.

439.3402. Exemption from KRS 439.3401 for victims of domestic violence and abuse — Procedures — Effect.

  1. Any violent offender as defined in KRS 439.3401 who was convicted prior to July 14, 1992, who claims to come within the definitions of KRS 503.050 and 533.060 and the purview of this section as the victim of domestic violence and abuse may be exempt from KRS 439.3401 under the conditions set forth in this section.
    1. The offender shall file a motion in the Circuit Court in which the offender was convicted stating the facts which qualify the offender for exemption under this section. (2) (a) The offender shall file a motion in the Circuit Court in which the offender was convicted stating the facts which qualify the offender for exemption under this section.
    2. The motion shall state whether the offender requests an evidentiary hearing, or whether the offender relies on the record of evidence already on file with the Circuit Court.
    3. If the offender requests an evidentiary hearing the motion shall state what witnesses the offender wishes to testify and a brief summary of each witness’ expected testimony.
    4. The motion shall state whether the offender wishes the court to appoint counsel to represent the offender or what attorney, if any, will represent the offender at the hearing. The appointment of counsel by the court shall be made in conformity with the provisions of KRS Chapter 31.
    1. The Commonwealth shall respond to the motion within twenty (20) days after the motion was filed. (3) (a) The Commonwealth shall respond to the motion within twenty (20) days after the motion was filed.
    2. If the Commonwealth requests an evidentiary hearing and the offender did not, the Commonwealth’s response shall state what witnesses and evidence the Commonwealth intends to introduce.
    3. The Commonwealth may stipulate to the offender’s evidence stated in the motion in lieu of the evidentiary hearing.
  2. The Circuit Court shall hold any evidentiary hearing within thirty (30) days after the Commonwealth’s response was filed, or if the Commonwealth did not respond, within sixty (60) days.
  3. The Circuit Court shall issue findings of fact and an order ruling upon the motion within thirty (30) days after the evidentiary hearing, or if no hearing was held, within sixty (60) days after the Commonwealth’s response was filed or due to be filed.
  4. The order of the Circuit Court may be appealed in the manner as authorized for judgments in criminal cases.
  5. Only one (1) motion under this section may be filed by the same offender regarding the same conviction.
  6. The effect of granting a motion under this section is to remove the status as a violent offender for the offense for which the motion was filed and permit the offender to be eligible for parole in the manner specified in KRS 439.340 .

History. Enact. Acts 1992, ch. 173, § 5, effective July 14, 1992.

Compiler’s Notes.

Section 6 of Acts 1992, ch. 173 read, “Section 5 of this Act shall be retroactive and apply to offenses committed after July 15, 1986, and prior to the effective date of this Act.”

Research References and Practice Aids

Kentucky Law Journal.

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

439.3403. Reconsideration of parole of inmate given deferment or serve-out longer than sixty months — Exceptions — Hearings.

  1. Except as provided in subsection (2) of this section, the board shall reconsider the parole of any prisoner as of June 8, 2011, was given a deferment or serve-out of longer than sixty (60) months at the prisoner’s most recent parole hearing.
  2. No reconsideration shall be required under this section for any prisoner who has received a deferment or serve-out of longer than sixty (60) months if:
    1. The deferment or serve-out was approved by a majority vote of the full board; or
    2. The prisoner stands convicted of a criminal offense currently defined as a violent offense in KRS 439.3401 or as a sex crime in KRS 17.500 , regardless of the date the crime was committed or the date of conviction.
  3. The board shall schedule parole hearings for prisoners eligible for reconsideration of parole under this section according to the following schedule:
    1. For a prisoner who has served less than sixty (60) months of his or her sentence as of June 8, 2011, the board shall schedule and conduct a parole hearing during the month the prisoner has served sixty (60) months of his or her sentence; and
    2. For a prisoner who has served more than sixty (60) months of his or her sentence as of June 8, 2011, the board shall schedule and conduct a parole hearing within twelve (12) months of June 8, 2011.
  4. The department shall provide all necessary assistance and information to the board in accordance with KRS 439.340 in order for the board to conduct timely hearings under subsection (1) of this section.
  5. Parole hearings required under subsection (1) of this section shall be conducted in accordance with and subject to the provisions of KRS 439.250 to 439.560 , including but not limited to the requirements relating to notification of victims, the authority of the board to conduct hearings by panels of the board, and the requirement to keep records relating to the hearings.

History. Enact. Acts 2011, ch. 2, § 33, effective June 8, 2011.

439.3405. Parole of prisoners with documented terminal medical conditions — Hearing.

  1. Notwithstanding any statute eliminating parole or establishing minimum time for parole eligibility for a certain class or status of offender, including KRS 439.340(11), 439.3401 , 532.080(7), and 533.060 , the board, with the written consent of a majority of the full board, may review the case of any prisoner and release that prisoner on parole despite any elimination of or minimum time for parole eligibility, when the prisoner has a documented terminal medical condition likely to result in death within one (1) year or severe chronic lung disease, end-stage heart disease, severe neuro-muscular disease such as multiple sclerosis; or has severely limited mobility as a result of stroke, disease, or trauma; or is dependent on external life support systems and would not pose a threat to society if paroled.
  2. Medical information considered under this section shall be limited to the medical findings supplied by Department of Corrections medical staff. The medical staff shall provide in writing the prisoner’s diagnosis and prognosis in support of the conclusion that the prisoner suffers from a terminal medical condition likely to result in death within one (1) year or because of the conditions set forth in subsection (1) of this section he or she is substantially dependent on others for the activities of daily living.
  3. The medical information prepared by the Department of Corrections medical staff under this section shall be forwarded to the medical director of the Department of Corrections who shall submit that information and a recommendation for or against parole review under this section to the commissioner of the Department of Corrections or his or her designee. With the approval of the commissioner of the Department of Corrections, a request for parole review under this section, along with the medical information and medical director’s recommendation, shall be submitted to the board.
  4. Medical information presented under this section shall be considered along with other information relevant to a decision regarding the granting of parole and shall not constitute the only reason for granting parole.
  5. Notwithstanding KRS 439.340(5), in addition to or in conjunction with each review conducted under subsection (1) of this section for any prisoner convicted of a Class A or B felony, or of a Class C felony involving violence or a sexual offense and prior to the granting of parole to any such prisoner, the Parole Board shall conduct a hearing of which the following persons shall receive not less than fifteen (15) nor more than thirty (30) days’ notice:
    1. The Commonwealth’s attorney, who shall notify the sheriff of every county and the chief of police of every city and county in which the prisoner committed any Class A, B, or C felony for which he or she is imprisoned; and
    2. All identified victims of the crimes or the next of kin of any victim who is deceased.

Notice to the Commonwealth’s attorney shall be by mail, fax, or electronic means, at the discretion of the board, and shall be in a manner that ensures receipt at the Commonwealth attorney’s business office. Notices received by chiefs of police and sheriffs shall be posted in a conspicuous location where police employed by the department may see it. Notices shall be posted in a manner and at a time that will allow officers to make comment thereon to the Parole Board. Notice to victims or their next of kin shall be made by mail, fax, or electronic means, at the discretion of the board, to their last known address or telephone number as provided by the Commonwealth’s attorney to the Parole Board at the time of incarceration of the prisoner. Notice to the victim or the next of kin of subsequent considerations for parole after the initial consideration shall not be sent if the victim or the next of kin gives notice to the board that he or she no longer wants to receive such notices. The notice shall include the time, date, and place of the hearing provided for in this subsection, and the name and address of a person to write if the recipient of the notice desires to attend the hearing or to submit written comments.

History. Enact. Acts 1994, ch. 179, § 5, effective April 4, 1994; 1998, ch. 606, § 78, effective July 15, 1998; 2007, ch. 128, § 1, effective June 26, 2007; 2011, ch. 2, § 28, effective June 8, 2011.

Research References and Practice Aids

Kentucky Bench & Bar.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

439.3406. Mandatory reentry supervision six months prior to projected completion date of inmate’s sentence for inmate not granted discretionary parole — Exceptions — Terms of supervision — No credit for time absconding — Report.

  1. The board shall order mandatory reentry supervision six (6) months prior to the projected completion date of an inmate’s sentence for an inmate who has not been granted discretionary parole.
  2. The provisions of subsection (1) of this section shall not apply to an inmate who:
    1. Is not eligible for parole by statute;
    2. Has been convicted of a capital offense or a Class A felony;
    3. Has a maximum or close security classification as defined by administrative regulations promulgated by the department;
    4. Has been sentenced to two (2) years or less of incarceration;
    5. Is subject to the provisions of KRS 532.043 ;
    6. Has six (6) months or less to be served after his or her sentencing by a court or recommitment to prison for a violation of probation, shock probation, parole, or conditional discharge;
    7. If recommitted to prison for a violation of probation, shock probation, parole, or conditional discharge, has not served at least six (6) months since being recommitted; or
    8. Has twice been released on mandatory reentry supervision.
  3. An inmate granted mandatory reentry supervision pursuant to this section may be returned by the board to prison for violation of the conditions of supervision and shall not again be eligible for mandatory reentry supervision during the same period of incarceration.
  4. An inmate released to mandatory reentry supervision shall be considered to be released on parole.
  5. Mandatory reentry supervision is not a commutation of sentence or any other form of clemency.
  6. No hearing shall be required for the board to order an inmate to mandatory reentry supervision pursuant to subsection (1) of this section. Terms of supervision for inmates released on mandatory reentry supervision shall be established as follows:
    1. The board shall adopt administrative regulations establishing general conditions applicable to each inmate ordered to mandatory reentry supervision pursuant to subsection (1) of this section. If an inmate is ordered to mandatory reentry supervision, the board’s order shall set forth the general conditions and shall require the inmate to comply with the general conditions and any requirements imposed by the department in accordance with this section;
    2. Upon intake of an inmate ordered to mandatory reentry supervision by the board, the department shall use the results of the risk and needs assessment administered pursuant to KRS 439.3104(1) to establish appropriate terms and conditions of supervision, taking into consideration the level of risk to public safety, criminal risk factors, and the need for treatment and other interventions. The terms and conditions imposed by the department under this paragraph shall not conflict with the general conditions adopted by the board pursuant to paragraph (a) of this subsection; and
    3. The powers and duties assigned to the commissioner in relation to probation or parole under KRS 439.470 shall be assigned to the commissioner in relation to mandatory reentry supervision.
  7. Subject to subsection (3) of this section, the period of mandatory reentry supervision shall conclude upon completion of the individual’s minimum expiration of sentence.
  8. If the board issues a warrant for the arrest of an inmate for absconding from supervision during the mandatory reentry supervision period, and the inmate is subsequently returned to prison as a violator of conditions of supervision for absconding, the inmate shall not receive credit toward the remainder of his or her sentence for the time spent absconding.
  9. The department shall report the results of the mandatory reentry supervision program to the Interim Joint Committee on Judiciary by February 1, 2015.

HISTORY: Enact. Acts 2011, ch. 2, § 34, effective January 1, 2012; 2012, ch. 156, § 14, effective July 12, 2012; 2013, ch. 69, § 10, effective June 25, 2013; 2017 ch. 158, § 15, effective June 29, 2017.

439.3407. Conditional parole of state inmates to be served in local correctional facility, jail, or reentry center — Administrative regulations — Work release.

  1. The department may promulgate administrative regulations to implement conditional parole of state inmates incarcerated in state corrections institutions or local correctional facilities or county jails to place those individuals closer to their communities prior to release. A parolee placed on conditional parole shall serve that term in a local correctional facility or county jail or reentry center in a county in which the fiscal court has agreed to house parolees if beds are available in the local correctional facility or county jail or reentry center.
  2. The department may authorize parolees on conditional parole to be placed on work release. If a person placed in a county jail on conditional parole under subsection (1) of this section is granted work release, he or she shall pay the work release fees required by law to the jailer. The amount of work release fees paid by a parolee shall be deducted from the amount which the Department of Corrections shall pay for the placement of that parolee.
  3. Local correctional facilities or county jails housing parolees under subsection (1) of this section shall have the same rights and obligations as jails housing felons pursuant to KRS 532.100 .
  4. Administrative regulations promulgated pursuant to subsection (1) of this section relating to eligibility of an individual for conditional parole shall take into consideration, at a minimum, the following information about the individual:
    1. The offense for which the individual was convicted and his or her rehabilitation efforts while incarcerated;
    2. The security classification while incarcerated in the state correctional institution;
    3. Conduct while incarcerated in the state correctional institution;
    4. Ability to find employment in the community; and
    5. The availability of additional applicable education, treatment or intervention, and training for employment in the local correctional facility or county jail, if needed by the individual.

History. Enact. Acts 2011, ch. 2, § 39, effective June 8, 2011; 2017 ch. 158, § 92, effective June 29, 2017; 2020 ch. 109, § 5, effective April 24, 2020.

439.3408. Department to approve any acceptable housing for parolees.

When considering appropriate housing options for a person considered for parole or a person who is being paroled, the department shall approve any form of acceptable housing, including but not limited to apartments, shelters for homeless or other persons, county jails or restricted custody facilities that a county approves for parolees, educational institutions with dormitories if the parolee is enrolled or accepted for enrollment at an educational institution, halfway houses, reentry centers, residential treatment or other programs in which the parolee is enrolled or accepted for enrollment, and other forms of transitional housing meeting the requirements of applicable statutes.

HISTORY: Enact. Acts 2011, ch. 2, § 41, effective June 8, 2011; 2017 ch. 158, § 93, effective June 29, 2017.

439.341. Probable cause revocation hearings of probation, parole, and postincarceration supervision violators.

Probable cause revocation hearings of probation, parole, and postincarceration supervision violators shall be conducted by hearing officers. These hearing officers shall be attorneys, appointed by the board and admitted to practice in Kentucky, who shall perform the aforementioned duties and any others assigned by the board.

History. Enact. Acts 1978, ch. 259, § 3, effective June 17, 1978; 1980, ch. 208, § 3, effective July 15, 1980; 2011, ch. 2, § 88, effective March 3, 2011; 2020 ch. 44, § 5, effective July 15, 2020.

439.342. Retention of prisoner on parole.

The board may retain any prisoner on parole for a period of at least one (1) year.

History. Enact. Acts 1962, ch. 82, § 1.

NOTES TO DECISIONS

Cited in:

Wingo v. Lyons, 432 S.W.2d 821, 1968 Ky. LEXIS 360 ( Ky. 1968 ).

Opinions of Attorney General.

When the parole board grants parole to any prisoner with less than one (1) year remaining on his sentence, this section authorizes the board to retain the prisoner on parole for a period of one (1) year notwithstanding the provisions of KRS 439.354 . OAG 68-485 .

439.344. Effect of parole time on sentence — Exceptions.

The period of time spent on parole shall count as a part of the prisoner’s sentence, except when a parolee is:

  1. Returned to prison as a parole violator for a new felony conviction;
  2. Returned to prison as a parole violator after charges have been filed or an indictment has been returned for a felony offense committed while on parole and the prisoner is subsequently convicted of that offense;
  3. Returned to prison as a parole violator and is subsequently convicted of a felony offense committed while on parole;
  4. Returned to prison as a parole violator for absconding from parole supervision, except that the time spent on parole prior to absconding shall count as part of the prisoner’s sentence;
  5. Returned to prison as a parole violator and it is subsequently determined that he or she owes restitution pursuant to KRS 439.563 and has an arrearage on that restitution. Any credit withheld pursuant to this subsection shall be reinstated when the arrearage is paid in full;
  6. Classified as a violent offender pursuant to KRS 439.3401 ; or
  7. A registered sex offender pursuant to KRS 17.500 to 17.580 .

History. Enact. Acts 1962, ch. 82, § 2; 2009, ch. 57, § 2, effective June 25, 2009; 2010, ch. 107, § 6, effective April 12, 2010.

NOTES TO DECISIONS

1.Constitutionality.

The constitutionality of this section was upheld. Stokes v. Robuck, 365 F. Supp. 887, 1973 U.S. Dist. LEXIS 11208 (E.D. Ky. 1973 ).

2.Retroactivity.

This section applies with respect to prisoners convicted prior to its enactment. Lynch v. Wingo, 425 S.W.2d 573, 1968 Ky. LEXIS 427 ( Ky. 1968 ).

Had the General Assembly disagreed with the Department of Corrections’ (DOC) interpretation of House Bill (HB) 406, 2008 Ky. Acts 127, it would have been illogical for the General Assembly to have permanently amended KRS 439.344 by inserting similar language to that used in HB 406; the General Assembly intended for the DOC to release or discharge as many prisoners or parolees as possible in order to save as many state dollars as possible. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

3.Parole Violations.

Where on a petition for a writ of habeas corpus the prisoner contended that he had completed his sentences by combination of time served in the reformatory and time on parole when “good time” was computed, the prisoner could not show that he had sufficient “good time” because of his violation of parole evidenced by his subsequent convictions. Eldridge v. Howard, 427 S.W.2d 579, 1968 Ky. LEXIS 683 ( Ky. 1968 ).

It was proper to use defendant’s prior conviction in convicting him as a first-degree persistent felon, although according to a schedule of “good time” awarded each prisoner, his sentence would have resulted in a minimum expiration date more than five (5) years prior to commission of the latest crime, if completely served, where he violated the provisions of his parole for the prior conviction, was returned to prison, was paroled for a second time and received his final discharge from parole less than five (5) years prior to the latest offense. Hobbs v. Commonwealth, 690 S.W.2d 771, 1985 Ky. App. LEXIS 596 (Ky. Ct. App. 1985).

Inmate’s habeas petition which alleged an unfair parole revocation hearing in violation of his constitutional rights was denied because KRS 439.344 applied to the inmate rather than a subsequently enacted law, KRS 197.047 did not require the department of corrections to award “work for time” credit, there was no constitutional right to parole, and there was no due process violation with regard to the parole hearing. Lang v. Ky. State Parole Bd., 2005 U.S. Dist. LEXIS 19406 (E.D. Ky. Sept. 6, 2005).

4.Subsequent Convictions.

A parole violator, who subsequently committed and was convicted of other felonies, is not entitled to credit for time spent out on parole toward the completion of his sentences. Stokes v. Howard, 450 S.W.2d 520, 1970 Ky. LEXIS 451 ( Ky. 1970 ).

5.Creditable Parole Time.

Time served by a prisoner in a federal prison while technically on parole from the state penitentiary should not be considered as creditable parole time. Kirkman v. Jones, 346 S.W.2d 776, 1961 Ky. LEXIS 339 ( Ky. 1961 ) (decided under prior law).

Where prisoner serving three (3) ten (10) year sentences for Kentucky armed robbery concurrently with Indiana sentence was paroled after three (3) years served in Indiana prison, Kentucky officials were without authority to arrest and incarcerate him, since Indiana law allows parole time to be counted as time in custody, despite contrary provisions of this section, unless the prisoner had served the maximum Indiana sentence. Brock v. Sowders, 610 S.W.2d 591, 1980 Ky. LEXIS 279 ( Ky. 1980 ).

Because Indiana has since revised its parole statutes and a person does not earn credit time while on parole or probation, defendant was not allowed additional credit against his Kentucky sentence for one (1) year spent on Indiana parole while simultaneously incarcerated in Kentucky; defendant was entitled to seven (7) years of credit time on his Kentucky sentence for his time incarcerated in Indiana, but no more. Hudson v. Commonwealth, 932 S.W.2d 371, 1996 Ky. LEXIS 104 ( Ky. 1996 ).

Inmate was not entitled to a sentence credit for the time the inmate spent on parole, and which was spent serving time in a Missouri prison, as parole time was not counted as part of a prisoner’s maximum sentence except in determining the parolee’s eligibility for a final discharge from parole, which was a situation that did not involve the inmate. Kassulke v. Briscoe-Wade, 105 S.W.3d 403, 2003 Ky. LEXIS 44 ( Ky. 2003 ), modified, 2003 Ky. LEXIS 134 (Ky. June 12, 2003).

Inmate was not entitled to credit against his Kentucky sentences for time served in Ohio pursuant to Ohio sentences, either before or after his parole in Kentucky was revoked. O'Conner v. Schneider, 117 S.W.3d 666, 2003 Ky. App. LEXIS 236 (Ky. Ct. App. 2003).

Pro se prisoner’s 42 USCS § 1983 action in which he alleged that he and other state prisoners were not awarded credit for service of their remaining unexpired state sentences for the time they spent on parole pursuant to KRS 439.344 was dismissed because he sought to shorten his term; the inmate had to do so via habeas corpus and could not proceed in an action brought under 42 USCS § 1983. Jones v. Fletcher, 2005 U.S. Dist. LEXIS 44698 (E.D. Ky. May 5, 2005).

Because 2003 Ky. Acts, ch. 156, pt. IX, item 36(a) was not intended to be retroactive, the law in effect at the time of defendant’s parole revocations was KRS 439.344 ; accordingly, defendant was not entitled to receive credit towards the remaining unexpired sentence for time spent on parole. Noland v. Dep't of Corr., 266 S.W.3d 249, 2008 Ky. App. LEXIS 277 (Ky. Ct. App. 2008).

At defendant’s trial for first-degree possession of a controlled substance and possession of a handgun by a convicted felon, his right to due process was not denied by his parole officer’s testimony during the penalty phase regarding the potential effect of parole and sentence credits on defendant’s sentence under KRS 439.344 . The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

Cited in:

Kassulke v. Briscoe-Wade, 105 S.W.3d 403, 2003 Ky. LEXIS 44 ( Ky. 2003 ).

Opinions of Attorney General.

A parole violator’s time in a county jail awaiting a parole violation hearing does not count on the service of his sentence in prison; technically, it would appear that until the parolee is actually back in the state prison, he is still out on parole as relates to the effect of parole time on his sentence. OAG 84-287 .

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

439.345. Compliance credits for eligible parolees — Definitions — Administrative regulations.

  1. An individual on parole shall receive parole compliance credits to be applied toward the individual’s sentence, if the paroled individual does all of the following:
    1. Fulfills the terms of his or her case plan;
    2. Has no new arrests; and
    3. Makes scheduled monthly payments for restitution, if any.
    1. After one (1) full calendar month of being supervised, a supervised individual eligible under this subsection on parole shall receive thirty (30) days of supervised compliance credit for every full calendar month he or she is substantially compliant with supervision. After a supervised individual has served at least one (1) year on supervision, the accrued supervised compliance credits shall be applied towards the individual’s sentence. (2) (a) After one (1) full calendar month of being supervised, a supervised individual eligible under this subsection on parole shall receive thirty (30) days of supervised compliance credit for every full calendar month he or she is substantially compliant with supervision. After a supervised individual has served at least one (1) year on supervision, the accrued supervised compliance credits shall be applied towards the individual’s sentence.
    2. As used in this subsection:
      1. “Eligible” means an offender being supervised for a Class D felony that:
        1. Does not qualify the offender as a violent offender as defined in KRS 439.3401 or a sexual offender as defined in KRS 17.550 ; and
        2. Did not result from a conviction of KRS 508.025 where the victim was a peace officer; and
      2. “Substantially compliant” means:
        1. Compliance with the terms of his or her case plan;
        2. Has no new arrests; and
        3. Makes scheduled monthly payments for restitution, if any.
    1. After one (1) full calendar month of being supervised, a supervised individual eligible under this subsection on parole shall receive thirty (30) days of supervised compliance credit for every full calendar month he or she is substantially compliant with supervision. After a supervised individual has served at least two (2) years on supervision, the accrued supervised compliance credits shall be applied towards the individual’s sentence. (3) (a) After one (1) full calendar month of being supervised, a supervised individual eligible under this subsection on parole shall receive thirty (30) days of supervised compliance credit for every full calendar month he or she is substantially compliant with supervision. After a supervised individual has served at least two (2) years on supervision, the accrued supervised compliance credits shall be applied towards the individual’s sentence.
    2. As used in this subsection:
      1. “Eligible” means an offender who:
        1. Is not a persistent felony offender; and
        2. Is being supervised for a Class C felony that:
          1. Does not qualify the offender as a violent offender as defined in KRS 439. 3401 or a sexual offender as defined in KRS 17. 550; and
          2. Did not result from a conviction of KRS 218A.1401 , 218A.1410 , 218A.1411 , 218A.1412 , 218A.1413 , 218A.1414 , 218A.1421 , 218A.1423 , 218A.1430 , 218A.1438 , 218A.439, or 218A.286 ; and
      2. “Substantially compliant” means:
        1. Compliance with the terms of his or her case plan;
        2. Has no new arrests; and
        3. Makes scheduled monthly payments for restitution, if any.
  2. The department shall promulgate administrative regulations for the awarding of parole compliance credits and supervised compliance credits pursuant to this section.

HISTORY: Enact. Acts 2011, ch. 2, § 55, effective June 8, 2011; 2017 ch. 158, § 13, effective June 29, 2017.

NOTES TO DECISIONS

1.Sentencing Evidence.

At defendant’s trial for first-degree possession of a controlled substance and possession of a handgun by a convicted felon, his right to due process was not denied by his parole officer’s testimony during the penalty phase regarding the potential effect of parole and sentence credits on defendant’s sentence under KRS 439.345 . The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

439.346. Prisoner paroled or under postincarceration supervision subject to orders of board.

During the period of his or her parole or postincarceration supervision, the prisoner shall be amenable to the orders of the board and the department.

History. Enact. Acts 1962, ch. 82, § 3; 1982, ch. 344, § 45, effective July 15, 1982; 1992, ch. 211, § 108, effective July 14, 1992; 2011, ch. 2, § 89, effective March 3, 2011.

NOTES TO DECISIONS

1.Control of Board.

A prisoner who has been paroled remains subject to the control of the parole board, and upon violation of his parole, may be rearrested and imprisoned on the original conviction. Brown v. Department of Welfare, Div. Pf Probation & Parole, 351 S.W.2d 183, 1961 Ky. LEXIS 153 ( Ky. 1961 ) (decided under prior law).

Cited in:

Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ); Wingo v. Lyons, 432 S.W.2d 821, 1968 Ky. LEXIS 360 ( Ky. 1968 ).

Opinions of Attorney General.

If a parolee commits a crime and is convicted, his parole shall be revoked even though an appeal is granted and an appeal bond set and the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of the sentence from which he was originally paroled. OAG 72-109 .

Under KRS 439.352 , a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. OAG 82-267 .

439.348. Paroled prisoner under supervision of department — Cessation.

Paroled prisoners shall be under the supervision of the department and subject to its direction for the duration of parole. Supervision of the parolee by the department shall cease at the time:

  1. Of recommitment of the prisoner to prison as a parole violator, including recommitment under a supervision continuation sanction, at which time the prisoner shall be considered an inmate; or
  2. A final discharge from parole is granted to the parolee by the board.

HISTORY: Enact. Acts 1962, ch. 82, § 4; 1974, ch. 74, Art. V, § 24(16); 1982, ch. 344, § 46, effective July 15, 1982; 1992, ch. 211, § 109, effective July 14, 1992; 2019 ch. 137, § 2, effective June 27, 2019.

NOTES TO DECISIONS

1.Jurisdiction.

Where the petitioner was granted parole by Kentucky and released to the custody of the parole authorities in Alaska, the Commonwealth of Kentucky retained jurisdiction over him while he was on parole. Jones v. Black, 468 S.W.2d 274, 1971 Ky. LEXIS 326 ( Ky. 1971 ).

2.Habeas Corpus Jurisdiction.

Inasmuch as this section places paroled prisoners under the supervision of the bureau of corrections (now Department of Corrections) “subject to its direction” for the duration of the parole period, and since the bureau (now Cabinet) has the authority to apply constraints on his “liberty to go where he will,” that is enough to support habeas corpus jurisdiction. Walters v. Smith, 599 S.W.2d 164, 1980 Ky. LEXIS 215 ( Ky. 1980 ).

Cited in:

Wingo v. Lyons, 432 S.W.2d 821, 1968 Ky. LEXIS 360 ( Ky. 1968 ).

Opinions of Attorney General.

If a parolee commits a crime and is convicted, his parole shall be revoked even though an appeal is granted and an appeal bond set and the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of the sentence from which he was originally paroled. OAG 72-109 .

Under KRS 439.352 , a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. OAG 82-267 .

439.350. Time served in prison and on parole not to exceed the period of the maximum sentence; exceptions; paroled prisoners to be amenable to orders of the board and division; supervision and direction of paroled prisoners; final discharge. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 11) was repealed by Acts 1962, ch. 82, § 9.

439.352. Recommitment of supervised individual on parole or post-release supervision — Effect.

Recommitment of a supervised individual on parole or post-release supervision to prison or jail on a new sentence received for commission of a crime while on parole or other post-release supervision shall automatically terminate his or her parole or other post-release supervision status on any sentence on which he or she has not received a final discharge, or a restoration of civil rights, prior to the date of recommitment. The prisoner shall, at the time of the recommitment on the new sentence, begin to accrue additional time credit toward conditional release or expiration of sentence on the sentence on which he or she had previously been on community supervision unless he or she has been finally discharged from community supervision on the sentence or has been restored to civil rights prior to the date of the recommitment.

History. Enact. Acts 1962, ch. 82, § 5; 2020 ch. 44, § 6, effective July 15, 2020.

NOTES TO DECISIONS

1.In General.

Parole does not stand revoked until board issues an order to that effect, approved by the governor. Commonwealth v. Polsgrove, 231 Ky. 750 , 22 S.W.2d 126, 1929 Ky. LEXIS 356 ( Ky. 1929 ).

Where a prisoner violates his parole by commission and conviction of a second crime, he does not serve the remainder of his first sentence while serving the second sentence, and does not actually begin to serve it until his parole has been revoked by the board. Commonwealth v. Polsgrove, 231 Ky. 750 , 22 S.W.2d 126, 1929 Ky. LEXIS 356 ( Ky. 1929 ).

A prisoner on parole is subject to the control of the board and may be returned to prison for violation of the terms of his parole following an indictment for another offense, even though he was subsequently tried and acquitted. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ) (decided under prior law).

2.Due Process of Law.

A prisoner on parole, being at all times during continuance thereof in the legal custody of the welfare department, was not denied due process of law in violation of the 14th amendment of the United States Constitution and Ky. Const., §§ 2 and 11 when he was again taken into custody by the department for violation of his parole after he had been rearrested, though acquitted, on another charge. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ) (decided under prior law).

3.Subsequent Convictions.

Where the defendant was on probation on a previous conviction with two (2) years remaining on his sentence and while on parole was convicted of another offense and was sentenced to three (3) year to be served consecutively with any old sentences, the sentence was valid. Wallace v. Wingo, 453 S.W.2d 557, 1970 Ky. LEXIS 315 ( Ky. 1970 ).

Where a defendant is convicted of a second crime while he is on parole for a prior conviction, RCr 11.04 authorizes the judge imposing the new sentence to direct that it be served consecutively to the old sentence. Myrick v. Commonwealth, 456 S.W.2d 689, 1970 Ky. LEXIS 229 ( Ky. 1970 ).

Where a parolee was returned to prison for a new conviction and not because he violated a technical condition of his parole, there is no need for a preliminary hearing because the subsequent criminal conviction conclusively establishes the parole violation. Boulder v. Parke, 791 S.W.2d 376, 1990 Ky. App. LEXIS 77 (Ky. Ct. App. 1990).

4.Automatic Revocation.

The automatic revocation of petitioner’s parole status without a hearing pursuant to this section upon petitioner’s incarceration for conviction of a crime committed while on parole did not violate the Due Process Clause of the Fourteenth Amendment. Sneed v. Donahue, 993 F.2d 1239, 1993 U.S. App. LEXIS 11934 (6th Cir. Ky. 1993 ).

5.Prison Time in Another State.

A Kentucky parolee who commits a crime and serves a prison sentence in another state is not entitled to have that prison time credited against his Kentucky sentence. Rosenberg v. Defew, 862 S.W.2d 334, 1993 Ky. App. LEXIS 101 (Ky. Ct. App. 1993).

Opinions of Attorney General.

If a parolee commits a crime and is convicted, his parole shall be revoked even though an appeal is granted and an appeal bond set and the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of the sentence from which he was originally paroled. OAG 72-109 .

Under this section, a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. OAG 82-267 .

Where the sole ground for the parole revocation was a recommitment offense that is subsequently reversed, reasonable grounds for the revocation cease to exist, and the prisoner should be reparoled to avoid potential due process problems. OAG 82-267 .

Research References and Practice Aids

Cross-References.

Crime committed during parole, effect, KRS 532.110 .

439.354. Final discharge of paroled prisoner — Conditions.

  1. Except as provided in subsection (2) of this section, when any paroled prisoner has performed the obligations of his or her parole during his or her period of active parole supervision the board may, at the termination of such period to be determined by the board, issue a final discharge from parole to the prisoner. Unless ordered earlier by the board, a final discharge shall be issued when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by minimum expiration of sentence had he or she not been paroled, provided before this date he or she had not absconded from parole supervision or that a warrant for parole violation had not been issued by the board.
  2. When any paroled prisoner classified as a violent offender pursuant to KRS 439.3401 , or registered as a sex offender pursuant to KRS 17.500 to 17.580 , has performed the obligations of his or her parole, the board shall issue a final discharge from parole to the prisoner when the prisoner has been out of prison on parole a sufficient period of time to have been eligible for discharge from prison by maximum expiration of sentence had he or she not been paroled, provided before this date he or she had not absconded from parole supervision or that a warrant for parole violation had not been issued by the board.

History. Enact. Acts 1962, ch. 82, § 6; 2009, ch. 57, § 3, effective June 25, 2009.

NOTES TO DECISIONS

1.Retroactivity.

Had the General Assembly disagreed with the Department of Corrections’ (DOC) interpretation of House Bill (HB) 406, 2008 Ky. Acts 127, it would have been illogical for the General Assembly to have permanently amended KRS 439.344 by inserting similar language to that used in HB 406; the General Assembly intended for the DOC to release or discharge as many prisoners or parolees as possible in order to save as many state dollars as possible. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

2.Violation of Parole.

Where on a petition for a writ of habeas corpus the prisoner contended that he had completed his sentences by combination of time served in the reformatory and time on parole when “good time” was computed, the prisoner could not show that he had sufficient “good time” because of his violations of parole evidenced by his subsequent convictions. Eldridge v. Howard, 427 S.W.2d 579, 1968 Ky. LEXIS 683 ( Ky. 1968 ).

It was proper to use defendant’s prior conviction in convicting him as a first-degree persistent felon, although according to a schedule of “good time” awarded each prisoner, his sentence would have resulted in a minimum expiration date more than five (5) years prior to commission of the latest crime, if completely served, where he violated the provisions of his parole for the prior conviction, was returned to prison, was paroled for a second time and received his final discharge from parole less than five (5) years prior to the latest offense. Hobbs v. Commonwealth, 690 S.W.2d 771, 1985 Ky. App. LEXIS 596 (Ky. Ct. App. 1985).

3.Discharge Before Term Served.

Authority under indeterminate sentence act to finally discharge prisoners before serving term was unconstitutional as such discharge is equivalent to a pardon which is vested in the governor only. Board of Prison Comm'rs v. De Moss, 157 Ky. 289 , 163 S.W. 183, 1914 Ky. LEXIS 277 ( Ky. 1914 ) (decided under prior law).

4.Testimony.

At defendant’s trial for first-degree possession of a controlled substance and possession of a handgun by a convicted felon, his right to due process was not denied by his parole officer’s testimony during the penalty phase regarding the potential effect of parole and sentence credits on defendant’s sentence under KRS 439.354 . The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

Cited in:

Dublin v. Osborne, 388 S.W.2d 588, 1965 Ky. LEXIS 438 ( Ky. 1965 ); Stokes v. Howard, 450 S.W.2d 520, 1970 Ky. LEXIS 451 ( Ky. 1970 ); Kassulke v. Briscoe-Wade, 105 S.W.3d 403, 2003 Ky. LEXIS 44 ( Ky. 2003 ); Lang v. Ky. State Parole Bd., 2005 U.S. Dist. LEXIS 19406 (E.D. Ky. Sept. 6, 2005).

Opinions of Attorney General.

When the parole board grants parole to any prisoner with less than one (1) year remaining on his sentence, KRS 439.342 authorizes the board to retain the prisoner on parole for a period of one (1) year notwithstanding the provisions of this section. OAG 68-485 .

439.356. Final discharge — Effect.

After final discharge has been ordered and a certificate issued by the board, or after the parolee’s civil rights have been restored by an act of the Governor, the parolee may not be held again for a violation of that parole.

History. Enact. Acts 1962, ch. 82, § 7.

NOTES TO DECISIONS

1.Restoration of Civil Rights.

The District Court did not err in counting the 1970 convictions against defendant for purposes of sentencing him under the Armed Career Criminal Act even though in 1970 the laws of Kentucky did not criminalize possession of a firearm by a felon and the Kentucky Constitution guaranteed citizens the right to bear arms. Kentucky does not restore civil rights to convicted felons by statute. Kentucky provides that a prisoner’s civil rights may be restored by “an act of the governor.” Even if defendant may have been able to possess a firearm for some period of time following his 1970 convictions, such would not act as a restoration of civil rights within the meaning of 18 USCS § 92(a)(20). United States v. Warren, 973 F.2d 1304, 1992 U.S. App. LEXIS 20541 (6th Cir. Ky. 1992 ).

439.358. Final discharge provisions — Application.

The provisions of granting final discharges from parole, and the release from being again confined on the same sentence in the penitentiary following the granting of such discharge or following the restoration of the parolee’s civil rights, as set out in KRS 439.342 to 439.358 , shall be followed in all cases of those persons confined or paroled before, on, or committed after June 14, 1962.

History. Enact. Acts 1962, ch. 82, § 8.

NOTES TO DECISIONS

1.Compilation of Time.

Right of parolee to count time of liberty on parole toward sentence, as permitted under KRS 439.350 (now repealed), was terminated by repeal of that statute, and parolee was prevented from counting such time as part of his maximum sentence by enactment of KRS 439.344 and this section. Lynch v. Wingo, 425 S.W.2d 573, 1968 Ky. LEXIS 427 ( Ky. 1968 ).

439.360. Conditionally released prisoners. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 12; Acts 1958, ch. 126, § 43) was repealed by Acts 1962, ch. 109, § 2.

439.370. Commonwealth’s attorney to cause to be transmitted to the institution a concise statement of facts adduced at trial or hearing.

It shall be the duty of the Commonwealth’s attorney after the imposition of prison sentence, unless the defendant is granted probation, to cause to be forthwith transmitted to the institution with the commitment papers, a concise statement of the facts adduced at the trial or at the hearing of a plea of guilty, together with such notes of testimony as the board may request.

History. Enact. Acts 1956, ch. 101, § 13, effective May 18, 1956.

439.380. Prison officials to furnish members of board with access to prisoner, facilities for communicating with prisoner, reports and other facts.

It shall be the duty of all prison officials to furnish members of the board, or its properly accredited representatives:

  1. Access at all reasonable times, to any prisoner over whom the board has jurisdiction under KRS 439.250 to 439.560 ;
  2. Facilities for communicating with and observing such prisoner;
  3. Such reports as the board shall require concerning the conduct and character of any prisoner in their custody; and
  4. Any other facts deemed pertinent by the board in determining whether such prisoner shall be paroled.

History. Enact. Acts 1956, ch. 101, § 14, effective May 18, 1956.

Research References and Practice Aids

Kentucky Bench & Bar.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

439.390. Board may issue subpoenas — Penalty for false testimony or failure to comply with subpoena — Circuit Court may compel the attendance of witnesses, production of documents and giving of testimony before board.

The board shall have the power to issue subpoenas requiring the attendance of such witnesses and the production of such records, books, papers, and documents as it may deem necessary for investigation of the case of any person before it. Subpoenas may be signed and oaths administered by any member of the board. Subpoenas so issued shall be served by any sheriff, constable, police, parole or probation officer, or other peace officer and a return made to the board in the same manner as similar process in the Circuit Court. Any person who testifies falsely or fails to appear when subpoenaed, or fails or refuses to produce documents, records, or other such material when subpoenaed, upon citation by the Circuit Courts where the board meets and after hearing by that court, shall be subject to the same order and penalties to which persons before that court are subject. Any Circuit Court, upon application of the board, may compel the attendance of witnesses, the production of documents, records or other such material, and the giving of testimony before the board.

History. Enact. Acts 1956, ch. 101, § 15, effective May 18, 1956.

439.400. Things to be supplied to prisoner placed on probation or conditional release — Advancement for temporary maintenance. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 16; 1974, ch. 74, Art. V, § 24(14)(16)) was repealed by Acts 1980, ch. 208, § 11, effective July 15, 1980.

439.410. Board’s order to be sufficient authority to officer in charge of state penal institution to release from custody paroled or conditionally released prisoner.

An order of the board shall be sufficient warrant and authority to the officer in charge of any state penal institution to release from custody any paroled prisoner or conditionally released prisoner.

History. Enact. Acts 1956, ch. 101, § 17, effective May 18, 1956.

439.420. Person out on parole not to be required to wear regulation dress of penitentiary.

No person shall be required to wear the regulation dress of the penitentiary or other thing indicating he is under conviction for a crime while out on parole.

History. Enact. Acts 1956, ch. 101, § 18, effective May 18, 1956; 1994, ch. 418, § 12, effective July 15, 1994.

439.430. Parole officer may arrest parolee or person subject to postincarceration supervision, when — Detention — Report to commissioner — Return of prisoner to prison — Prisoner for whose return a warrant has been issued to be deemed a fugitive from justice — Effect of violation of parole.

  1. Any parole officer having reason to believe that a parolee or a person on postincarceration supervision pursuant to KRS 532.043 or 532.400 has violated the terms of his or her release may arrest the parolee or offender on postincarceration supervision without a warrant or may deputize any other peace officer to do so by giving him or her a written statement setting forth that the parolee or offender on postincarceration supervision, in the judgment of the parole officer, has violated the conditions of his or her release. The written statement delivered with the parolee or offender on postincarceration supervision by the arresting officer to the official in charge of the station house, jail, workhouse, or other place of detention, shall be sufficient warrant for the detention of the parolee or offender on postincarceration supervision. The parole officer who arrests or causes the arrest of the prisoner shall notify the commissioner or his or her designee at once of the arrest and detention of the parolee or offender on postincarceration supervision, and shall submit in writing a report showing in what manner there has been a violation of the conditions of release. Thereupon, if the commissioner or his or her designee believes the parolee or offender on postincarceration supervision should be returned to prison, the commissioner or his or her designee at once shall submit his or her recommendations to the board, and, if the board approves, it shall issue a warrant upon which the releasee shall be returned to prison; otherwise the prisoner shall be released upon the order of the commissioner or his or her designee.
  2. A written statement, approved by the commissioner or his or her designee, by a parole officer, and filed with the board setting forth that the parolee or offender on postincarceration supervision in the judgment of the officer has violated the condition of his or her release, shall be sufficient cause for the board, in its discretion, to issue a warrant for the arrest of the parolee or offender on postincarceration supervision or for his or her return to prison.
  3. A prisoner for whose return a warrant has been issued by the board, shall be deemed a fugitive from justice or to have fled from justice. If it shall appear he or she has violated the provisions of his or her release, the time from the issuing of the warrant to the date of his or her arrest shall not be counted as any part of the time to be served in determining his or her final discharge eligibility date from parole if the board in its discretion so orders.
  4. The Parole Board may at its discretion issue a warrant for any parolee or offender on postincarceration supervision when in its judgment the condition of release has been violated.

History. Enact. Acts 1956, ch. 101, § 19; 1962, ch. 109, § 3; 1966, ch. 257, § 1; 1974, Art. V, § 24(16); 1980, ch. 208, § 4, effective July 15, 1980; 1992, ch. 211, § 110, effective July 14, 1992; 2011, ch. 2, § 90, effective March 3, 2011; 2011, ch. 2, § 102, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). This section was amended by 2011 Ky. Acts ch. 2, secs. 90 and 102, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Application.

Where accused was convicted and sentenced in 1954 and was paroled in April 1965 and reimprisoned in May 1967 for violating parole, his arrest as a parole violator without warrant was governed by this section enacted in 1956 and not by KRS 439.190 which was repealed simultaneously. Morris v. Wingo, 421 F.2d 651, 1970 U.S. App. LEXIS 10985 (6th Cir. Ky. 1970 ).

The application of this section to a person convicted prior to its enactment does not violate the constitutional prohibition against enactment of ex post facto laws. Morris v. Wingo, 428 S.W.2d 765, 1968 Ky. LEXIS 724 ( Ky. 1968 ).

Where parolee was convicted prior to enactment of this section but paroled after its enactment, this section and not the law as it existed at the time of conviction was applicable in case of revocation of parole. Morris v. Wingo, 428 S.W.2d 765, 1968 Ky. LEXIS 724 ( Ky. 1968 ).

Parole officer had the power to arrest defendant based on an alleged parole violation and was not required to deputize the police officer that accompanied the parole officer because the parole officer was present. Sublett v. Commonwealth, 203 S.W.3d 701, 2006 Ky. LEXIS 257 ( Ky. 2006 ).

2.Purpose.

The intent of subsection (3), classifying fugitive parole violators as fugitives from justice, is merely to exclude the period that such a person is a fugitive from credit towards time remaining to be served on his sentence, and such classification could not be used to satisfy the separate prior felony requirement of the federal dangerous special offender statute, 18 USCS § 3575 (e). Watkins v. United States, 564 F.2d 201, 1977 U.S. App. LEXIS 11096 (6th Cir. Ky. 1977 ).

3.Proper Procedure.

If the welfare department in rearresting a parolee abuses its authority the remedy of the parolee to secure his release is not by writ of habeas corpus but by a proceeding in the Circuit Court in the proper county to obtain a writ of mandamus requiring the department to proceed properly. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ) (decided under prior law).

Parole officer was entitled to qualified official immunity in a wrongful death action arising from an car accident caused by a parolee who was fleeing from police, because the parole officer properly exercised his discretionary duties under KRS 439.480 in supervising the parolee; the record showed that upon learning of the parolee’s failure to report, the parole officer promptly initiated a home visit and left a note directing the parolee to report to his office. The parole officer also submitted a supervision report to the parole board requesting a parole violation warrant under KRS 439.430 ; he was not required to arrest the parolee. Lawrence v. George, 2012 Ky. App. LEXIS 102 (Ky. Ct. App. June 29, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1011 (Ky. Ct. App. June 29, 2012), review denied, ordered not published, 2013 Ky. LEXIS 167 (Ky. Feb. 13, 2013).

4.Discretion of Board.

The board is not required to revoke a parole on commission of a second offense by paroled prisoner, but may do so in its discretion. Commonwealth v. Polsgrove, 231 Ky. 750 , 22 S.W.2d 126, 1929 Ky. LEXIS 356 ( Ky. 1929 ) (decided under prior law).

Parole is not a right, but a privilege to be granted or withheld within the discretion of the board of charities and corrections. Morris v. Wingo, 428 S.W.2d 765, 1968 Ky. LEXIS 724 ( Ky. 1968 ).

5.Writ of Mandamus.

Although parole officer failed to deputize by written statement the police officers making arrest of alleged parole violator, but had with him the parole violation warrant, parolee was not entitled to issuance of mandamus to compel parole board to release him, nor was that technical defect grounds for vacating original judgment of conviction. Evans v. Thomas, 372 S.W.2d 798, 1963 Ky. LEXIS 148 ( Ky. 1963 ), cert. denied, 376 U.S. 934, 84 S. Ct. 705, 11 L. Ed. 2d 653, 1964 U.S. LEXIS 1760 (U.S. 1964).

The parole board is a quasi-judicial body and mandamus will not lie to control the exercise of its sound discretion. Evans v. Thomas, 372 S.W.2d 798, 1963 Ky. LEXIS 148 ( Ky. 1963 ), cert. denied, 376 U.S. 934, 84 S. Ct. 705, 11 L. Ed. 2d 653, 1964 U.S. LEXIS 1760 (U.S. 1964).

6.Habeas Corpus.

A paroled convict is in the control of the board of prison commissioners and may be arrested on a warrant and placed again in prison for a violation of his parole, and when so placed again in prison cannot be released on a writ of habeas corpus, as his imprisonment is not without authority of law. Board of Prison Comm'rs v. Crumbaugh, 161 Ky. 540 , 170 S.W. 1187, 1914 Ky. LEXIS 99 ( Ky. 1914 ) (decided under prior law).

Prisoner who was transferred against his will to another prison beyond the jurisdiction of this state, apparently to serve the remainder of his term, and was there restrained after he had served time which would have made him eligible for parole under Kentucky law, was entitled to release upon his return to this state. Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ) (decided under prior law).

7.Revocation Hearing.

The parolee did not have a constitutional right to a hearing on the parole revocation process since revocation action arose prior to the United States Supreme Court decision guaranteeing the parolee minimum procedural requirements under the fourteenth amendment in proceedings to re-confine him because of an alleged violation of parole condition. Rogers v. Hurley, 486 S.W.2d 696, 1972 Ky. LEXIS 113 ( Ky. 1972 ).

8.Federal Custody of Fugitive.

If the parole board had chosen to hold an immediate hearing and had revoked parole of defendant who was incarcerated in federal penitentiary, then under this section defendant would have still been deemed a “fugitive from justice” until he could be taken into custody under the parole violation warrant and it was not possible to take him into custody under that warrant so long as he remained within the custody of the federal authorities. Anglian v. Sowders, 566 S.W.2d 789, 1978 Ky. App. LEXIS 530 (Ky. Ct. App. 1978).

9.Reimprisonment.

The only authority for warden of penitentiary to receive and reimprison paroled prisoner is an order of the board signed by its chairman or acting chairman, and approved by the governor. Commonwealth v. Polsgrove, 231 Ky. 750 , 22 S.W.2d 126, 1929 Ky. LEXIS 356 ( Ky. 1929 ) (decided under prior law).

State does not waive or forfeit its right to reconfine appellant for violation of parole during which time he was tried and sentenced on a federal offense, and upon release, was taken into custody by state authorities for the purpose of serving out his original sentence. Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ).

10.Right to Privacy.

Parole officer had no lawful Fourth Amendment basis to enter the parolee defendant’s residence to conduct a warrantless search without defendant’s consent; that defendant recently tested positive for drugs and defendant’s use of drugs was a parole violation and that the officers smelled marijuana when defendant opened defendant’s front door, these facts did not create reasonable suspicion to enter defendant’s residence without defendant’s consent or a search warrant. Defendant’s parole agreement to allow defendant’s parole officer to enter defendant’s residence, and refusal to consent to entry, was a parole violation which made defendant subject to immediate arrest for a parole violation (KRS 439.430(1)); but the officers did not arrest defendant until after the search, and so the search was not incidental to a lawful arrest. No search warrant exceptions overrode defendant’s expectation of privacy in defendant’s home. Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

Cited in:

Balsley v. Commonwealth, 428 S.W.2d 614, 1967 Ky. LEXIS 524 ( Ky. 1967 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ); Commonwealth v. Elliott, 714 S.W.2d 494, 1986 Ky. App. LEXIS 1190 (Ky. Ct. App. 1986).

Opinions of Attorney General.

KRS 439.300 (repealed) and this section relate solely to Kentucky probationers and parolees and do not authorize the arrest of persons who have been probated or paroled by authorities of another state and accepted for supervision here. OAG 63-742 . (But see OAG 73-405 .)

When out-of-state parolees are thought to have violated the terms of their parole or probation and the authorities of the sending state desire their arrest and return, they may be arrested and detained pending arrival of officers of the demanding state by a fugitive warrant issued under KRS 440.270 . OAG 63-742 .

Defendant held under a detention order cannot be given credit under either KRS 441.180 (now repealed) or KRS 441.190 (now repealed) if he is convicted of a misdemeanor and fined. OAG 72-59 .

If defendant was convicted of a misdemeanor in county court and fined while held under a detention order issued under this section, and the judge issued a capias requiring the jailer to keep the defendant in jail until he serves out the fine, then the defendant would be entitled to receive the appropriate monetary credit for each day he remains in jail under KRS 441.180 (now repealed) and KRS 441.190 (now repealed) after the capias is served. OAG 72-59 .

If a parolee commits a crime and is convicted, his parole shall be revoked even though an appeal is granted and an appeal bond set and the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of the sentence from which he was originally paroled. OAG 72-109 .

KRS 439.570 gives parole and probation officers the same power of arrest over persons accepted for supervision under the terms of the interstate compact as set forth in KRS 439.560 (repealed) as they previously had over Kentucky probationers and parolees under this section and KRS 439.300 (repealed). OAG 63-742 was superseded to this effect by the enactment of KRS 439.570 . OAG 73-405 .

Where a parole officer believes that a parolee has violated the terms of his release, the officer must, when arresting the parolee pursuant to this section, obtain an arrest or search warrant to make an arrest of the parolee in the parolee’s residence, absent exigent circumstances, since the theory that a prisoner on parole is merely experiencing a change in the form of custody, in his best interest, does not support an increased freedom to invade the parolee’s privacy; however, in obtaining the warrant, the lesser standard of reasonable cause should be applied. OAG 81-209 .

Under KRS 439.352 , a parolee is automatically recommitted to prison if he has received a new sentence for the commission of a crime while on parole. Even though an appeal is granted and an appeal bond set, the parolee can be legally held by the state parole authorities because he is still in their custody by virtue of his sentence from which he was originally paroled. OAG 82-267 .

There is no statute which prohibits a jailer from making “trustees” out of parole violators, who are lodged in county jails with detainers awaiting hearings or a warrant from the Parole Board. OAG 84-287 .

Research References and Practice Aids

Cross-References.

Arrest of defendant on probation or conditional discharge, KRS 533.050 .

Crime committed during parole, effect of, KRS 532.110 .

Peace officers, arrest by, when, KRS 431.005 .

Kentucky Bench & Bar.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

Northern Kentucky Law Review.

Article: Survey: How Kentucky Courts Have Applied the Protective Sweep Doctrine, 35 N. Ky. L. Rev. 179 (2008).

439.440. Prisoner returned to state custody for violation of release to be heard by board — Time.

Any prisoner returned to state custody for violation of his or her release shall be heard by the board within sixty (60) days on the propriety of his or her rerelease.

History. Enact. Acts 1956, ch. 101, § 20, effective May 18, 1956; 2020 ch. 44, § 7, effective July 15, 2020.

NOTES TO DECISIONS

1.Hearing.

Prisoner received hearing before parole board within the meaning of this statute, even though the board elected to accept the parole officer’s report and recommendation that he be returned to prison, as this was clearly within the sound discretion of the board. Evans v. Thomas, 372 S.W.2d 798, 1963 Ky. LEXIS 148 ( Ky. 1963 ), cert. denied, 376 U.S. 934, 84 S. Ct. 705, 11 L. Ed. 2d 653, 1964 U.S. LEXIS 1760 (U.S. 1964).

Appellants were entitled to no relief other than a writ of mandamus compelling the Parole Board to conduct the hearing; as the record showed that each appellant had the benefit of such a hearing, they were entitled to no further relief. Johns v. Ky. Parole Bd., 2022 Ky. App. LEXIS 20 (Ky. Ct. App. Mar. 18, 2022).

2.—Abuse of Authority.

Where a prisoner’s parole is revoked and he is not given a hearing until 40 days after his return to prison instead of the 30 days directed by this section, mandamus, not habeas corpus, is the proper remedy for an abuse of authority by the parole board in connection with a rearrest and revocation of parole. Allen v. Wingo, 472 S.W.2d 688, 1971 Ky. LEXIS 210 ( Ky. 1971 ).

Opinions of Attorney General.

Whenever the defendant is arrested, either with or without a warrant, he is entitled to a hearing. OAG 60-828 .

439.450. Board to make investigation and report to Governor.

On request of the Governor the board shall investigate and report to him with respect to any case of pardon, commutation of sentence, reprieve or remission of fine or forfeiture.

History. Enact. Acts 1956, ch. 101, § 21, effective May 18, 1956.

Research References and Practice Aids

Cross-References.

Governor, commutation of sentences, granting of reprieves and pardons, Const., § 77.

439.460. Advisory council to be appointed by Governor. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 22) was repealed by Acts 1962, ch. 106, Art. X, § 11.

439.470. Powers and duties of commissioner.

  1. The commissioner shall promulgate administrative regulations for the conduct of persons placed on probation or parole, except that the commissioner shall not promulgate any administrative regulation which conflicts with the conditions of probation imposed by the court or conditions of release imposed by the board.
  2. The commissioner may utilize an approved monitoring device as defined in KRS 532.200(5) in the supervision of persons placed on probation or parole and to impose a reasonable fee on the probationer or parolee, as a condition of probation or parole, for equipment usage.
  3. The commissioner or his or her designee shall:
    1. Be responsible for any reports of investigation and supervision as may be requested by the board or the courts;
    2. Divide the Commonwealth into districts and assign probation and parole officers to serve in the various districts and courts;
    3. Direct the work of the officers and other employees assigned to him or her;
    4. Formulate methods of investigation, supervision, record keeping, and reports;
    5. Conduct training courses for the staff;
    6. Negotiate with public or private groups or institutions for further training of employees and authorize the expenditure of funds for that purpose when needed; and
    7. Develop policies on probation and parole work in the light of other welfare administration policies.

History. Enact. Acts 1956, ch. 101, § 23, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(16); 1980, ch. 208, § 5, effective July 15, 1980; 1982, ch. 344, § 47, effective July 15, 1982; 1992, ch. 211, § 111, effective July 14, 1992; 1994, ch. 227, § 12, effective July 15, 1994; 1998, ch. 406, § 5, effective July 15, 1998; 2007, ch. 85, § 320, effective June 26, 2007.

Legislative Research Commission Notes.

(6/26/2007). A manifest clerical or typographical error has been corrected by the Reviser of Statutes in codifying 2007 Ky. Acts ch. 85, sec. 320 (this section).

Opinions of Attorney General.

If called upon by a county judge for a pre-parole report it is the parole officer’s duty to make it and if the individual is paroled, his supervision becomes a responsibility of the division of probation and parole (now Department of Corrections). OAG 66-421 .

439.480. Duties of probation and parole officers.

Probation and parole officers shall:

  1. Investigate all cases referred to them for investigation by the commissioner or by any court in which they are authorized to serve;
  2. Furnish to each person released under their supervision a written statement of the conditions of probation or parole and instruct him regarding the conditions;
  3. Keep informed concerning the conduct and conditions of each person under their supervision and use all suitable methods to aid and encourage them to bring about improvement in their conduct and condition;
  4. Keep detailed records of their work;
  5. Collect and disburse all moneys in accordance with the orders of the commissioner, board, or court;
  6. Keep accurate and complete accounts of all moneys received and disbursed in accordance with orders of the commissioner, board, or court, and give receipts therefor;
  7. Make the reports in writing the court or commissioner may require;
  8. Coordinate their work with that of other social agencies and file identifying information regarding their cases with any social service index or exchange operation in the area to which they are assigned.

History. Enact. Acts 1956, ch. 101, § 24, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(16); 1980, ch. 208, § 6, effective July 15, 1980; 1982, ch. 344, § 48, effective July 15, 1982; 1992, ch. 211, § 112, effective July 14, 1992.

NOTES TO DECISIONS

1.Official Immunity.

Parole officer was entitled to qualified official immunity in a wrongful death action arising from an car accident caused by a parolee who was fleeing from police, because the parole officer properly exercised his discretionary duties under KRS 439.480 in supervising the parolee. The record showed that upon learning of the parolee’s failure to report, the parole officer promptly initiated a home visit and left a note directing the parolee to report to his office; he also requested a parole violation warrant under KRS 439.430 , but he was not required to arrest the parolee. Lawrence v. George, 2012 Ky. App. LEXIS 102 (Ky. Ct. App. June 29, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1011 (Ky. Ct. App. June 29, 2012), review denied, ordered not published, 2013 Ky. LEXIS 167 (Ky. Feb. 13, 2013).

Opinions of Attorney General.

If called upon by a county judge for a pre-parole report it is the parole officer’s duty to make it and if the individual is paroled, his supervision becomes a responsibility of the division of probation and parole (now Department of Corrections). OAG 66-421 .

Research References and Practice Aids

Cross-References.

Probation and conditional discharge under Penal Code, KRS 532.040 , 533.010 to 533.050 .

439.483. Training of probation and parole officers regarding sexual offender registration laws — Necessary documents.

  1. Each probation and parole officer shall be trained in the requirements of the sexual offender registration laws and shall be able to:
    1. Register or reregister a sexual offender; and
    2. Answer questions about the sexual offender registration law and its requirements.
  2. The Justice and Public Safety Cabinet shall provide each probation and parole office with sufficient copies of the following documents to handle the expected numbers of registrants:
    1. The sexual offender registration statutes and any administrative regulations which are promulgated relating to sexual offender registration;
    2. A brochure explaining in lay person’s terms the requirements of the sex offender registration laws and administrative regulations;
    3. Registration forms;
    4. Fingerprint cards; and
    5. Other documents and supplies necessary to register a sexual offender.

History. Enact. Acts 2006, ch. 182, § 26, effective July 12, 2006; 2007, ch. 85, § 321, effective June 26, 2007.

439.485. Probation and parole officer’s position considered hazardous duty for retirement purposes.

The position of probation and parole officer shall be considered as a hazardous duty position within the meaning of KRS 61.592 and the department shall make the employer contributions required for participation in the Hazardous Duty Retirement Program.

History. Enact. Acts 1982, ch. 211, § 2, effective July 15, 1982.

439.490. Competitive examinations for employes. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 25) was repealed by Acts 1960, ch. 63, § 26.

439.500. Prohibited activities of probation and parole officers.

  1. No probation or parole officer of the department shall:
    1. Use his office to influence elections, or to influence the political action of any person;
    2. Serve as a member of the campaign committee of any political party;
    3. Interfere with or participate in the preparation for any election, or the conduct thereof at the polling place, or with the election officers while they are performing their duties;
    4. Be in any manner concerned in demanding, soliciting, or receiving any assessments, subscriptions, or contributions, whether voluntary or involuntary, for any political party or candidate.
  2. It shall be unlawful for any person to be in any way concerned with demanding or soliciting assessments, subscriptions, or contributions for any political party or candidate from any member or employee of the Department of Corrections.

History. Enact. Acts 1956, ch. 101, § 26, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(16); 1980, ch. 208, § 7, effective July 15, 1980; 1982, ch. 344, § 49, effective July 15, 1982; 1992, ch. 211, § 98, effective July 14, 1992.

439.510. Information obtained by probation or parole officer to be privileged — Exception.

All information obtained in the discharge of official duty by any probation or parole officer shall be privileged and shall not be received as evidence in any court. Such information shall not be disclosed directly or indirectly to any person other than the court, board, cabinet, or others entitled under KRS 439.250 to 439.560 to receive such information, unless otherwise ordered by such court, board or cabinet. Information shall be made available to sex offender treatment programs operated or approved by the Department of Corrections or the Department for Behavioral Health, Developmental and Intellectual Disabilities who request the information in the course of conducting an evaluation or treatment pursuant to KRS 439.265(6), 532.045(3), or 532.050(4).

History. Enact. Acts 1956, ch. 101, § 27, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(14); 1980, ch. 208, § 8, effective July 15, 1980; 1982, ch. 344, § 50, effective July 15, 1982; 1996, ch. 300, § 1, effective July 15, 1996; 2000, ch. 401, § 10, effective July 14, 2000; 2012, ch. 146, § 118, effective July 12, 2012; 2012, ch. 158, § 76, effective July 12, 2012.

Legislative Research Commission Notes.

(7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Purpose.

The intent of the legislature in this section was to create a “privilege” statute consistent with the general principles of privileged communication. Tabor v. Commonwealth, 625 S.W.2d 571, 1981 Ky. LEXIS 301 ( Ky. 1981 ).

2.Persistent Felony Offenders.

The status information required to prove the charges in KRS 532.080 concerning the sentencing of persistent felony offenders is not privileged and may be testified to by any witness, including probation and parole officers; the 1976 amendment to KRS 532.080 , which made the dates of imprisonment and discharge from probation, parole or imprisonment, as well as probation and parole status, essential elements of proof for persistent felony offender status, cannot be presumed to be nullified by the prohibition against disclosure of the same information in this section. Tabor v. Commonwealth, 625 S.W.2d 571, 1981 Ky. LEXIS 301 ( Ky. 1981 ).

3.Nonprivileged Information.

Testimony given from records by a parole officer concerning the defendant’s birth date and release date on a prior conviction did not violate this section, particularly since the testimony regarded facts which were not obtained from the parolee in the form of privileged communications. Hayes v. Commonwealth, 625 S.W.2d 575, 1981 Ky. LEXIS 303 ( Ky. 1981 ).

4.Privilege.

Where defendant sought information possessed by the secretary of Corrections Cabinet (now Department of Corrections) to assist his psychiatrists in preparing an insanity defense, the motion was properly denied on the basis of this section as such information is to be used solely for probation and parole purposes. Henderson v. Commonwealth, 507 S.W.2d 454, 1974 Ky. LEXIS 706 ( Ky. 1974 ).

5.Presentence Investigation Report.

A criminal defendant is not entitled to a copy of his or her presentence investigation report both at the presentence and post-conviction stages. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

To conform with the “fair opportunity” afforded a defendant by subsection (4) (now (6)) of KRS 532.050 , a defendant is entitled to being advised by the prison official who has custody of the presentence investigation report of the factual contents and conclusions therein and to a reasonable time to controvert factual information contained therein, but in order to protect the sources of confidential information, matters of opinion and comments of a personal and nonfactual nature shall not be revealed, and a defendant is not entitled to a copy of the report. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

A defendant who was indicted on two counts of first-degree robbery and for being a persistent felony offender, but as to whom one robbery count and the persistent felon count were dismissed as part of a plea bargain, was not entitled to have the dismissed charges segregated from the presentence investigation report in the hands of the Parole Board. Aaron v. Commonwealth, 810 S.W.2d 60, 1991 Ky. App. LEXIS 71 (Ky. Ct. App. 1991).

6.Sexual Offender Treatment Program.

Defendant’s privilege against self-incrimination was not violated by a sexual offender treatment program’s requirement that he admit his guilt where the record showed that he was aware of this requirement at the time of sentencing or shortly thereafter and neither appealed the denial of a motion to modify this requirement nor requested an alternative punishment. Razor v. Commonwealth, 960 S.W.2d 472, 1997 Ky. App. LEXIS 143 (Ky. Ct. App. 1997).

Cited in:

Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ); Wood v. Commonwealth, 469 S.W.2d 765, 1971 Ky. LEXIS 311 ( Ky. 1971 ).

Opinions of Attorney General.

Inspection of the presentence investigation report (PSI) remains closed except to the court, Parole Board, or Corrections Cabinet (now Department of Corrections) pursuant to KRS 61.878(1)(j) and this section although these agencies may order otherwise. Interpretation of KRS 532.050(4) indicates that there is a question as to whether the PSI itself should be released for inspection even to the defendant or his counsel. Statutory language only requires the court to advise of factual contents and conclusions; it does not require inspection. OAG 84-285 .

The Corrections Cabinet (now Department of Corrections), Department of Community Services and Facilities, properly denied, pursuant to subdivision (1)(j) of KRS 61.878 and this section, the request to inspect documents prepared and submitted by a parole officer. OAG 88-14 .

The Kentucky Parole Board acted consistent with Open Records provisions in denying, as privileged pursuant to statute, a parole officer’s “Special Report.” OAG 90-32 .

A request for access to a special report to the parole board by a parole officer was properly denied as the report was prepared by a probation and parole officer in the discharge of his official duties and, therefore, the record was exempt from disclosure under this section. OAG 99-ORD-55.

A correctional facility did not violate the Open Records Act in denying an inmate’s request for his presentence investigation report since such report was confidential under this section. OAG 99-ORD-216.

An agency which provided substance abuse treatment services at a halfway house properly denied a request for a letter and other records prepared by the probation and parole officer pertaining to the requester’s husband pursuant to this section and KRS 61.878(1)( l ) since these statutes operated in tandem to exclude from inspection all information obtained in the discharge of official duty by any probation or parole officer. OAG 00-ORD-45.

KRS 61.878(1)(k) and 61.878(1)( l ), when read in tandem with 28 USCS § 534 and this section, respectively, prohibited the disclosure of the requester’s rap sheet, the record which contains the requester’s entire criminal record, and a presentence investigation report, which contained the rap sheet and which was prepared by the probation and parole officer as part of his official duties. OAG 00-ORD-85.

If the defendant did not waive his PSI, and was advised of its contents at sentencing pursuant to KRS 532.050(6), he is foreclosed from being advised of its contents under a open records request because KRS 439.510 makes the report confidential. While the agencies are not required to furnish him with a copy of the report in either case, if he waived his PSI at sentencing, he is entitled to be advised by the prison official who has custody of it of the factual contents and conclusions therein. OAG 01-ORD-13.

Since the two-page Memorandum sought by the requester was prepared by a probation and parole officer in the discharge of his official duties, the record, pursuant KRS 439.510 , would be exempt from disclosure and could properly be denied under KRS 61.878(1)( l ). Accordingly, the adjustment center’s denial of the request was correct and in accord with provisions of the Open Records Act. OAG 01-ORD-52.

The parole officer’s “contemporaneous handwritten notes” and any other records the agency may have “relating to this matter” fall squarely within the parameters of the privilege established at KRS 439.510 , incorporated into the Open Records Act by operation of KRS 61.878(1)( l ). This privilege does not terminate upon revocation of an individual’s parole, and cannot be waived by the parolee. OAG 01-ORD-97.

Since the case notes of the parolee’s visits with his parole officer were prepared as a result of the officer’s official duties, these records, pursuant to KRS 439.510 , would be exempt from disclosure and may be properly denied under an Open Records Request pursuant to KRS 61.878(1)( l ). OAG 02-ORD-51.

The Division of Probation and Parole did not violate the Open Records Act in denying an inmate’s request for copies of certain casebook narratives on the basis of KRS 439.510 and KRS 61.878(1)( l ). OAG 05-ORD-265.

Research References and Practice Aids

Kentucky Bench & Bar.

Davis, Recent Developments in Persistent Felony Offender Cases, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 10.

Northern Kentucky Law Review.

Elliot, Kentucky’s Environmental Self-Audit Privilege: State Protection Or Increased Federal Scrutiny?, 23 N. Ky. L. Rev. 1 (1995).

439.520. Fiscal court to supply suitable office space for probation, parole and conditional release officer. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 28) was repealed by Acts 1979 (Ex. Sess.), Ch. 5, § 1, effective May 12, 1979.

439.530. Application of KRS 439.250 to 439.560. [Repealed.]

Compiler’s Notes.

This section (Acts 1956, ch. 101, § 29) was repealed by Acts 1976 (Ex. Sess.), ch. 14, § 491, effective January 2, 1978.

439.540. Powers of department.

The department, with the written approval of the secretary and the Governor, may:

  1. Enter into an agreement with the governing body of any county or city of this state for their payment of part of the costs of the performance of services within the county or city by the department relating to any parole or probation;
  2. Accept from the United States of America or any of its agencies the advisory services, funds, equipment, and supplies available to this state for any of the purposes contemplated by KRS 439.250 to 439.560 ;
  3. Enter into contracts and agreements with the United States or any of its agencies, or with any independent or private agency as necessary, proper, and convenient, not contrary to the laws of this state.

History. Enact. Acts 1956, ch. 101, § 30, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(16); 1980, ch. 208, § 9, effective July 15, 1980; 1982, ch. 344, § 51, effective July 15, 1982; 1992, ch. 211, § 99, effective July 14, 1992.

439.550. Probation by District Court — Supervision by Department of Corrections, or by adult misdemeanant probation and work release agency of urban-county government.

  1. If any District Court places a person on probation following a conviction of crime, either upon verdict or plea, the court may request that the defendant be under the supervision of the Department of Corrections.
  2. In counties containing an urban-county form of government, the urban-county council shall provide for supervision of a person placed on probation or work release by the District Court of the county following a conviction of crime, either upon a verdict or plea, under the supervision of an adult misdemeanant probation and work release agency of the urban-county government. The employees of the agency shall be classified civil service employees of a correctional services division created under KRS 67A.028 and shall be subject to the direction of the judges of the District Court in the performance of their duties. There shall be the number of employees of said agency, including clerical personnel, as necessary for the operation of the agency, and they shall receive reasonable salaries to be fixed by the urban-county council which salaries shall be paid out of the urban-county treasury.

HISTORY: Enact. Acts 1956, ch. 101, § 32, effective May 18, 1956; 1970, ch. 256, § 1; 1972, ch. 290, § 1; 1974, ch. 74, Art. V, § 24(14); 1974, ch. 406, § 330; 1976 (Ex. Sess.), ch. 14, § 449, effective January 2, 1978; 1978, ch. 76, § 1, effective June 17, 1978; 1982, ch. 344, § 52, effective July 15, 1982; 1992, ch. 211, § 100, effective July 14, 1992; 2003, ch. 59, § 1, effective June 24, 2003; 2017 ch. 167, § 20, effective June 29, 2017.

NOTES TO DECISIONS

1.Mandatory Compliance.

The power of a court to place a defendant on probation under this section depends on compliance with all its conditions, and it is incumbent upon one who invokes its protection to show that those conditions have been met. Bray v. Weaver, 453 S.W.2d 7, 1970 Ky. LEXIS 291 ( Ky. 1970 ) (decision prior to 1972 amendment).

Where the record did not show compliance with this section and it affirmatively disclosed the absence of any provision for the terms, conditions and duration of the probation, the part of the judgment that purported to “suspend” the jail sentence was unauthorized surplusage. Bray v. Weaver, 453 S.W.2d 7, 1970 Ky. LEXIS 291 ( Ky. 1970 ) (decision prior to 1972 amendment).

2.Supervision.

When the court places a defendant on probation under this section provision must be made for supervision. Bray v. Weaver, 453 S.W.2d 7, 1970 Ky. LEXIS 291 ( Ky. 1970 ).

3.Form of Judgment.

The judgment must specify the terms, conditions and duration of the probation. Bray v. Weaver, 453 S.W.2d 7, 1970 Ky. LEXIS 291 ( Ky. 1970 ) (decision prior to 1972 amendment).

Cited in:

Commonwealth v. Ballinger, 412 S.W.2d 576, 1967 Ky. LEXIS 431 ( Ky. 1967 ).

Opinions of Attorney General.

If a county has available the facilities required by this section, the county judge may properly parole misdemeanants subject to this supervision. OAG 64-412 .

An inferior court shall place all persons probated under supervision. OAG 64-413 .

Where an inferior court continually placed persons on parole without supervision, the Circuit Court could be asked to invoke its supervisory power and require such supervision by appropriate order. OAG 64-413 .

Where a defendant is found guilty in a police court in a fifth class city upon a verdict or a plea of guilty, he must pursuant to KRS 453.020 pay the statutory court costs incurred, unless he is proceeding in a forma pauperis situation pursuant to KRS 453.190 , regardless of whether he is fined or jailed or both or whether he is probated or placed under a peace bond since court costs are not part of the penalty imposed and a police court judge may not pursuant to this section waive them. OAG 74-567 .

Research References and Practice Aids

Cross-References.

Probation under Penal Code, KRS 533.010 to 533.050 .

439.551. Graduated sanctions for probation violations — Administrative regulations.

  1. The department shall promulgate administrative regulations to develop a system of graduated sanctions for responding to technical violations of probation. The department shall consult with the Supreme Court when promulgating these administrative regulations.
  2. The administrative regulations shall create a system of graduated sanctions with the following objectives:
    1. Responding quickly and consistently to violations of probation, based on the nature of the violation and the risk level of the supervised individual;
    2. Reducing the time and resources expended by the department and the courts to respond to violations; and
    3. Reducing the commission of new crimes and revocation rates.

History. Enact. Acts 2011, ch. 2, § 56, effective June 8, 2011.

NOTES TO DECISIONS

1.Application.

In revoking defendant’s probation, the trial court appropriately considered the Kentucky General Assembly’s wishes espoused in KRS 439.3106 , which became effective the same day as KRS 439.551 ; the court stated that, due to defendant’s failure to comply with the conditions of probation during the first few hours of probation, and due to the violent nature of the crimes committed, revocation of probation was the appropriate sanction for the probation violation. Jarrell v. Commonwealth, 384 S.W.3d 195, 2012 Ky. App. LEXIS 233 (Ky. Ct. App. 2012).

439.552. Early termination of probation — Administrative regulations.

  1. The department shall promulgate administrative regulations in consultation with the Supreme Court to establish procedures to:
    1. Recommend to the court the early termination of probation for a supervised individual who has:
      1. Fulfilled the terms of his or her case plan;
      2. No new arrests;
      3. Demonstrated a reduction in criminal risk factors upon reassessment; and
      4. Fulfilled all restitution and substantially fulfilled all other financial obligations to the court; and
    2. Review the compliance of the supervised individual on probation with the requirements in paragraph (a) of this subsection. This review for compliance shall occur at the same time as the regular reassessment pursuant to KRS 439.3101 and 439.3104 .
  2. The department shall petition the court with a request for early termination if the supervised individual on probation has:
    1. Complied with the requirements in subsection (1)(a) of this section;
    2. Completed at least eighteen (18) months of his or her term of supervision; and
    3. Not violated the terms of his or her supervision in the last twelve (12) months.
    4. Governing any general or specific delegation of any authority or function of the interstate commission;
  3. The department may establish by administrative regulation conditions for overriding the recommendation of early termination of probation.

History. Enact. Acts 2011, ch. 2, § 57, effective June 8, 2011.

439.553. Judicial determination of conditions of community supervision.

For supervised individuals on probation, the court having jurisdiction of the case shall determine the conditions of community supervision and may impose as a condition of community supervision that the department supervising the individual shall, in accordance with KRS 439.3108 , impose graduated sanctions adopted by the department for violations of the conditions of community supervision.

History. Enact. Acts 2011, ch. 2, § 61, effective June 8, 2011.

NOTES TO DECISIONS

Cited in:

Commonwealth v. Andrews, 2014 Ky. LEXIS 607 (Dec. 18, 2014).

439.555. Conditional release of certain prisoners.

Any prisoner having served the term for which he has been sentenced for a crime he committed after June 16, 1972, less good time deduction, if any has been accumulated, shall be released by minimum expiration of sentence.

History. Enact. Acts 1972, ch. 292, § 1; 1974, ch. 74, Art. V, § 24(14); 1980, ch. 208, § 10, effective July 15, 1980; 1992, ch. 445, § 11, effective July 14, 1992.

439.560. Compact with other states for out-of-state parolee supervision. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1956, ch. 101, § 31) was repealed by Acts 2000, ch. 473, sec. 3, effective June 19, 2002.

Interstate Adult Offender Supervision

439.561. Interstate Compact for Adult Offender Supervision.

  1. The Governor of this Commonwealth is authorized and directed to execute a compact on behalf of the Commonwealth with any of the United States legally joining therein in the form substantially as follows:

History. Enact. Acts 2000, ch. 473, § 1, effective June 19, 2002.

ARTICLE I PURPOSE

The compacting states to this Interstate Compact recognize that each state is responsible for the supervision of adult offenders in the community who are authorized pursuant to the bylaws and rules of this compact to travel across state lines both to and from each compacting state in such a manner as to track the location of offenders, transfer supervision authority in an orderly and efficient manner, and when necessary return offenders to the originating jurisdictions.

The compacting states also recognize that Congress, by enacting the Crime Control Act, 4 U.S.C. Section 112 (1965), has authorized and encouraged compacts for cooperative efforts and mutual assistance in the prevention of crime.

It is the purpose of this compact and the interstate commission created hereunder, through means of joint and cooperative action among the compacting states: to provide the framework for the promotion of public safety and protect the rights of victims through the control and regulation of the interstate movement of offenders in the community; to provide for the effective tracking, supervision, and rehabilitation of these offenders by the sending and receiving states; and to equitably distribute the costs, benefits, and obligations of the compact among the compacting states.

In addition, this compact will: create a interstate commission which will establish uniform procedures to manage the movement between states of adults placed under community supervision and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies which will promulgate rules to achieve the purpose of this compact; ensure an opportunity for input and timely notice to victims and to jurisdictions where defined offenders are authorized to travel or to relocate across state lines; establish a system of uniform data collection, access to information on active cases by authorized criminal justice officials, and regular reporting of compact activities to heads of state councils, state executive, judicial, and legislative branches and criminal justice administrators; monitor compliance with rules governing interstate movement of offenders and initiate interventions to address and correct noncompliance; and coordinate training and education regarding regulations of interstate movement of offenders for officials involved in such activity.

The compacting states recognize that there is no “right” of any offender to live in another state and that duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any offender under supervision subject to the provisions of this compact and bylaws and rules promulgated hereunder.

It is the policy of the compacting states that the activities conducted by the interstate commission created herein are the formation of public policies and are therefore public business.

ARTICLE II DEFINITIONS

As used in this compact, unless the context clearly requires a different construction:

  1. “Adult” means both individuals legally classified as adults and juveniles treated as adults by court order, statute, or operation of law.
  2. “Bylaws” means those bylaws established by the interstate commission for its governance, or for directing or controlling the interstate commission’s actions or conduct.
  3. “Compact administrator” means the individual in each compacting state appointed pursuant to the terms of this compact responsible for the administration and management of the state’s supervision and transfer of offenders subject to the terms of this compact, the rules adopted by the interstate commission, and policies adopted by the state council under this compact.
  4. “Compacting state” means any state which has enacted the enabling legislation for this compact.
  5. “Commissioner” means the voting representative of each compacting state appointed pursuant to Article III of this compact.
  6. “Interstate commission” means the Interstate Commission for Adult Offender Supervision established by this compact.
  7. “Member” means the commissioner of a compacting state or designee, who shall be a person officially connected with the commissioner.
  8. “Noncompacting state” means any state which has not enacted the enabling legislation for this compact.
  9. “Offender” means an adult placed under, or subject to, supervision as the result of the commission of a criminal offense and released to the community under the jurisdiction of courts, paroling authorities, corrections, or other criminal justice agencies.
  10. “Person” means any individual, corporation, business enterprise, or other legal entity, either public or private.
  11. “Rules” means acts of the interstate commission, duly promulgated pursuant to Article VII of this compact, substantially affecting interested parties in addition to the interstate commission, which shall have the force and effect of law in the compacting states.
  12. “State” means a state of the United States, the District of Columbia, and any other territorial possessions of the United States.
  13. “State council” means the resident members of the State Council for Interstate Adult Offender Supervision created by each state under Article III of this compact.

ARTICLE III THE COMPACT COMMISSION

  1. The compacting states hereby create the “Interstate Commission for Adult Offender Supervision.” The interstate commission shall be a body corporate and joint agency of the compacting states. The interstate commission shall have all the responsibilities, powers, and duties set forth herein, including the power to sue and be sued, and such additional powers as may be conferred upon it by subsequent action of the respective legislatures of the compacting states in accordance with the terms of this compact.
  2. The interstate commission shall consist of commissioners selected and appointed by resident members of a state council for interstate adult offender supervision for each state. While each member state may determine the membership of its own state council, its membership must include at least one representative from the legislative, judicial, and executive branches of government, victims groups, and compact administrators. Each state council shall appoint as its commissioner the compact administrator from that state to serve on the interstate commission in such capacity under or pursuant to applicable law of the member state. Each compacting state retains the right to determine the qualifications of the compact administrator who shall be appointed by the state council or by the Governor in consultation with the legislature and the judiciary.

    In addition to appointment of its commissioner to the national interstate commission, each state council shall exercise oversight and advocacy concerning its participation in interstate commission activities and other duties as may be determined by each member state, including, but not limited to, development of policy concerning operations and procedures of the compact within that state.

  3. In addition to the commissioners who are the voting representatives of each state, the interstate commission shall include individuals who are not commissioners but who are members of interested organizations; such noncommissioner members must include a member of the national organizations of governors, legislators, state chief justices, attorneys general, and crime victims. All noncommissioner members of the interstate commission shall be exofficio (nonvoting) members. The interstate commission may provide in its bylaws for such additional exofficio, nonvoting members as it deems necessary.
  4. Each compacting state represented at any meeting of the interstate commission is entitled to one vote. A majority of the compacting states shall constitute a quorum for the transaction of business, unless a larger quorum is required by the bylaws of the interstate commission.
  5. The interstate commission shall meet at least once each calendar year. The chairperson may call additional meetings and, upon the request of 27 or more compacting states, shall call additional meetings. Public notice shall be given of all meetings and meetings shall be open to the public.
  6. The interstate commission shall establish an executive committee which shall include commission officers, members, and others as shall be determined by the bylaws. The executive committee shall have the power to act on behalf of the interstate commission during periods when the interstate commission is not in session, with the exception of rulemaking and/or amendment to the compact. The executive committee oversees the day-to-day activities managed by the executive director and interstate commission staff; administers enforcement and compliance with the provisions of the compact, its bylaws, and as directed by the interstate commission and performs other duties as directed by commission or set forth in the bylaws.

ARTICLE IV POWERS AND DUTIES OF THE INTERSTATE COMMISSION

The interstate commission shall have the following powers:

  1. To adopt a seal and suitable bylaws governing the management and operation of the interstate commission.
  2. To promulgate rules which shall have the force and effect of statutory law and shall be binding in the compacting states to the extent and in the manner provided in this compact.
  3. To oversee, supervise, and coordinate the interstate movement of offenders subject to the terms of this compact and any bylaws adopted and rules promulgated by the compact commission.
  4. To enforce compliance with compact provisions, interstate commission rules, and bylaws, using all necessary and proper means, including, but not limited to, the use of judicial process.
  5. To establish and maintain offices.
  6. To purchase and maintain insurance and bonds.
  7. To borrow, accept, or contract for services of personnel, including, but not limited to, members and their staffs.
  8. To establish and appoint committees and hire staff which it deems necessary for the carrying out of its functions including, but not limited to, an executive committee as required by Article III which shall have the power to act on behalf of the interstate commission in carrying out its powers and duties hereunder.
  9. To elect or appoint such officers, attorneys, employees, agents, or consultants, and to fix their compensation, define their duties, and determine their qualifications; and to establish the interstate commission’s personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation, and qualifications of personnel.
  10. To accept any and all donations and grants of money, equipment, supplies, materials, and services, and to receive, utilize, and dispose of same.
  11. To lease, purchase, accept contributions or donations of, or otherwise to own, hold, improve, or use any property, real, personal, or mixed.
  12. To sell, convey, mortgage, pledge, lease, exchange, abandon, or otherwise dispose of any property, real, personal, or mixed.
  13. To establish a budget and make expenditures and levy dues as provided in Article IX of this compact.
  14. To sue and be sued.
  15. To provide for dispute resolution among compacting states.
  16. To perform such functions as may be necessary or appropriate to achieve the purposes of this compact.
  17. To report annually to the legislatures, governors, judiciary, and state councils of the compacting states concerning the activities of the interstate commission during the preceding year. Such reports shall also include any recommendations that may have been adopted by the interstate commission.
  18. To coordinate education, training, and public awareness regarding the interstate movement of offenders for officials involved in such activity.
  19. To establish uniform standards for the reporting, collecting, and exchanging of data.

ARTICLE V ORGANIZATION AND OPERATION OF THE INTERSTATE COMMISSION

Section A. Bylaws
  1. The interstate commission shall, by a majority of the members, within twelve months of the first interstate commission meeting, adopt bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to:
    1. Establishing the fiscal year of the interstate commission;
    2. Establishing an executive committee and such other committees as may be necessary;
    3. Providing reasonable standards and procedures:

      (i) For the establishment of committees, and

    4. Providing reasonable procedures for calling and conducting meetings of the interstate commission, and ensuring reasonable notice of each such meeting;
    5. Establishing the titles and responsibilities of the officers of the interstate commission;
    6. Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the interstate commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the interstate commission;
    7. Providing a mechanism for winding up the operations of the interstate commission and the equitable return of any surplus funds that may exist upon the termination of the compact after the payment and/or reserving of all of its debts and obligations;
    8. Providing transition rules for “start up” administration of the compact; and
    9. Establishing standards and procedures for compliance and technical assistance in carrying out the compact.
Section B. Officers and Staff
  1. The interstate commission shall, by a majority of the members, elect from among its members a chairperson and a vice chairperson, each of whom shall have such authorities and duties as may be specified in the bylaws. The chairperson or, in his or her absence or disability, the vice chairperson, shall preside at all meetings of the interstate commission. The officers so elected shall serve without compensation or remuneration from the interstate commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the interstate commission.
  2. The interstate commission shall, through its executive committee, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the interstate commission may deem appropriate. The executive director shall serve as secretary to the interstate commission, and hire and supervise such other staff as may be authorized by the interstate commission, but shall not be a member.
Section C. Corporate Records of the Interstate Commission

The interstate commission shall maintain its corporate books and records in accordance with the bylaws.

Section D. Qualified Immunity, Defense, and Indemnification
  1. The members, officers, executive director, and employees of the interstate commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that nothing in this paragraph shall be construed to protect any such person from suit and/or liability for any damaged, loss, injury, or liability caused by the intentional or willful and wanton misconduct of any such person.
  2. The interstate commission shall defend the commissioner of a compacting state, or his or her representatives or employees, or the interstate commission’s representatives or employees, in any civil action seeking to impose liability, arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that the defendant had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities; provided, that the actual or alleged act, error, or omission did not result from intentional wrongdoing on the part of such person.
  3. The interstate commission shall indemnify and hold the commissioner of a compacting state, the appointed designee or employees, or the interstate commission’s representatives or employees, harmless in the amount of any settlement or judgment obtained against such persons arising out of any actual or alleged act, error, or omission that occurred within the scope of interstate commission employment, duties, or responsibilities, or that such persons had a reasonable basis for believing occurred within the scope of interstate commission employment, duties, or responsibilities, provided, that the actual or alleged act, error, or omission did not result from gross negligence or intentional wrongdoing on the part of such person.

ARTICLE VI ACTIVITIES OF THE INTERSTATE COMMISSION

  1. The interstate commission shall meet and take such actions as are consistent with the provisions of this compact.
  2. Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the interstate commission, such act shall have been taken at a meeting of the interstate commission and shall have received an affirmative vote of a majority of the members present.
  3. Each member of the interstate commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the interstate commission. A member shall vote in person on behalf of the state and shall not delegate a vote to another member state. However, a state council shall appoint another authorized representative, in the absence of the commissioner from that state, to cast a vote on behalf of the member state at a specified meeting. The bylaws may provide for members’ participation in meetings by telephone or other means of telecommunication or electronic communication. Any voting conducted by telephone, or other means of telecommunication or electronic communication, shall be subject to the same quorum requirements of meetings where members are present in person.
  4. The interstate commission shall meet at least once during each calendar year. The chairperson of the interstate commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
  5. The interstate commission’s bylaws shall establish conditions and procedures under which the interstate commission shall make its information and official records available to the public for inspection or copying. The interstate commission may exempt from disclosure any information or official records to the extent they would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the interstate commission may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
  6. Public notice shall be given of all meetings, and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in the compact. The interstate commission shall promulgate rules consistent with the principles contained in the “Government in Sunshine Act,” 5 U.S.C. Section 552(b), as may be amended. The interstate commission and any of its committees may close a meeting to the public where it determines by two-thirds vote that an open meeting would be likely to:
    1. Relate solely to the interstate commission’s internal personnel practices and procedures;
    2. Disclose matters specifically exempted from disclosure by statute;
    3. Disclose trade secrets or commercial or financial information which is privileged or confidential;
    4. Involve accusing any person of a crime, or formally censuring any person;
    5. Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
    6. Disclose investigatory records compiled for law enforcement purposes;
    7. Disclose information contained in or related to examination, operating, or conditions reports prepared by, or on behalf of or for the use of, the interstate commission with respect to a regulated entity for the purpose of regulation or supervision of such entity;
    8. Disclose information, the premature disclosure of which would significantly endanger the life of a person or the stability of a regulated entity; or
    9. Specifically relate to the interstate commission’s issuance of a subpoena, or its participation in a civil action or proceeding.
  7. For every meeting closed pursuant to this provision, the interstate commission’s chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The interstate commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote (reflected in the vote of each member on the question). All documents considered in connection with any action shall be identified in such minutes.
  8. The interstate commission shall collect standardized data concerning the interstate movement of offenders as directed through its bylaws and rules which shall specify the data to be collected, the means of collection, and data exchange and reporting requirements.

ARTICLE VII RULEMAKING FUNCTIONS OF THE INTERSTATE COMMISSION

  1. The interstate commission shall promulgate rules in order to effectively and efficiently achieve the purposes of the compact including transition rules governing administration of the compact during the period in which it is being considered and enacted by the states;
  2. Rulemaking shall occur pursuant to the criteria set forth in this article and the bylaws and rules adopted pursuant thereto. Such rulemaking shall substantially conform to the principles of the Federal Administrative Procedure Act, 5 U.S.C. Sections 551 et seq., and the Federal Advisory Committee Act, 5 U.S.C. App. 2, Sections 1 et seq., as may be amended (hereinafter “APA”).
  3. All rules and amendments shall become binding as of the date specified in each rule or amendment.
  4. If a majority of the legislatures of the compacting states rejects a rule, by enactment of a statute or resolution in the same manner used to adopt the compact, then such rule shall have no further force and effect in any compacting state.
  5. When promulgating a rule, the interstate commission shall:
    1. Publish the proposed rule stating with particularity the text of the rule which is proposed and the reason for the proposed rule;
    2. Allow persons to submit written data, facts, opinions, and arguments, which information shall be publicly available;
    3. Provide an opportunity for an informal hearing; and
    4. Promulgate a final rule and its effective date, if appropriate, based on the rulemaking record.
  6. Not later than sixty days after a rule is promulgated, any interested person may file a petition in the United States District Court for the District of Columbia or in the Federal District Court where the interstate commission’s principal office is located for judicial review of such rule. If the court finds that the interstate commission’s action is not supported by substantial evidence (as defined in the APA) in the rulemaking record, the court shall hold the rule unlawful and set it aside.
  7. Subjects to be addressed within 12 months after the first meeting must at a minimum include:
    1. Notice to victims and opportunity to be heard;
    2. Offender registration and compliance;
    3. Violations/returns;
    4. Transfer procedures and forms;
    5. Eligibility for transfer;
    6. Collection of restitution and fees from offenders;
    7. Data collection and reporting;
    8. The level of supervision to be provided by the receiving state;
    9. Transition rules governing the operation of the compact and the interstate commission during all or part of the period between the effective date of the compact and the date on which the last eligible state adopts the compact;
    10. Mediation, arbitration, and dispute resolution.

      The existing rules governing the operation of the previous compact superseded by this compact shall be null and void twelve (12) months after the first meeting of the interstate commission created hereunder.

  8. Upon determination by the interstate commission that an emergency exists, it may promulgate an emergency rule which shall become effective immediately upon adoption, provided that the usual rulemaking procedures provided hereunder shall be retroactively applied to said rule as soon as reasonably possible, in no event later than 90 days after the effective date of the rule.

ARTICLE VIII OVERSIGHT, ENFORCEMENT, AND DISPUTE RESOLUTION BY THE INTERSTATE COMMISSION

Section A. Oversight
  1. The interstate commission shall oversee the interstate movement of adult offenders in the compacting states and shall monitor such activities being administered in noncompacting states which may significantly affect compacting states.
  2. The courts and executive agencies in each compacting state shall enforce this compact and shall take all actions necessary and appropriate to effectuate the compact’s purposes and intent. In any judicial or administrative proceeding in a compacting state pertaining to the subject matter of this compact which may affect the powers, responsibilities, or actions of the interstate commission, the interstate commission shall be entitled to receive all service of process in any such proceeding, and shall have standing to intervene in the proceeding for all purposes.
Section B. Dispute Resolution
  1. The compacting states shall report to the interstate commission on issues or activities of concern to them, and cooperate with and support the interstate commission in the discharge of its duties and responsibilities.
  2. The interstate commission shall attempt to resolve any disputes or other issues which are subject to the compact and which may arise among compacting states and noncompacting states.
  3. The interstate commission shall enact a bylaw or promulgate a rule providing for both mediation and binding dispute resolution for disputes among the compacting states.
Section C. Enforcement

The interstate commission, in the reasonable exercise of its discretion, shall enforce the provisions of this compact using any or all means set forth in Article XI, Section B, of this compact.

ARTICLE IX FINANCE

  1. The interstate commission shall pay or provide for the payment of the reasonable expenses of its establishment, organization, and ongoing activities.
  2. The interstate commission shall levy on and collect an annual assessment from each compacting state to cover the cost of the internal operations and activities of the interstate commission and its staff which must be in a total amount sufficient to cover the interstate commission’s annual budget as approved each year. The aggregate annual assessment amount shall be allocated based upon a formula to be determined by the interstate commission, taking into consideration the population of the state and the volume of interstate movement of offenders in each compacting state and shall promulgate a rule binding upon all compacting states which governs said assessment.
  3. The interstate commission shall not incur any obligations of any kind prior to securing the funds adequate to meet the same; nor shall the interstate commission pledge the credit of any of the compacting states, except by and with the authority of the compacting state.
  4. The interstate commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the interstate commission shall be subject to the audit and accounting procedures established under its bylaws. However, all receipts and disbursements of funds handled by the interstate commission shall be audited yearly by a certified or licensed public accountant and the report of the audit shall be included in and become part of the annual report of the interstate commission.

ARTICLE X COMPACTING STATES, EFFECTIVE DATE, AND AMENDMENT

  1. Any state, as defined in Article II of this compact, is eligible to become a compacting state.
  2. The compact shall become effective and binding upon legislative enactment of the compact into law by no less than 35 of the states. The initial effective date shall be the later of July 1, 2001, or upon enactment into law by the thirty-fifth jurisdiction. Thereafter it shall become effective and binding, as to any other compacting state, upon enactment of the compact into law by that state. The governors of nonmember states or their designees will be invited to participate in interstate commission activities on a nonvoting basis prior to adoption of the compact by all states and territories of the United States.
  3. Amendments to the compact may be proposed by the interstate commission for the enactment by the compacting states. No amendment shall become effective and binding upon the interstate commission and the compacting states unless and until it is enacted into law by unanimous consent of the compacting states.

ARTICLE XI WITHDRAWAL, DEFAULT, TERMINATION, AND JUDICIAL ENFORCEMENT

Section A. Withdrawal
  1. Once effective, the compact shall continue in force and remain binding upon each and every compacting state; provided, that a compacting state may withdraw from the compact (“withdrawing state”) by enacting a statute specifically repealing the statute which enacted the compact into law.
  2. The effective date of withdrawal is the effective date of the repeal.
  3. The withdrawing state shall immediately notify the chairperson of the interstate commission in writing upon the introduction of legislation repealing this compact in the withdrawing state.
  4. The interstate commission shall notify the other compacting states of the withdrawing state’s intent to withdraw within sixty days of its receipt thereof.
  5. The withdrawing state is responsible for all assessments, obligations and liabilities incurred through the effective date of withdrawal, including any obligations, the performance of which extend beyond the effective date of withdrawal.
  6. Reinstatement following withdrawal of any compacting state shall occur upon the withdrawing state reenacting the compact or upon such later date as determined by the interstate commission.
Section B. Default
  1. If the interstate commission determines that any compacting state has at any time defaulted (“defaulting state”) in the performance of any of its obligations or responsibilities under this compact, the bylaws, or any duly promulgated rules, the interstate commission may impose any or all of the following penalties:
    1. Fines, fees, and costs in such amounts as are deemed to be reasonable as fixed by the interstate commission;
    2. Remedial training and technical assistance as directed by the interstate commission;
    3. Suspension and termination of membership in the compact. Suspension shall be imposed only after all other reasonable means of securing compliance under the bylaws and rules have been exhausted. Immediate notice of suspension shall be given by the interstate commission to the governor, the chief justice or chief judicial officer of the state, the majority and minority leaders of the defaulting state’s legislature, and the state council. The grounds for default include, but are not limited to, failure of a compacting state to perform such obligations or responsibilities imposed upon it by this compact, interstate commission bylaws, or duly promulgated rules. The interstate commission shall immediately notify the defaulting state in writing of the penalty imposed by the interstate commission on the defaulting state pending a cure of the default. The interstate commission shall stipulate the conditions and the time period within which the defaulting state must cure its default. If the defaulting state fails to cure the default within the time period specified by the interstate commission, in addition to any other penalties imposed herein, the defaulting state may be terminated from the compact upon an affirmative vote of a majority of the compacting states and all rights, privileges, and benefits conferred by this compact shall be terminated from the effective date of suspension.
  2. Within sixty days of the effective date of termination of a defaulting state, the interstate commission shall notify the governor, the chief justice or chief judicial officer, and the majority and minority leaders of the defaulting state’s legislature and the state council of such termination.
  3. The defaulting state is responsible for all assessments, obligations, and liabilities incurred through the effective date of termination including any obligations, the performance of which extends beyond the effective date of termination.
  4. The interstate commission shall not bear any costs relating to the defaulting state unless otherwise mutually agreed upon between the interstate commission and the defaulting state.
  5. Reinstatement following termination of any compacting state requires both a reenactment of the compact by the defaulting state and the approval of the interstate commission pursuant to the rules.
Section C. Judicial Enforcement

The interstate commission may, by majority vote of the members, initiate legal action in the United States District Court for the District of Columbia or, at the discretion of the interstate commission, in the federal district where the interstate commission has its offices to enforce compliance with the provisions of the compact, its duly promulgated rules, and bylaws, against any compacting state in default. In the event judicial enforcement is necessary, the prevailing party shall be awarded all costs of such litigation including reasonable attorneys fees.

Section D. Dissolution of Compact
  1. The compact dissolves effective upon the date of the withdrawal or default of the compacting state which reduces membership in the compact to one compacting state.
  2. Upon the dissolution of this compact, the compact becomes null and void and shall be of no further force or effect, and the business and affairs of the interstate commission shall be wound up and any surplus funds shall be distributed in accordance with the bylaws.

ARTICLE XII SEVERABILITY AND CONSTRUCTION

  1. The provisions of this compact shall be severable, and if any phrase, clause, sentence, or provision is deemed unenforceable, the remaining provisions of the compact shall be enforceable.
  2. The provisions of this compact shall be liberally constructed to effectuate its purposes.

ARTICLE XIII BINDING EFFECT OF COMPACT AND OTHER LAWS

Section A. Other Laws
  1. Nothing herein prevents the enforcement of any other law of a compacting state that is not inconsistent with this compact.
  2. All compacting states’ laws conflicting with this compact are superseded to the extent of the conflict.
Section B. Binding Effect of the Compact
  1. All lawful actions of the interstate commission, including all rules and bylaws promulgated by the interstate commission, are binding upon the compacting states.
  2. All agreements between the interstate commission and the compacting states are binding in accordance with their terms.
  3. Upon the request of a party to a conflict over meaning or interpretation of interstate commission actions, and upon a majority vote of the compacting states, the interstate commission may issue advisory opinions regarding such meaning or interpretation.
  4. In the event any provision of this compact exceeds the constitutional limits imposed on the legislature of any compacting state, the obligations, duties, powers, or jurisdiction sought to be conferred by such provision upon the interstate commission shall be ineffective and such obligations, duties, powers, or jurisdiction shall remain in the compacting state and shall be exercised by the agency thereof to which such obligations, duties, powers, or jurisdiction are delegated by law in effect at the time this compact becomes effective.

    (2) This compact may be cited as the Interstate Compact for Adult Offender Supervision.

Legislative Research Commission Notes.

(6/19/2002). Under 2000 Ky. Acts ch. 273, sec. 4, this section “takes effect the later of July 1, 2001, or upon enactment of the Interstate Compact for Adult Offender Supervision, in substantially the form set out in [this section], by no less than thirty-five states, as that term is defined in [this section].” On June 19, 2002, the thirty-fifth state enacted the compact, and this section took effect.

439.562. Kentucky Council for Interstate Adult Offender Supervision — Membership — Meetings — Reimbursement — Administrative regulations.

  1. To oversee the intrastate affairs of the Interstate Compact for Adult Offender Supervision, the Kentucky Council for Interstate Adult Offender Supervision is created and attached to the Office of the Secretary of the Justice and Public Safety Cabinet for administrative purposes.
  2. The membership of the council shall consist of:
    1. The commissioner of the Department of Corrections, ex officio;
    2. The compact administrator of the Department of Corrections, ex officio;
    3. The deputy commissioner of the Office of Community Services and Facilities, ex officio;
    4. One (1) member of the House of Representatives selected by the Speaker of the House of Representatives and appointed by the Governor;
    5. One (1) member of the Senate selected by the President of the Senate and appointed by the Governor;
    6. Two (2) members of the judiciary selected by the Chief Justice of the Kentucky Supreme Court and appointed by the Governor; and
    7. Six (6) at-large members, appointed by the Governor, representing victim groups and other community interest groups.
  3. Of the initial members, except those serving ex officio, three (3) members shall be appointed to serve terms of four (4) years, three (3) members shall be appointed to terms of three (3) years, three (3) members shall be appointed to terms of two (2) years, and one (1) member shall be appointed to a term of one (1) year. Thereafter, members shall be appointed to terms of four (4) years or until their successors have been duly appointed and qualified. Members may be reappointed and vacancies shall be immediately filled, in like manner, for the unexpired term.
  4. The Kentucky Council for Interstate Adult Offender Supervision shall meet at least annually, at the call of the chair, and shall:
    1. Advocate when seeking resources;
    2. Provide recommendations regarding operational improvements;
    3. Provide recommendations regarding dispute resolution;
    4. Provide recommendations regarding training needs;
    5. Provide recommendations regarding policy changes; and
    6. Serve as a support mechanism for the Kentucky Compact Office.
  5. The Governor shall designate one (1) member of the council as chairperson and one (1) member as vice chairperson, and a member so designated shall serve in that capacity at the pleasure of the Governor or until his or her term expires.
  6. Members of the council shall serve without compensation but shall be reimbursed for expenses actually and necessarily incurred in the performance of their duties, subject to Finance and Administration Cabinet administrative regulations.
  7. Except as otherwise provided in this section, the Department of Corrections may promulgate administrative regulations necessary to administer the Interstate Compact for Adult Offender Supervision.

History. Enact. Acts 2000, ch. 473, § 2, effective June 19, 2002; repealed and reenact., Acts 2013, ch. 72, § 7, effective June 25, 2013.

Legislative Research Commission Notes.

(6/19/2002). Under 2000 Ky. Acts ch. 273, sec. 4, this section “takes effect the later of July 1, 2001, or upon enactment of the Interstate Compact for Adult Offender Supervision, in substantially the form set out in [KRS 439.561 ], by no less than thirty-five states, as that term is defined in [KRS 439.561 ].” On June 19, 2002, the thirty-fifth state enacted the compact, and this section took effect.

439.563. Restitution as condition of parole — Board order — Effect on length of parole.

  1. When there is an identified victim of a defendant’s crime to whom restitution has been ordered but not yet paid in full, or restitution has been ordered paid to a government agency and has not yet been paid in full, the Parole Board shall order the defendant to pay restitution as a condition of parole.
  2. When the Parole Board orders restitution, the board shall:
    1. Order the restitution to be paid to a specific person or organization through the Division of Probation and Parole, which shall disburse the moneys as ordered by the board;
    2. Set the amount of restitution to be paid, if not already set;
    3. Set the amount and frequency of each restitution payment or require the payment to be made in a lump sum.
  3. When the Parole Board orders restitution, the Department of Probation and Parole shall:
    1. Monitor and oversee the collection of the restitution;
    2. Institute parole violation proceedings if the restitution is not being paid;
    3. Institute sanctions against the defendant if restitution is not being paid and good cause is not shown for the nonpayment; and
    4. Maintain parole supervision over the defendant until restitution has been paid in full.
  4. The board, in addition to any other sanctions which may be imposed on the defendant, may ask a court to hold a defendant who is not paying restitution in the manner or amount prescribed in contempt of court.
  5. Any statute relating to the length of parole supervision notwithstanding, the parole for a person owing restitution shall be until the restitution is paid in full, even if this would lengthen the period of supervision beyond the statutory limit of parole supervision or the statutory limit for serving out the sentence imposed.
  6. Payment of restitution in full prior to the end of the period of parole supervision shall not shorten the period of parole supervision.

History. Enact. Acts 1998, ch. 606, § 47, effective July 15, 1998; 2000, ch. 345, § 5, effective July 14, 2000; 2014, ch. 94, § 6, effective July 15, 2014.

NOTES TO DECISIONS

1.Restitution as Condition of Parole.

Trial court’s conclusion that the trial court only had the authority to award restitution if the trial court ordered that defendant be sentenced to probation or if defendant had a chance for parole was flawed as it would mean that a defendant who had committed a crime so severe that the defendant was not eligible for probation or parole would not have to pay restitution while a defendant who committed a lesser crime allowing for probation or parole would have to pay restitution, which was clearly not what the legislature intended. Clay v. Commonwealth, 2002 Ky. App. LEXIS 1920 (Ky. Ct. App. Sept. 6, 2002).

2.—Complete Restitution.

Complete, not partial, restitution to the victim of defendant’s crime was required by statute because defendant pleaded guilty to a Class D felony offense; defendant received the benefit of the bargain in his plea agreement because the net effect of his plea agreement was that he would serve no additional time in prison for theft. Ridenour v. Commonwealth, 2021 Ky. App. LEXIS 88 (Ky. Ct. App. Aug. 6, 2021).

Cited in:

Commonwealth v. O’Bryan, 97 S.W.3d 454, 2003 Ky. App. LEXIS 35 (Ky. Ct. App. 2003).

439.570. Persons accepted for supervision under compact subject to arrest and detention — Notice to sending state — Applicability of supervision fee and of drug testing and substance abuse treatment fee.

  1. All persons accepted for supervision under the terms of the interstate compact as set forth in KRS 439.560 shall be subject to arrest or detention by a probation or parole officer under the same circumstances as Kentucky probationers or parolees. The probation or parole officer shall immediately notify the sending state through the interstate compact of the arrest or detention of the person in question, setting forth the reasons for the arrest or detention.
  2. All persons accepted for supervision under the terms of the interstate compact as set forth in KRS 439.560 shall be subject to the payment of a supervision fee as established in KRS 439.315 and the payment of a drug testing and substance abuse treatment fee as conditions of supervision imposed by the Division of Probation and Parole. Failure to pay the required supervision fee or drug testing and substance abuse treatment fee is grounds for the termination of supervision or shall subject the person to the initiation of revocation proceedings under the same circumstances as set forth in KRS 439.315 . For purposes of implementing KRS 439.315, the Division of Probation and Parole shall be the releasing authority.

History. Enact. Acts 1968, ch. 77, § 1; 1994, ch. 418, § 13, effective July 15, 1994.

Compiler’s Notes.

KRS 439.560 , referred to in this section, has been repealed.

Opinions of Attorney General.

This section gives parole and probation officers the same power of arrest over persons accepted for supervision under the terms of the interstate compact as set forth in KRS 439.560 (repealed) as they previously had over Kentucky probationers and parolees under KRS 439.300 (repealed) and KRS 439.430 . OAG 63-742 was superseded to this effect by the enactment of this section. OAG 73-405 .

439.575. Prerelease probation of inmates program.

  1. There is hereby created a program for prerelease probation of inmates confined in correctional facilities under the jurisdiction of or under contract to the Department of Corrections.
  2. Any inmate who is in a prerelease program or eligible for a prerelease program as specified by administrative regulations of the Department of Corrections may apply to the sentencing court for prerelease probation.
  3. The court, upon favorable recommendation of the Department of Corrections, may place the inmate on probation under those terms and conditions the court deems necessary, which may include but not need to be limited to those specified in KRS 533.030 .
  4. In particular, the court may require that an inmate placed on prerelease probation remain in a halfway house approved by the Department of Corrections and that the probationer pay the cost of his or her lodging in the halfway house and the costs of probation supervision in accordance with applicable statutes for probation supervision and persons granted work release from jail. Costs for lodging in a halfway house or other facility approved, but not operated, by the Department of Corrections shall be paid by the defendant directly to the halfway house or other facility at the rate specified by court order or by the Department of Corrections.
  5. An inmate placed on prerelease probation shall no longer be considered as an inmate of the Department of Corrections but shall be considered as a defendant placed on probation, subject to supervision by the Division of Probation and Parole, or other agency approved by the court, and the orders of the court.
  6. A person placed on prerelease probation by the court who violates the conditions of his or her probation may be dealt with by the court in the same manner as any other person who violates the conditions of probation.
  7. The period of probation under this section shall not exceed the maximum expiration date of the inmate applying for the probation.

History. Enact. Acts 1998, ch. 606, § 119, effective July 15, 1998; 2002, ch. 183, § 27, effective August 1, 2002.

NOTES TO DECISIONS

1.Constitutionality.

Although the Circuit Court declared this section to be unconstitutional, the section has the worthy purpose of providing for a thirty (30) to sixty (60) day observation period to be served before the sentencing court is required to reach a final decision as to the granting of probation, and there is nothing unconstitutional in giving the courts this kind of limited control over their judgments. Prater v. Commonwealth, 1999 Ky. App. LEXIS 155 (Ky. Ct. App. Dec. 23, 1999), aff'd, 82 S.W.3d 898, 2002 Ky. LEXIS 166 ( Ky. 2002 ).

Kentucky Supreme Court declared KRS 439.575 to be unconstitutional because it impermissibly conferred the executive power of parole upon the judiciary, in violation of the separation of powers doctrine as set forth in Ky. Const. § 28. Prater v. Commonwealth, 82 S.W.3d 898, 2002 Ky. LEXIS 166 ( Ky. 2002 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Community Residential Correctional Centers

439.580. Definitions for KRS 439.590 to 439.630.

As used in KRS 439.590 to 439.630 , unless the context otherwise requires:

  1. “Secretary” means the secretary of the Justice and Public Safety Cabinet;
  2. “Commissioner” means the commissioner of the Department of Corrections;
  3. “Department” means the Department of Corrections;
  4. “Facility” means the community correctional center; and
  5. “Relative” means a spouse; child, including stepchild, adopted child, or child as to whom the prisoner, though not a biological parent, has acted in the place of a parent; parent including a person who, though not a biological parent, has acted in the place of a parent; brother; sister; or grandparents.

History. Enact. Acts 1972, ch. 293, § 1; 1974, ch. 74, Art. V, § 24(14); 1974, ch. 308, § 63; 1982, ch. 344, § 53, effective July 15, 1982; 1992, ch. 211, § 101, effective July 14, 1992; 2007, ch. 85, § 322, effective June 26, 2007.

NOTES TO DECISIONS

Cited in:

Rosary Catholic Parish v. Whitfield, 729 S.W.2d 27, 1987 Ky. App. LEXIS 480 (Ky. Ct. App. 1987).

439.590. Community residential correctional centers.

The Department of Corrections may establish community residential correctional centers at locations approved by the legislative body of the area where located as places of confinement for convicted felons. The commissioner, or a person the commissioner delegates, may, at his own discretion, transfer prisoners to a residential center from any correctional institution for the purpose of facilitating the rehabilitation of the prisoner except as set out in KRS 439.620 .

History. Enact. Acts 1972, ch. 293, § 2; 1974, ch. 74, Art. V, § 24(14); 1982, ch. 344, § 54, effective July 15, 1982; 1992, ch. 211, § 102, effective July 14, 1992.

NOTES TO DECISIONS

Cited in:

Commonwealth ex rel. Hancock v. Holmes, 509 S.W.2d 258, 1974 Ky. LEXIS 555 ( Ky. 1974 ); Rosary Catholic Parish v. Whitfield, 729 S.W.2d 27, 1987 Ky. App. LEXIS 480 (Ky. Ct. App. 1987); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ).

Opinions of Attorney General.

The phrase “other minimum security correctional institutions” in KRS 196.070 would embrace a community residential correctional center, as mentioned in this section. OAG 84-356 .

Under the statutes relating to the duties of the Secretary of the Corrections Cabinet (now Department of Corrections), penal institutions must be directly supervised, administered and operated by the Corrections Cabinet; there are no statutes permitting the delegation of such operational function to any other agency or to private enterprise. OAG 84-356 .

Under this section, where the correctional center is to be established in unincorporated territory of a county, the fiscal court would have to approve the precise location or site of such correctional center; the approval of the legislature of the city government would be necessary where the location is within the boundaries of an incorporated city. OAG 84-356 .

439.600. Extension of limits of place of confinement — Conditions.

  1. The commissioner, or a person he delegates, may extend the limits of the place of confinement of a prisoner if there is reasonable cause to believe the prisoner will honor his trust, by authorizing him, under prescribed conditions, to:
    1. Visit specifically designated places within the boundaries of Kentucky for a period not to exceed seven (7) days and return to the same institution or facility. An extension of limits may be granted only to permit a visit to a dying relative, attendance at the funeral of a relative, the contacting of prospective employers, or for any other compelling reason consistent with the public interest, or to promote the welfare and rehabilitation of the inmate; or
    2. Be transferred to a medical facility outside the correctional facility for a period of time as required to receive necessary medical services not available in the institution; or
    3. Participate in an educational training program in the community on a voluntary basis while continuing as a prisoner of the institution or facility to which he is committed or confined; or
    4. To do work at paid employment in the community on a voluntary basis returning to the institution or to the facility at night.
  2. A prisoner authorized to work at paid employment in the community under the provision of this subsection shall surrender to the commissioner of the department, or his designate, his earnings, less standard payroll deductions required by law. After deducting from the earning of each prisoner an amount determined to be the cost of the prisoner’s keep and confinement, which sum shall be deposited in the Kentucky State Treasury as trust and agency receipts at the place of confinement of the inmate, the commissioner of the department, or his designate shall:
    1. Allow the prisoner to draw from the balance a reasonable sum to cover his incidental expenses;
    2. Retain to the prisoner’s credit an amount deemed necessary to accumulate a reasonable sum to be paid to him on his release from prison;
    3. Cause to be paid any additional balance as is needed for the support of the prisoner’s dependents.

History. Enact. Acts 1972, ch. 293, § 3; 1982, ch. 344, § 55, effective July 15, 1982; 1992, ch. 211, § 103, effective July 14, 1992.

NOTES TO DECISIONS

1.Constitutionality.

Subdivision (4) (now subdivision (1)(d) and subsection (2)) of this section is contrary to Ky. Const., § 253 which authorizes the use of prison labor on county roads and bridges only. Commonwealth ex rel. Hancock v. Holmes, 509 S.W.2d 258, 1974 Ky. LEXIS 555 ( Ky. 1974 ).

2.Trustworthiness.

The prohibitions embodied in KRS 197.140 , which bar offenders in the designated categories from outside work programs, may not be applied as a blanket prohibition against community minimum status and such an overbroad interpretation of KRS 197.140 violates inmates’ right under this section to be considered for study release solely on the basis of trustworthiness. Eligibility for minimum security status, and community programs under this section, may be limited only by valid correctional concerns related to participation in those programs. Canterino v. Wilson, 546 F. Supp. 174, 1982 U.S. Dist. LEXIS 15488 (W.D. Ky. 1982 ), aff'd, 875 F.2d 862, 1989 U.S. App. LEXIS 4789 (6th Cir. Ky. 1989 )

3.Liberty Interest.

This section, KRS 197.140 , and 197.065 establish no liberty interest for prison inmates. Canterino v. Wilson, 869 F.2d 948, 1989 U.S. App. LEXIS 2907 (6th Cir. Ky. 1989 ).

Opinions of Attorney General.

Kentucky law precludes the utilization of state prisoners for employment by federal contractors; subdivision (1)(d) and subsection (2) of this section, as drawn and implemented by KRS 439.620 , are contrary to Const., § 253. OAG 84-295 .

439.610. Conduct constituting escape from custody.

The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility to which he was committed or transferred to after commitment, constitutes an escape from custody punishable as provided in KRS 520.030 .

History. Enact. Acts 1972, ch. 293, § 4; 1974, ch. 406, § 335.

NOTES TO DECISIONS

1.Home Incarceration Program.

Defendant was properly convicted of second-degree escape under KRS 520.030 after defendant cut off an ankle band and fled from a home incarceration program while serving 12 months for a misdemeanor because defendant remained in the county detention center’s custody even though defendant was not physically confined within the center, and no third-degree escape instruction was required since defendant offered no testimony from which jurors could have concluded that defendant was restrained by a public servant or any entity other than the center. Lawton v. Commonwealth, 2010 Ky. App. LEXIS 54 (Ky. Ct. App. Feb. 26, 2010), rev'd, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

439.620. Employment for prisoner — Considerations in securing.

Before securing employment for any prisoner under the provisions of KRS 439.600 , the commissioner shall determine:

  1. That the paid employment will not result in the displacement of employed workers, or be applied in skills, crafts, or trades in which there is a surplus of available gainful labor in the locality, or impair existing contracts for services; and
  2. That the rates of pay or other conditions of employment will not be less than those paid or provided for work of similar nature in the locality in which the work is performed.

History. Enact. Acts 1972, ch. 293, § 5; 1982, ch. 344, § 56, effective July 15, 1982; 1992, ch. 211, § 104, effective July 14, 1992.

NOTES TO DECISIONS

Cited in:

Commonwealth ex rel. Hancock v. Holmes, 509 S.W.2d 258, 1974 Ky. LEXIS 555 ( Ky. 1974 ).

439.630. Scope of commissioner’s authority.

The authority conferred upon the commissioner, or the person the commissioner delegates, to extend the limits of confinement of a prisoner or to grant furloughs by KRS 439.580 to 439.630 , extends to all persons committed to any correctional institution or facility.

History. Enact. Acts 1972, ch. 293, § 6; 1982, ch. 344, § 57, effective July 15, 1982; 1992, ch. 211, § 105, effective July 14, 1992.

Vocational Training for Prisoners

439.640. Vocational training program for prisoners — Eligibility for compensation — Commissioner to recommend regulations.

  1. The commissioner of the Department of Corrections may, during the last ninety (90) days of confinement of an inmate committed to a correctional facility maintained and operated by the department, permit an inmate to participate in a vocational training program in the community on a voluntary basis. The vocational training program shall be for the express purpose of permitting the inmate to improve vocational skills to assist the inmate to secure permanent employment prior to release by the department. The inmate shall be eligible to receive compensation while participating in a vocational training program subject to the discharge of his regular financial obligations, to include standard payroll withholding, maintenance, support of dependents, and restitution.
  2. The commissioner shall recommend administrative regulations to implement the provisions of the vocational training program.

History. Enact. Acts 1976, ch. 147, § 1; 1982, ch. 344, § 58, effective July 15, 1982; 1992, ch. 211, § 106, effective July 14, 1992.

NOTES TO DECISIONS

1.Equal Access.

A desire to preserve the state’s limited resources cannot be used to justify an allocation of those limited resources which unfairly denies women inmates equal access to academic, vocational, and training opportunity programs that are routinely available to men. Canterino v. Wilson, 546 F. Supp. 174, 1982 U.S. Dist. LEXIS 15488 (W.D. Ky. 1982 ), aff'd, 875 F.2d 862, 1989 U.S. App. LEXIS 4789 (6th Cir. Ky. 1989 ).

Reentry Drug Supervision Pilot Program

439.650. Definitions for KRS 439.650 to 439.657.

As used in KRS 439.650 to 439.657 :

  1. “Department” means the Department of Corrections;
  2. “Drug” means alcohol or a controlled substance as defined in KRS 218A.010 ;
  3. “Drug supervision session” means a meeting between the reentry team and the participant to discuss the participant’s progress through the reentry drug supervision pilot program;
  4. “Participant” means an inmate or parolee selected to participate in the reentry drug supervision pilot program;
  5. “Reentry drug supervision pilot program” or “pilot program” means the program created under KRS 439.651 ;
  6. “Reentry team” means the team organized under KRS 439.652 to administer and oversee the reentry drug supervision pilot program; and
  7. “Substance use disorder” has the same meaning as in the current edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

History. 2017 ch. 158, § 17, effective June 29, 2017.

439.651. Reentry drug supervision pilot program — Duration — Elements — Evaluation — Reports — Administrative regulations.

  1. By March 2018, the department shall implement a reentry drug supervision pilot program with the goal of restoring lives and reducing recidivism through oversight and behavior modification.
  2. The reentry drug supervision pilot program shall last four (4) years and shall:
    1. Be administered and overseen by a reentry team organized under KRS 439.652 ;
    2. Be composed of inmates or parolees placed in the pilot program pursuant to KRS 439.653 ;
    3. Consist of two (2) phases as outlined in KRS 439.654 ;
    4. Provide a continuum of substance use disorder treatments and rehabilitative services;
    5. Monitor participants with frequent drug testing;
    6. Implement a coordinated strategy to govern the pilot program’s responses to participants’ compliance;
    7. Require ongoing reentry team interaction with each participant; and
    8. Forge partnerships among public agencies and community-based organizations.
  3. The department shall monitor and evaluate the reentry drug supervision pilot program to determine:
    1. The number of participants who complete the pilot program;
    2. Of the participants who complete the pilot program, the number who later have their parole revoked and for what offense or, if no longer on parole, the number who commit new offenses and a description of those new offenses;
    3. The number of participants terminated from the pilot program, the reason for their termination, and how long they participated in the pilot program before termination; and
    4. Any savings associated from placing participants in the pilot program versus keeping those participants incarcerated.
  4. For a total of seven (7) years, the department shall provide an annual report to the Legislative Research Commission and to the Interim Joint Committee on Judiciary by January 1 of each year the reentry drug supervision pilot program is in operation as well as the following three (3) years. The report shall include the data detailed in subsection (3) of this section.
  5. The department may promulgate administrative regulations to implement KRS 439.650 to 439.657 .

History. 2017 ch. 158, § 18, effective June 29, 2017.

439.652. Administration and oversight of pilot program — Reentry team members, training, and functions — Confidentiality of proceedings — Exception.

  1. The reentry team shall administer and oversee the reentry drug supervision pilot program. The team shall consist of the following members:
    1. A department hearing officer shall lead the reentry team and ensure that due process is followed. If reentry team members disagree on incentives or sanctions, the hearing officer shall be the final decision maker;
    2. A parole officer who shall have regular parole officer duties, including drug testing and maintaining records;
    3. A reentry liaison or facilitator from the Division of Probation and Parole;
    4. A social service clinician;
    5. A public defender or his or her designated representative who may or may not be an attorney; and
    6. A designated representative from a community mental health center who shall provide substance use disorder treatment to participants.
  2. The Administrative Office of the Courts shall train reentry team members on the philosophy behind drug courts as well as their roles within the team.
  3. The reentry team may provide incentives, including but not limited to the following:
    1. Promotion to the next phase as outlined in KRS 439.654 ;
    2. Certificates and tokens;
    3. Compliance credit or any other parole credit approved by the reentry team;
    4. Decreased supervision;
    5. Increased privileges and responsibilities;
    6. Praise from the hearing officer and reentry team;
    7. Extended curfews; and
    8. Other individual incentives approved by the reentry team.
    1. Notwithstanding KRS 439.3108 or 439.340(3)(b) or any other statute to the contrary, only the reentry team may impose sanctions on participants who do not comply with the requirements and conditions established by the reentry team. Notwithstanding KRS 439.3107 or 439.3108 or any other statute to the contrary, sanctions include but are not limited to the following: (4) (a) Notwithstanding KRS 439.3108 or 439.340(3)(b) or any other statute to the contrary, only the reentry team may impose sanctions on participants who do not comply with the requirements and conditions established by the reentry team. Notwithstanding KRS 439.3107 or 439.3108 or any other statute to the contrary, sanctions include but are not limited to the following:
      1. Admonishments by the hearing officer;
      2. Graduated sanctions similar to those adopted by the department pursuant to KRS 439.3107;
      3. Community service;
      4. Phase demotion;
      5. Increased pilot program requirements;
      6. Electronic monitoring;
      7. Home incarceration;
      8. Imprisonment in a state or local correctional or detention facility or residential center for no more than sixty (60) days in any one (1) calendar year; and
      9. Termination from the pilot program.
    2. When considering appropriate sanctions, the reentry team shall consider alternatives to incarceration.
    3. Notwithstanding paragraph (a) of this subsection, a parole officer may arrest a participant without first consulting the reentry team if the parole officer believes the participant poses an imminent threat to himself or herself or to others. The parole officer shall immediately notify the reentry team of the arrest. Upon receiving notification of the arrest, the reentry team shall then determine whether to impose additional sanctions.
  4. Reentry team proceedings shall be confidential and shall be closed unless otherwise authorized by the hearing officer. Each reentry team member shall sign a confidentiality agreement and shall comply with state and federal confidentiality laws regarding treatment information. Documents contained in a participant’s pilot program case file shall be confidential and only those documents that do not violate these state and federal confidentiality laws shall be released.

History. 2017 ch. 158, § 19, effective June 29, 2017.

439.653. Referral of inmates or parolees to pilot program — Substance abuse assessments — Factors to be considered — Conditions of referral.

  1. The department shall implement the reentry drug supervision pilot program created under KRS 439.651 for inmates or parolees placed in the pilot program pursuant to this section.
  2. Inmates or parolees may be referred to the Parole Board as candidates for the pilot program by either the department’s Division of Substance Abuse Programming as outlined in subsection (3) of this section or the department’s hearing officers as outlined in subsection (4) of this section.
    1. After sentencing, the department’s Division of Substance Abuse Programming shall conduct a substance abuse assessment of the following inmates: (3) (a) After sentencing, the department’s Division of Substance Abuse Programming shall conduct a substance abuse assessment of the following inmates:
      1. Inmates whose offense for which he or she was sentenced:
        1. Does not qualify him or her as a violent offender as defined in KRS 439.3401 or a sexual offender as defined in KRS 17.550 ; and
        2. Did not result in death or serious physical injury of a victim;
      2. Inmates:
        1. Who have been convicted of, or entered an Alford plea or plea of nolo contendere to, a Class C or D felony that is:
          1. A drug offense; or
          2. An offense arising from a substance use disorder; or
        2. Whose probation or parole was revoked due to a substance use disorder or those with a history of substance use disorder; and
      3. Inmates who have not previously participated in the reentry drug supervision pilot program.
    2. After reviewing the substance abuse assessments required under paragraph (a) of this subsection, the department’s Division of Substance Abuse Programming shall refer to the Parole Board those inmates determined by the division to be candidates for the reentry drug supervision pilot program.
  3. During a preliminary parole revocation hearing, if a department hearing officer suspects a parolee is suffering from a substance use disorder, the hearing officer may order a one (1) month deferment to allow the department’s Division of Substance Abuse Programming to conduct a substance abuse assessment of the parolee. After evaluating the assessment, the hearing officer may recommend to the Parole Board that the parolee be placed into the pilot program instead of being revoked.
    1. Upon receiving a referral from the department’s Division of Substance Abuse Programming pursuant to subsection (3) of this section or from the department’s hearing officers pursuant to subsection (4) of this section, the Parole Board shall notify the inmate’s or parolee’s victims, if any, and provide them an opportunity to submit a written victim impact statement and to testify. The Parole Board shall then evaluate the referred inmate or parolee to determine whether to place him or her in the reentry drug supervision pilot program. (5) (a) Upon receiving a referral from the department’s Division of Substance Abuse Programming pursuant to subsection (3) of this section or from the department’s hearing officers pursuant to subsection (4) of this section, the Parole Board shall notify the inmate’s or parolee’s victims, if any, and provide them an opportunity to submit a written victim impact statement and to testify. The Parole Board shall then evaluate the referred inmate or parolee to determine whether to place him or her in the reentry drug supervision pilot program.
    2. When evaluating whether to place a referred inmate or parolee in the reentry drug supervision pilot program, the Parole Board shall consider the following:
      1. Current criminal charges, if any;
      2. Criminal convictions;
      3. Results of the substance abuse assessment conducted pursuant to subsection (3) or (4) of this section;
      4. Plan of recovery created by the department;
      5. Information regarding the victims, if any;
      6. Trial court’s recommendation to participate in the pilot program, if any;
      7. An inmate’s or parolee’s willingness to participate; and
      8. Other relevant information as identified by the department.
  4. After evaluating the referred inmate or parolee pursuant to subsection (5) of this section, the Parole Board shall determine whether to place an inmate or parolee into the reentry drug supervision pilot program.
      1. Notwithstanding KRS 218A.1412 or 439.340 or any other statute to the contrary, if the Parole Board decides to place an inmate in the reentry drug supervision pilot program, the inmate shall immediately be paroled into the pilot program. The only conditions of parole shall be to: (7) (a) 1. Notwithstanding KRS 218A.1412 or 439.340 or any other statute to the contrary, if the Parole Board decides to place an inmate in the reentry drug supervision pilot program, the inmate shall immediately be paroled into the pilot program. The only conditions of parole shall be to:
        1. Have no contact with victims, if applicable;
        2. Pay restitution, if applicable; and
        3. Adhere to KRS 439.650 to 439.657 and to the reentry team’s requirements and conditions.
      2. Notwithstanding any statute to the contrary, if the Parole Board decides to place a parolee in the reentry drug supervision pilot program, the parolee shall immediately be entered into the pilot program. The only conditions of parole shall be to:
        1. Adhere to any special conditions established by the Parole Board; and
        2. Adhere to KRS 439.650 to 439.657 and to the reentry team’s requirements and conditions.
    1. Participants shall remain on parole until sentence completion unless the reentry team determines to terminate or administratively discharge the participant from the pilot program. If terminated from the pilot program, the reentry team shall refer the participant to the Parole Board for revocation.

History. 2017 ch. 158, § 20, effective June 29, 2017.

439.654. Structure and content of pilot program.

  1. The reentry drug supervision pilot program shall consist of two (2) phases lasting a minimum of twelve (12) months or until sentence completion, whichever occurs first. Both phases shall occur after the participant is paroled.
  2. The first phase is an education phase. For the first phase, the participant shall at a minimum:
    1. Provide at least three (3) random drug screens per week;
    2. Attend as many group therapy sessions per week as determined necessary by a community mental health center. The community mental health center shall conduct the group therapy sessions;
    3. Attend one (1) drug supervision session per week;
    4. Obtain and maintain full-time employment, training, or education approved by the reentry team;
    5. Obtain and maintain housing approved by the reentry team;
    6. Make arrangements for payment of court obligations and any probation and parole fees required by the department;
    7. Indicate an appropriate understanding of recovery principles;
    8. Attend self-help programs, such as a twelve (12) step program; and
    9. Remain drug-free for ninety (90) consecutive days in this phase before consideration for promotion to the second phase.
  3. The second phase is the self-motivation phase. For the second phase, the participant shall at a minimum:
    1. Provide at least two (2) random drug screens per week;
    2. Attend as many group therapy sessions per week as determined necessary by a community mental health center. The community mental health center shall conduct the group therapy sessions;
    3. Attend two (2) drug supervision sessions every two (2) weeks;
    4. Maintain full-time employment, training, or education approved by the reentry team;
    5. Maintain housing approved by the reentry team;
    6. Continue paying court obligations and any probation and parole fees required by the department;
    7. Indicate an appropriate understanding of recovery lifestyle;
    8. Continue to attend self-help programs, such as a twelve (12) step program; and
    9. Remain drug-free for ninety (90) consecutive days in this phase.
  4. Participants may be ordered during any phase to comply with additional requirements, including but not limited to the following:
    1. Employment, school, or home visits by the pilot program staff;
    2. Domestic violence counseling with a certified domestic violence treatment provider, or other types of counseling, as referred by the reentry team;
    3. Curfews as established by the reentry team; and
    4. Medical or mental health referrals and subsequent treatment recommendations.
  5. After successful completion of the second phase, if a participant has not yet completed his or her sentence, the participant shall move from the reentry drug supervision pilot program to regular parole.
  6. If the reentry team terminates the participant from the pilot program, the participant shall be referred to the Parole Board for revocation. If terminated, the reentry team shall determine whether the participant may receive credit toward the remainder of his or her sentence for the time spent in the pilot program.

History. 2017 ch. 158, § 21, effective June 29, 2017.

439.655. Suspension from and resumption of pilot program participation.

If reentry drug supervision pilot program participation as outlined in KRS 439.654 is impracticable due to inpatient treatment or similar circumstances in which the participant is being monitored by an authorized third party, the participant shall be placed in suspended status. Upon release from the authorized third party, the participant shall resume participation in the reentry drug supervision pilot program. During the time in which the participant is suspended, no credit shall be earned toward the completion of the two (2) pilot program phases.

History. 2017 ch. 158, § 22, effective June 29, 2017.

439.656. Effect of failure of participant to complete pilot program through no fault of his or her own.

If a participant cannot complete the pilot program through no fault of his or her own, he or she may be administratively discharged. If the reentry team determines that administrative discharge is appropriate, the department shall determine whether to move the participant to regular parole or to refer the participant to the Parole Board for revocation. If administratively discharged, the participant shall receive credit toward the remainder of his or her sentence for the time spent in the pilot program.

History. 2017 ch. 158, § 23, effective June 29, 2017.

439.657. Voluntary termination from pilot program.

Participants may request voluntary termination from the pilot program. If the reentry team determines the request is knowingly and voluntarily made, the participant shall be referred to the Parole Board for revocation. If voluntarily terminated, the reentry team shall determine whether the participant may receive credit toward the remainder of his or her sentence for the time spent in the pilot program.

History. 2017 ch. 158, § 24, effective June 29, 2017.

Penalties

439.990. Penalties.

  1. Any warden or other officer of any prison or any peace officer who willfully fails or refuses to execute or obey the orders of the department, one (1) of its divisions, or the board, under any provision of KRS 439.250 to 439.560 , shall be fined not less than twenty-five dollars ($25) nor more than two hundred dollars ($200).
  2. Any Commonwealth’s attorney who willfully violates KRS 439.370 shall be fined one hundred dollars ($100).
  3. Any person who willfully violates any of the provisions of KRS 439.500 or 439.510 shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars ($500) or imprisonment not exceeding one (1) year, or both. It shall be the duty of the commissioner to dismiss from office or employment any officer or other employee of the department convicted for violating any of the provisions of KRS 439.500 .

History. Enact. Acts 1956, ch. 101, §§ 33, 34, effective May 18, 1956; 1974, ch. 74, Art. V, § 24(14); 1982, ch. 344, § 59, effective July 15, 1982; 1992, ch. 211, § 107, effective July 14, 1992.

Compiler’s Notes.

A former law compiled hereunder (1142b-3; 3838-9) was repealed by Acts 1956, ch. 101, § 34.

CHAPTER 440 Escapes, Fugitives from Justice, and Extradition

Compiler’s Notes.

Under authority of Acts 1984, ch. 401, § 6, “warden” should be substituted for “superintendent” wherever it appears throughout the chapter.

Escapes

440.010. Warrant for escaped or inadvertently-released convict — Reward.

  1. If a convict escapes from a penitentiary, or is inadvertently released prior to the expiration of the sentence, the warden of that penitentiary shall issue a warrant directed to all peace officers and other persons authorizing and requiring them to capture and convey the convict to the penitentiary.
  2. If a convict who is committed to the custody of the Department of Corrections, but is not actually confined in a facility operated by the Department of Corrections, escapes, or is inadvertently released prior to the expiration of the sentence, the commissioner of the Department of Corrections, or the commissioner’s designee, shall issue a warrant directed to all peace officers and other persons authorizing and requiring them to capture and convey the convict to the penitentiary.
  3. Any person who captures and conveys an escaped convict back to the penitentiary shall be paid a reward of one hundred dollars ($100), and all reasonable expenses, by the state out of appropriations for that purpose. The warden may employ persons to go in pursuit of the convict, and they shall be paid a reasonable compensation for their services.
  4. Any officer who refuses or willfully neglects to obey the warrant of the warden shall be fined not less than ten dollars ($10) nor more than one hundred dollars ($100).

History. 1936; 1996, ch. 334, § 3, effective July 15, 1996.

NOTES TO DECISIONS

1.Reward.

It is immaterial whether the fugitive surrendered to the claimant, or whether claimant captured him by use of force or strategy, provided claimant conveys him back to the penitentiary and delivers him. Mudd v. Woodside, 136 Ky. 296 , 124 S.W. 321, 1910 Ky. LEXIS 483 ( Ky. 1910 ).

2.Warden’s Warrant.

The warden’s warrant issued pursuant to this section is only a notice to appropriate authorities that an individual is an escapee from a penal institution in Kentucky and in and of itself, not a request for a detainer which would be subject to the terms of the interstate agreement on detainers. Commonwealth v. Monroe, 580 S.W.2d 722, 1979 Ky. App. LEXIS 399 (Ky. Ct. App. 1979).

Cited in:

Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ); Norrod v. Bower (1975).

Research References and Practice Aids

Cross-References.

Escape in the first degree, KRS 520.020 .

Escape in the second degree, KRS 520.030 .

440.020. Confinement of captured convict.

An escaped convict, after he is reconfined, shall remain in the penitentiary until the time of his trial for the escape without an examining trial or bail. His acquittal for the offense of escape shall not affect the original sentence.

History. 1937.

440.030. Escape of person from custody — Warrant for capture.

If any person in custody under an execution, on mesne or final process, by any order of a judge or on a charge of crime escapes, any judge, upon complaint and affidavit made of the fact, shall issue as many warrants for his capture directed to all peace officers as he deems necessary. The cause of the person’s original commitment shall be mentioned in the warrant, and it shall command all peace officers to capture the prisoner and forthwith to convey and commit him to the prison of the county from which he escaped, to be safely kept there, without bail, until discharged by due course of law. The warrant, with the proper endorsement thereon, shall be returned by the proper officer to the clerk of the court having jurisdiction of the cause for which the prisoner was in custody.

History. 1600 to 1603: amend. Acts 1976 (Ex. Sess.), ch. 14, § 450, effective January 2, 1978.

NOTES TO DECISIONS

Cited in:

Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Research References and Practice Aids

Cross-References.

Arrests, RCr 2.02 to 2.14.

Guard for prisoner, court may order, KRS 70.610 .

Warrant for escape out of custody, execution on Sunday, KRS 431.095 .

440.040. Liability of officer for permitting escape of prisoner in custody.

Any officer and his sureties shall be liable, in an action upon his official bond, for the use of the parties aggrieved, in any damages resulting from his voluntarily or negligently permitting the escape of a prisoner in custody. No judgment in such action shall be given unless the jury, by its verdict, finds “that the escape was with the consent of the officer, or by his negligence, or that the prisoner might have been retaken if the officer had, in good faith, made proper efforts to do so.”

History. 1604.

440.050. Liability for aiding escape of prisoner.

Any person who aids a prisoner to escape, or knowingly conceals him after he escapes, or in any way hinders or prevents his capture shall be liable to the party aggrieved for any damages sustained.

History. 1605.

NOTES TO DECISIONS

1.Escape from Officer.

Assisting another to escape from an arresting officer is a violation of this section. Johnson v. Commonwealth, 268 Ky. 555 , 105 S.W.2d 641, 1937 Ky. LEXIS 507 ( Ky. 1937 ).

Research References and Practice Aids

Cross-References.

Property stolen in case accused escapes, restitution, KRS 431.210 .

Prosecution or apprehension, hindering, KRS 520.110 to 520.130 .

State institution for insane or feebleminded, aiding escape from, KRS 210.995 .

Fugitives

440.060. Capture and return of fugitive from house of reform.

  1. The officer of a house of reform and any peace officer or citizen may arrest, without warrant, and return to the institution, any child who escapes from a house of reform or home in which an inmate has been placed on parole.
  2. A peace officer shall arrest any child known by him to have escaped from a house of reform, and return him to the institution.

History. 2095b-12, 2095b-15, 2095b-31.

Research References and Practice Aids

Cross-References.

County children’s home, aiding escape from, KRS 201.150 .

Hindering prosecution or apprehension, KRS 520.110 to 520.130 .

Mileage and expense allowance to officer conveying child to institution, KRS 605.080 .

440.070. Fugitive from another state; duty of Governor; determination of identity; delivery; discharge; payment of costs. [Repealed.]

Compiler’s Notes.

This section (1926 to 1929) was repealed by Acts 1960, ch. 135, § 30.

440.080. Arrest and delivery of person guilty of felony in another state. [Repealed.]

Compiler’s Notes.

This section (1930 to 1931) was repealed by Acts 1960, ch. 135, § 30.

440.090. Return to this state of fugitive from justice.

When the Governor of this state makes requisition upon the Governor of another state for a fugitive from justice, the person named in the requisition as the agent of this state shall, unless a different condition is contained in his commission, be allowed as compensation from the State Treasury for his services a mileage allowance at the same rate fixed by regulations adopted by the secretary of the Finance and Administration Cabinet pursuant to KRS 44.060 , plus an additional sum calculated at the rate of five cents ($0.05) per mile for the distance he travels to and from the jail of the county designated in the proclamation to the place where the fugitive is arrested, and any other necessary expenses he pays in reclaiming and returning the fugitive. If, in attempting to reclaim the fugitive, the agent is acting within the course and scope of his employment, the amount due shall be paid over to the agent’s employer instead of the agent. When a fugitive is to be returned to this state from a location out of state which is in excess of five hundred (500) miles from the jail to which he is to be returned, commercial air transportation may be utilized in lieu of ground transportation, unless the agent undertaking the transportation decides to utilize ground transportation. Payment for air transportation shall be in lieu of the mileage payment for ground transportation only for that portion of the journey for which air transportation is used. Ground transportation and other expenses shall be paid as authorized herein. If the agent is not given possession of the fugitive for reasons beyond the agent’s control, he, or his employer, shall nevertheless be allowed the compensation prescribed by this section. Upon the return of the fugitive to the county in which the jail named in the proclamation is located, the person having him in charge shall go before a judge, who shall issue a mittimus to the jailer to receive the prisoner and keep him until he is discharged.

History. 1934: amend. Acts 1960, ch. 16, § 1; 1976, ch. 53, § 1; 1976 (Ex. Sess.), ch. 14, § 451, effective January 2, 1978; 1990, ch. 228, § 1, effective July 13, 1990; 2000, ch. 30, § 1, effective July 14, 2000.

NOTES TO DECISIONS

1.Venue in False Claim Actions.

Where Warren County deputy sheriff filled out or caused to be filled out false claims for mileage and expenses in the transportation of prisoners under KRS 64.070 and this section which were filed with and paid by the Department of Finance in Franklin County, venue was proper in either Warren County where expense claims were filled out, mailed, checks received, cashed and funds diverted to persons other than payee, or in Franklin County where the claims were received, relied upon, processed and checks issued and mailed, since under KRS 452.550 venue in either county is proper where offense occurred in more than one county; thus, omission in jury instructions of reference to Warren County is not fatal. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

Cited in:

Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Opinions of Attorney General.

It was proper for the department of finance (now Finance and Administration Cabinet) to pay the expenses of both a state trooper and his matron assistant when they were commissioned to escort a dangerous female fugitive back to Kentucky. OAG 60-1096 .

The decision of whether under the circumstances of a particular case more than one agent is required to be named rests with the governor in the exercise of his reasonable discretion. OAG 63-62 .

The governor has authority to name more than one person in his requisition and to commission such parties as agents of this state when it is made to appear that the circumstances of the case reasonably require the naming of more than one agent. OAG 63-62 .

The papers constituting the application for requisition should set out the reasons for the appointment of an extra agent. OAG 63-62 .

Under KRS 440.380(1) a person appointed by order of the county judge as agent of this state to return a fugitive upon waiver of extradition is not entitled to reimbursement of expenses as provided in this section unless the order of appointment was entered prior to the departure of the agent from this state. OAG 63-108 .

In the case of the transportation of a dangerous fugitive being returned to Kentucky by one agent, the governor could issue his commission to a second agent without processing the second agent’s papers as a separate application for requisition and without issuing a second requisition upon the governor of the state detaining the fugitive. OAG 63-296 .

Where the commissioned agent could have learned prior to making a trip to return a person being extradited that the person was not at that time available for extradition, he was not entitled to reimbursement of his travel expenses. OAG 66-414 .

This section does not authorize the reimbursement of a county of another state for medical expenses deemed necessary for a fugitive while he is being held for Kentucky authorities after having waived jurisdiction. OAG 74-669 .

Where under KRS 440.380 a state’s agent for the return of a fugitive is appointed and the final return of the fugitive to another state has been made by that state a condition precedent to the release of the fugitive to the Kentucky authorities, the state’s agent may recover his mileage and other necessary expenses for the two round trips involved in view of KRS 440.200 and this section. OAG 75-373 .

The Commonwealth of Kentucky must compensate those agents appointed by the Governor to transfer a fugitive from the jurisdiction of a foreign country back to Kentucky for trial for all expenses incurred. OAG 76-104 .

Agents appointed by the Governor to transfer fugitives from the jurisdiction of a foreign country to Kentucky for trial are not only agents of the Commonwealth of Kentucky but are also agents of the United States government whose authority they exercise while in the foreign country. OAG 76-104 .

Under 18 USCS § 3195, Kentucky is required to reimburse Pennsylvania for “all costs and expenses” incurred by that state in complying with a Kentucky extradition request, but under this section the state treasury is only required to reimburse the agent for the “necessary expenses” he pays in claiming and returning the fugitive, and it may be that some portion of the bill for housing was not a “necessary expense,” therefore if Jefferson County or the agent is found to have unduly delayed in taking custody of the prisoner after being notified that he was available, that portion of the bill attributable to the delay may not be a “necessary expense,” and the agent not entitled to reimbursement. OAG 79-432 .

Where Jefferson County initiated extradition from Pennsylvania, and that state submitted an invoice, for over $2,200 for housing the prisoner pending extradition, to Kentucky, the Commonwealth is the proper recipient of the invoice and must pay the bill. OAG 79-432 .

Where a fugitive being extradited from Florida challenged his extradition in a habeas corpus proceeding in that state thereby requiring a county to send an identification witness, accompanied by her custodian and the sheriff, to Florida to testify in the proceeding, the county may recover from the state under this section for the actual costs of transportation, meals and lodging expenses for the witness and her custodian; reimbursement for the costs of the sheriff depends on his function on the trip; if he went merely as a guard for the witness, his costs would be recoverable; if, however, he went as to the agent to transport the fugitive back to the county, he would receive his mileage and the additional sum mentioned in this section, but not the costs of his meals and lodging. OAG 80-243 .

Although this section was historically designed to emphasize land travel, the statute is so broad that when read in its entirety it covers any kind of transportation authorized under current state travel regulations. OAG 80-314 .

Where an extradition agent’s travel is properly by plane under the state travel regu- lation, the agent should be reimbursed for the cost of coach/tourist class airline travel, including the similar air travel cost for the prisoner, but such reimbursement is limited to the actual cost of the airfare or air flight tickets purchased, and thus the air travel cost is not based upon a mileage factor. OAG 80-314 .

An extradition agent’s meals and lodging are restricted to that generally allowed by department of finance travel regulations. OAG 80-387 (withdrawing OAG 67-379 ).

The state agent in extradition is entitled to 18 cents per mile, pursuant to KRS 44.060 , plus five ($0.05) cents per mile; in addition, he is entitled to any other necessary expenses he pays in reclaiming and returning the fugitive, including the costs of food and lodging for himself and for the prisoner. OAG 80-387 (withdrawing OAG 67-379 ).

Where two (2) extradition agents travel together the second agent (one who rides in vehicle owned by first agent) is not entitled to the mileage allowance. OAG 80-387 (with- drawing OAG 67-379 ).

This fiscal court does not have to approve the deputies’ reimbursement for their mileage and other expenses under this section or their trip expenditures. OAG 81-42 .

KRS 44.020 would not apply to this section, even though the return of a fugitive or extradition is effected through the Governor of Kentucky, since the fugitive is brought back and placed in the jail of the county designated in the proclamation; thus, extradition is ac- complished outside the frame of litigation. OAG 81-336 .

Where fugitive was returned from Texas to Kentucky without making a rendition demand upon the Governor of Texas because the fugitive waived formal extradition proceedings, the sheriff’s department is not entitled to reimbursement for expenses. OAG 90-98 .

Research References and Practice Aids

Cross-References.

Mileage, computation of, KRS 44.040 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

440.100. Reward for apprehension of fugitive from justice.

In aggravated cases of murder and other felonies against the person when the accused flees from justice, the Governor, on petition of the Circuit or District Judge of the county, may issue a proclamation offering a reward of not more than five hundred dollars ($500) for the apprehension of the accused. This reward shall be paid upon production of a receipt from the officer named in the Governor’s proclamation, showing delivery of the fugitive to him, approved and certified by the Circuit Court of the county of that officer’s residence.

History. 344, 1932: amend. Acts 1976 (Ex. Sess.), ch. 14, § 452, effective January 2, 1978.

NOTES TO DECISIONS

1.Arresting Fugitive.

When delivery was made after the reward was offered it is immaterial that claimant took the fugitive into custody before the reward was offered, provided he acted in good faith. Coffey v. Commonwealth, 37 S.W. 575, 18 Ky. L. Rptr. 646 (1896).

It is not necessary that claimant personally and alone make the arrest, for the essential fact is the causing of the arrest. Stone v. Wickliffe, 106 Ky. 252 , 50 S.W. 44, 20 Ky. L. Rptr. 1806 , 1899 Ky. LEXIS 29 ( Ky. 1899 ).

2.Delivery of Prisoner.

Recital in jailer’s receipt that another person was with claimant at time of delivery does not contradict averment that claimant delivered the prisoner. Stone v. Wickliffe, 106 Ky. 252 , 50 S.W. 44, 20 Ky. L. Rptr. 1806 , 1899 Ky. LEXIS 29 ( Ky. 1899 ).

One who arrests the fugitive and delivers him to a jail other than the one designated in the proclamation is entitled to the reward as against one who delivered the prisoner to the jail designated. Collier v. Green, 205 Ky. 361 , 265 S.W. 812, 1924 Ky. LEXIS 111 ( Ky. 1924 ).

3.—Officer’s Receipt.

Motion in Circuit Court for allowance of the reward is equivalent to a motion for an order approving and certifying the officer’s receipt. Coffey v. Commonwealth, 37 S.W. 575, 18 Ky. L. Rptr. 646 (1896).

The reward can be paid only upon production of the officer’s receipt, approved and certified by the Circuit Court of that officer’s residence. Coffey v. Commonwealth, 37 S.W. 575, 18 Ky. L. Rptr. 646 (1896).

Fact that the claimant, who attempted to take the prisoner from plaintiff’s custody, accompanied plaintiff and his prisoner to the jail and objected to approval and certification of plaintiff’s receipt did not justify court in dismissing the proceedings. Johnson v. Commonwealth, 76 S.W. 832, 25 Ky. L. Rptr. 986 (1903).

4.—Death of Prisoner.

When claimant has apprehended the fugitive who, before he can be delivered, dies of wounds necessarily inflicted during the arrest, the claimant has substantially complied with an offer of reward for the arrest and delivery of the fugitive. Mosley v. Stone, 108 Ky. 492 , 56 S.W. 965, 22 Ky. L. Rptr. 173 , 1900 Ky. LEXIS 70 ( Ky. 1900 ).

5.Conviction.

A proclamation offering a reward for the apprehension and conviction of the guilty party refers to final conviction. Stone v. Wickliffe, 106 Ky. 252 , 50 S.W. 44, 20 Ky. L. Rptr. 1806 , 1899 Ky. LEXIS 29 ( Ky. 1899 ).

6.Officers.

An officer under the duty of making the arrest cannot claim the reward. Riley v. Grace, 33 S.W. 207, 17 Ky. L. Rptr. 1007 (1895). See Smitha v. Gentry, 45 S.W. 515, 20 Ky. L. Rptr. 171 , 1898 Ky. LEXIS 287 (Ky. Ct. App. 1898); Heather v. Thompson, 78 S.W. 194, 25 Ky. L. Rptr. 1554 (1904).

A public officer making the arrest while acting outside the line of his official duties is entitled to the reward. Collier v. Green, 205 Ky. 361 , 265 S.W. 812, 1924 Ky. LEXIS 111 ( Ky. 1924 ).

Research References and Practice Aids

Cross-References.

Fees of peace officers, KRS 64.060 .

440.110. Proclamation offering reward — Publication.

  1. Whenever the Governor issues a proclamation offering a reward for a fugitive from justice or anyone charged with crime, he shall designate in his proclamation the jail to which the prisoner shall be delivered. It need not be the jail of the county where the offense was committed.
  2. The Governor may order the proclamation published in a newspaper if he deems it proper under the circumstances and to the interest of the state. If he orders it published, he shall designate the paper or papers in which the publication shall be made and the number of times it shall be inserted. The account for such publication, with the approval of the Governor endorsed on it, shall be paid out of the State Treasury.

History. 1933.

NOTES TO DECISIONS

1.Governor’s Authority.

The designation of the jail to which the prisoner should be delivered, how and in what paper or papers the offer should be published, being matters of discretion, can be performed only by the Governor himself, and his secretary cannot perform such duties in his absence. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

The issuance of a reward and the amount of same being matters of discretion can be performed only by the Governor himself, and his secretary has no authority to hear the petition and issue an offer on a blank form theretofore signed by the Governor. Hager v. Sidebottom, 130 Ky. 687 , 113 S.W. 870, 1908 Ky. LEXIS 310 ( Ky. 1908 ).

440.120. Reward is payment in full.

Anyone claiming a reward for the apprehension of a fugitive from justice shall be paid the amount of the reward as full compensation for all services and expenses in arresting and returning the fugitive.

History. 1935.

440.130. Deputizing of agency head of another state for return of escapee or probation or parole violator.

  1. The secretary of corrections may deputize the head of an agency of another state which is charged by that state with enforcement of penal laws to act as an agent of this state in effecting the return to this state of any person who has violated the conditions of his probation or parole or who has escaped from a penal institution of this state. In all matters relating to the return of such person to this state, such agent shall have the powers afforded a police officer of this state.
  2. Any deputization pursuant to this section shall be in writing. Any person authorized to act as an agent of this state under the terms of this section shall carry on his person such written evidence of his authorization, and shall display the same upon demand.

History. Enact. Acts 1954, ch. 239, §§ 1, 2; 1986, ch. 331, § 54, effective July 15, 1986.

Uniform Criminal Extradition Act

440.150. Citation of KRS 440.150 to 440.420.

KRS 440.150 to 440.420 may be cited as the Uniform Criminal Extradition Act.

History. Enact. Acts 1960, ch. 135, § 1, effective June 16, 1960.

NOTES TO DECISIONS

1.Effect of Temporary Transfer on Jurisdiction.

Although the defendant was denied his right to petition the Governor of Kentucky to disapprove Ohio’s request for temporary custody under the Interstate Agreement on Detainers (I.A.D. KRS 440.450 ), and he was not allowed the opportunity to file a writ of habeas corpus under the Uniform Criminal Extradition Act, defendant never served a sentence in Ohio but was immediately returned to this state as the I.A.D. required; therefore, defendant’s transfer from Kentucky to Ohio to stand trial for rape and abduction charges there was not violative of the Uniform Criminal Extradition Act and the I.A.D. and Kentucky had jurisdiction over him to carry out his execution. Gall v. Commonwealth, 702 S.W.2d 37, 1985 Ky. LEXIS 286 ( Ky. 1985 ), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724, 1986 U.S. LEXIS 2668 (U.S. 1986).

Cited in:

Norton v. Parke, 892 F.2d 476, 1989 U.S. App. LEXIS 19331 (6th Cir. 1989), cert. denied, 494 U.S. 1060, 110 S. Ct. 1533, 108 L. Ed. 2d 772, 1990 U.S. LEXIS 1596, 58 U.S.L.W. 3614 (1990); Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Opinions of Attorney General.

There is no provision in the Uniform Criminal Extradition Act authorizing bail on the Governor’s rendition warrant. OAG 77-351 .

Where Jefferson County initiated extradition from Pennsylvania, and that state submitted an invoice, for over $2,200 for housing the prisoner pending extradition, to Kentucky, the Commonwealth is the proper recipient of the invoice and must pay the bill. OAG 79-432 .

Research References and Practice Aids

Cross-References.

Federal penitentiary, extradition from to face state felony charge, KRS 455.140 .

Mental patient, escaping from sister state, KRS 210.340 .

Uniform Interstate Family Support Act, 407.5101 to 407.5902 .

Comparative Legislation.

Uniform Criminal Extradition Act:

Ark Stat. 1947, §§ 16-94-201 – 16-94-331.

Ill Rev. Stat. 1971, ch. 60, §§ 18-49.

Ind Burns’ Code Ed., IC 35-33-10-3.

Mo Vernon’s Stat., §§ 548.011-548.300.

Ohio Baldwins Rev. Code, §§ 2963.01-2963.29.

Tenn Code Ann., §§ 40-9-101 – 40-9-130.

Va Code 1950, §§ 19.2-85 – 19.2-118.

W. Va Code, §§ 5-1-7 – 5-1-13.

440.160. Definitions for KRS 440.150 to 440.420.

Where appearing in KRS 440.150 to 440.420 , the term “Governor” includes any person performing the functions of Governor by authority of the law of this state. The term “executive authority” includes the Governor, and any person performing the functions of Governor in a state other than this state, and the term “state,” referring to a state other than this state, includes any other state or territory, organized or unorganized, of the United States of America.

History. Enact. Acts 1960, ch. 135, § 2, effective June 16, 1960.

NOTES TO DECISIONS

1.Executive Authority.

Demand by prosecutor of the jurisdiction of the state of Indiana for the temporary custody of defendant satisfied the “executive authority” requirement of KRS 440.330 , and, along with the signature of a judge, complied with the requirements of the Uniform Criminal Extradition Act and the Interstate Agreement on Detainers; therefore, Governor’s warrant was not necessary. Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

440.170. Duty of Governor.

Subject to the provisions of KRS 440.150 to 440.420 , the provisions of the Constitution of the United States controlling, and any and all Acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.

History. Enact. Acts 1960, ch. 135, § 3, effective June 16, 1960.

NOTES TO DECISIONS

1.Presumptions upon Issuance of Warrant.

In a habeas corpus proceeding in an extradition proceeding, it is presumed that the Governor performed his duty and was justified in issuing his warrant, and the scope of the inquiry is primarily limited to a determination of the sufficiency of the papers and of the identity of the prisoner. Ex parte Grabel, 248 S.W.2d 343, 1952 Ky. LEXIS 731 ( Ky. 1952 ) (decided under prior law).

2.Fugitive from Justice.

Escaped convict is a fugitive from justice, and properly subject to extradition. Gray v. Connors, 285 Ky. 229 , 147 S.W.2d 384, 1941 Ky. LEXIS 361 ( Ky. 1941 ) (decided under prior law).

Opinions of Attorney General.

Under this section a misdemeanant is subject to extradition. OAG 70-194 .

440.180. Conditions of demand for extradition.

No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under KRS 440.210 , that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.

History. Enact. Acts 1960, ch. 135, § 4, effective June 16, 1960.

NOTES TO DECISIONS

1.Warrant of Arrest.

The requirement that the copy of the indictment, affidavit, or information accompanying the demand for extradition must substantially charge the person demanded with having committed a crime does not apply to the warrant of arrest, which need only state the fact that such an indictment, information or affidavit has been received and describe in general terms of identification the offense charged. Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

Opinions of Attorney General.

An affidavit charging an offense in extradition papers was made before a magistrate if it appears that under the statutory law of the demanding state the person before whom the affidavit was made has power to take complaints and issue warrants of arrest. OAG 63-244 .

Extradition papers from Ohio were sufficient under the statute although the affidavit was sworn to before a clerk of a municipal court, since such official may be classified as a magistrate for purposes of extradition. OAG 63-244 .

Commonwealth Attorney was correct with regard to procedure concerning issuance of a fugitive warrant pursuant to KRS 440.270 , whereby pending completion of extradition documents, the prisoner is held in the local jail. However, the best procedure is to have the demanding state submit its extradition documents to Kentucky before the release date and serve the Kentucky Governor’s Warrant on the fugitive at the time he is released from federal prison. Utilizing this method the necessity of a judicial fugitive warrant is avoided and the fugitive is held in the local jail on an executive warrant. OAG 91-46 .

440.190. Investigation by Attorney General.

When a demand shall be made upon the Governor of this state by the executive authority of another state for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any other officer of this state to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered.

History. Enact. Acts 1960, ch. 135, § 5, effective June 16, 1960.

440.200. Demand by this state — Agreement with other state — Demand on involuntary departure.

  1. When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.
  2. The Governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in KRS 440.180 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.

History. Enact. Acts 1960, ch. 135, § 6, effective June 16, 1960.

NOTES TO DECISIONS

Analysis

1.Waiver of Charges.

Where a person is arrested in another jurisdiction for conduct in the other jurisdiction and the other jurisdiction extradites him to Kentucky, the Kentucky courts will not determine whether the other jurisdiction, by so extraditing him, forfeited its rights to enforce its charges against him. Brewster v. Luby, 380 S.W.2d 261, 1964 Ky. LEXIS 305 ( Ky. 1964 ).

Where prisoner who was free on bond in murder case pending in Tennessee was extradited to Kentucky, tried and convicted of forgery and later released after serving 18 months of his sentence and thereupon arrested as a fugitive and held for Tennessee authorities, the Tennessee rather than the Kentucky court should determine whether Tennessee waived the charges against him by extraditing him to Kentucky. Wright v. Renaker, 387 S.W.2d 588, 1965 Ky. LEXIS 474 ( Ky. 1965 ).

3.Discretion of Governor.

The power to extradite was lodged in the Governor, his decision for or against extradition was final and not subject to judicial review and he was not required by law to make demand upon the executive authority of another state for arrest and return of a fugitive from justice. Burd v. Commonwealth, 335 S.W.2d 945, 1960 Ky. LEXIS 305 ( Ky. 1960 ) (decided under prior law).

4.Forfeiture of Bond.

The failure of the Commonwealth to seek extradition of a principal to appear for trial did not relieve the surety from liability under the bond for failure to produce the principal. Burd v. Commonwealth, 335 S.W.2d 945, 1960 Ky. LEXIS 305 ( Ky. 1960 ) (decided under prior law).

Notes to Unpublished Decisions

1.Speedy Trial.

Unpublished decision: Given that defendant did not show that the Commonwealth of Kentucky ever filed a detainer with Oklahoma authorities; instead, the Commonwealth obtained custody of defendant by extraditing him pursuant to an executive agreement authorized by the Uniform Criminal Extradition Act, KRS 440.200(1); the 120-day clock of the Interstate Agreement on Detainers, KRS 440.450 , was inapplicable to defendant’s indictment; thus, defendant was not denied his right to a speedy trial. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

A person who has been paroled and permitted by the parole board to go to another state to reside and who is thereafter indicted in Kentucky for another crime may be extradited under this section, even though he is in the other state pursuant to permission from the Kentucky state parole board and his parole is still in effect. OAG 68-40 .

Where under KRS 440.380 a state’s agent for the return of a fugitive is appointed and the final return of the fugitive to another state is made by that state a condition precedent to the release of the fugitive to the Kentucky authorities, the state’s agent may recover his mileage and other necessary expenses for the two (2) round trips involved in view of KRS 440.090 and this section. OAG 75-373 .

This section was amended, but not repealed by implication, by the Interstate Agreement of Detainers Act of 1974 (KRS 440.450 to 440.510 ) to the extent that this act relates to persons imprisoned in a foreign state that is a party to the interstate agreement but this section applies to prisoners in any state not a party to the agreement. OAG 75-373 .

Where temporary custody of a fugitive was obtained by virtue of an executive agreement which limited the purpose of the temporary custody solely to the prosecution of charges pending before a Kentucky Circuit Court and which provided for the return of the fugitive to Oklahoma following either his acquittal or conviction in the Kentucky court, the commitment of the fugitive to the Kentucky Bureau of Corrections (now Department of Corrections) was in violation of this section and the executive agreement, and though the time erroneously spent in the Kentucky correctional facility could be credited against the Oklahoma sentence, the time could not be counted toward the completion of the Kentucky sentence. OAG 76-666 .

440.210. Demand when act in this state results in crime in other state.

The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in KRS 440.180 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of KRS 440.150 to 440.420 not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

History. Enact. Acts 1960, ch. 135, § 7, effective June 16, 1960.

NOTES TO DECISIONS

1.Presence at Time of Crime.

A father who allegedly defaulted on an Indiana decree requiring him to pay for the support of his children in Indiana and was charged with child abandonment in Indiana could be extradited to Indiana under this section although he was not present in Indiana at the time of the alleged default. Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

Opinions of Attorney General.

Extradition papers, charging nonsupport of children, were sufficient even though they appeared to show the fugitive was not physically present in the state seeking to prosecute at the time of commission of the offense. OAG 63-77 .

A person charged in this state with the offense of drawing and delivering cold checks may be extradited from another state although the acts of the defendant were performed in the other state and he was not present in Kentucky. OAG 65-482 .

440.220. Warrant of arrest by Governor.

If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.

History. Enact. Acts 1960, ch. 135, § 8, effective June 16, 1960.

NOTES TO DECISIONS

1.Copy of Indictment.

The requirement that the copy of the indictment, affidavit, or information accompanying the demand for extradition must substantially charge the person demanded with having committed a crime does not apply to the warrant of arrest, which need only state the fact that such an indictment, information or affidavit has been received and describe in general terms of identification the offense charged. Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

2.Name of Accuser.

Warrant of arrest for extradition need not state the name of the accuser. Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

3.Executive Authority.

Demand by prosecutor of the jurisdiction of the state of Indiana for the temporary custody of defendant satisfied the “executive authority” requirement of KRS 440.330 , and, along with the signature of a judge, complied with the requirements of the Uniform Criminal Extradition Act and the Interstate Agreement on Detainers; therefore, Governor’s warrant was not necessary. Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

4.Presumptions.

The presumption is that when the Governor of this state issues a warrant for a fugitive, he has before him a demand from the Governor of the other state and a duly authenticated copy of the indictment. Oakley v. Franks, 289 Ky. 605 , 159 S.W.2d 415, 1942 Ky. LEXIS 601 ( Ky. 1942 ) (decided under prior law).

440.230. Execution of warrant.

Such warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of KRS 440.150 to 440.420 , to the duly authorized agent of the demanding state.

History. Enact. Acts 1960, ch. 135, § 9, effective June 16, 1960.

NOTES TO DECISIONS

1.Authority.

The warrant issued by the Governor of this state was full and ample authority for the sheriff to hold the alleged fugitive and surrender him to the duly designated agents of the state of Tennessee. Oakley v. Franks, 289 Ky. 605 , 159 S.W.2d 415, 1942 Ky. LEXIS 601 ( Ky. 1942 ) (decided under prior law).

440.240. Assistance in making arrest.

Every such peace officer or other person empowered to make the arrest, shall have the same authority, in arresting the accused, to command assistance therein, as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.

History. Enact. Acts 1960, ch. 135, § 10, effective June 16, 1960.

440.250. Procedure upon arrest.

No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a Circuit Court or District Court in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting attorney of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.

History. Enact. Acts 1960, ch. 135, § 11, effective June 16, 1960; 1976 (Ex. Sess.), ch. 14, § 453, effective January 2, 1978.

NOTES TO DECISIONS

1.Jurisdiction of Circuit Court.

Where a rendition warrant issued by Governor of Kentucky was served on accused and statute required that the rendition warrant be returned to Circuit Court for identification of prisoner, Circuit Court had jurisdiction of accused’s petition for writ of habeas corpus, although the accused had been first arrested under a fugitive warrant issued from a Kentucky city police court. Ex parte Noel, 338 S.W.2d 903, 1960 Ky. LEXIS 421 ( Ky. 1960 ) (decided under prior law).

2.Parolees.

Article III of the Interstate Parole Compact (KRS 439.560 , now repealed) expressly waives extradition procedures insofar as parolees are concerned. Shull v. Wingo, 446 S.W.2d 645, 1969 Ky. LEXIS 135 ( Ky. 1969 ).

Where an Ohio parolee was tried and convicted in Kentucky for a crime committed in Kentucky but was returned to Ohio for parole violation, there was no waiver or forfeiture of Kentucky’s right to compel the defendant to serve his sentence. Shull v. Wingo, 446 S.W.2d 645, 1969 Ky. LEXIS 135 ( Ky. 1969 ).

3.Pretransfer Hearing.

Inasmuch as defendant had a pre-existing right by way of the Uniform Criminal Extradition Act for a pretransfer hearing, it was concluded that that right remained under the Interstate Agreement on Detainers, Article IV, § 4 of KRS 440.450 . Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

Cited in:

Kellems v. Buchignani, 518 S.W.2d 788, 1974 Ky. LEXIS 18 ( Ky. 1974 ).

Opinions of Attorney General.

In extradition proceedings under the statute it is not necessary to produce a witness who will identify the person arrested under a rendition warrant issued by the Governor as the person wanted in the demanding state. OAG 62-205 .

440.260. Confinement of prisoner en route — Duty of jailer — Evidence of extradition.

  1. The officer or persons executing the Governor’s warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.
  2. The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such a prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping; provided, however, that such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that he is actually transporting such prisoner to the demanding state after a requisition by the executive authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.

History. Enact. Acts 1960, ch. 135, § 13, effective June 16, 1960.

440.270. Person charged with crime in other state may be arrested in this state — Procedure — Warrant required.

  1. Whenever any person within this state shall be charged on the oath of any credible person before any judge of this state with the commission of any crime in any other state and, except in cases arising under KRS 440.210 , with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole, or whenever complaint shall have been made before any judge in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under KRS 440.210 , has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his bail, probation or parole and is believed to be in this state, the judge shall issue a warrant directed to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the Circuit or District Judge of the county in which he was arrested who may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit, and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
  2. No bail bondsman or his agent shall arrest, detain, imprison, or remove from the state any person for having broken the terms of his bail unless a warrant for that person’s arrest has been issued as provided for in subsection (1) of this section.
  3. Any violation of subsection (2) of this section shall be deemed as a Class D felony and punishable thereas.

History. Enact. Acts 1960, ch. 135, § 14, effective June 16, 1960; 1976, ch. 95, § 1; 1976 (Ex. Sess.), ch. 14, § 454, effective January 2, 1978.

NOTES TO DECISIONS

1.Constitutionality.

KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, did not refuse to give full faith and credit to another state’s arrest warrant, as it only prescribed the procedures which had to be employed, under KRS 440.270(1), to apprehend a fugitive from another state. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, was not unconstitutional under the commerce clause of the United States Constitution, art. I, § 8, cl. 3, because it only remotely regulated the interstate bail bonding business. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, was not an unconstitutional violation of equal protection because private parties were allowed to arrest a felony fugitive without a warrant as the statute rationally addressed the evil of “vigilante” arrests by bondsmen and their agents, and arrests by private parties were so unlikely as to not require protection. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, this was not an unconstitutional violation of due process for depriving the bondsman of “fair warning” of an unforeseeable statutory construction or change in the common law because the court did not change the common law, which had been statutorily abrogated, and it did not change an interpretation of the statute because the statute was previously unconstrued. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, he could not claim that an arrest warrant for the fugitive from an Ohio court justified his actions because the warrant did not order him to apprehend the fugitive. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, his actions were not justified by a United States Supreme Court decision which purportedly allowed him to apprehend the fugitive without a warrant because that decision was contrary to Kentucky law, did not state a constitutional principle, and did not interpret a federal statute which preempted Kentucky law. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, he was not entitled to a jury instruction that he believed his actions were legally authorized but for a court’s lack of jurisdiction or a defect in legal process, under KRS 503.040(2)(a), because the warrant on which he relied was valid. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, the statute did not state a required mental state, but, applying KRS 501.040 , a violation required, at a minimum, that defendant recklessly arrested, detained, imprisoned or removed the victim with knowledge that a warrant had not been issued by a Kentucky judicial officer. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, his conduct was not excused as a mistake of law, under KRS 501.070(1)(a), because there was no evidence that the culpable mental states of recklessly arresting the fugitive or knowledge that no warrant for the fugitive had been issued by a Kentucky judicial officer was negated by his claimed mistake of law that his actions were legally authorized. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, he was entitled to a jury instruction on mistake of law under KRS 501.070(3)(b) because he testified that he was unaware of the existence of KRS 440.270(2) and that he “actually believed” his actions were authorized by a United States Supreme Court decision, and he was entitled to apprise the jury of the decision on which he relied. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Opinions of Attorney General.

A person arrested upon a fugitive warrant charging him with the offense of nonsupport committed in the state of Ohio may, under KRS 440.300 , be admitted to bail and the court may set a time in the future for a hearing upon the fugitive warrant pursuant to KRS 440.290 . OAG 63-63 .

If extradition papers are received while the fugitive is awaiting a hearing and a rendition warrant is issued by the Governor of Kentucky, the Governor’s warrant of arrest will supplant the proceedings under the fugitive warrant. OAG 63-63 .

When out-of-state parolees are thought to have violated the terms of their parole or probation and the authorities of the sending state desire their arrest and return, they may be arrested and detained pending arrival of officers of the demanding state by a fugitive warrant issued under this section. OAG 63-742 .

Commonwealth Attorney was correct with regard to procedure concerning issuance of a fugitive warrant pursuant to this section, whereby pending completion of extradition documents, the prisoner is held in the local jail. However, the best procedure is to have the demanding state submit its extradition documents to Kentucky before the release date and serve the Kentucky Governor’s Warrant on the fugitive at the time he is released from federal prison. Utilizing this method, the necessity of a judicial fugitive warrant is avoided and the fugitive is held in the local jail on an executive warrant. OAG 91-46 .

The phrase “fled from justice” is a term of art used throughout the laws on extradition and refers to an individual charged with or convicted of a crime in one state and for whatever reason is found in another state. OAG 91-46 .

Research References and Practice Aids

Cross-References.

Classification, designation and disposition of offenses, KRS 532.010 to 532.120 .

440.280. Arrest may be made without warrant — Conditions — Procedure.

The arrest of a person may be lawfully made also by any peace officer or a private person, without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one (1) year, but when so arrested the accused must be taken before a judge with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in the preceding section; and thereafter his answer shall be heard as if he had been arrested on a warrant.

History. Enact. Acts 1960, ch. 135, § 15, effective June 16, 1960.

NOTES TO DECISIONS

1.In General.

A defendant was not denied the right to a defense when, under this section, the judge admonished the jury to regard as “legally irrelevant” the defendant’s statement that he believed arresting law officers needed a warrant to arrest him. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 142 (Ky. Nov. 20, 1997), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

Cited in:

Wright v. Renaker, 387 S.W.2d 588, 1965 Ky. LEXIS 474 ( Ky. 1965 ).

440.290. Commitment in jail pending Governor’s warrant issued on requisition.

If from the examination before the judge it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under KRS 440.210 , that he has fled from justice, the judge must, by a warrant reciting the accusation, commit him to the county jail for such a time not exceeding thirty (30) days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in KRS 440.300 , or until he shall be legally discharged.

History. Enact. Acts 1960, ch. 135, § 16, effective June 16, 1960.

NOTES TO DECISIONS

1.Time in Custody.

The 90-day time period found in KRS 440.290 and 440.310 , limits the period of time during which an alleged fugitive may be held in custody solely for the purpose of awaiting a governor’s warrant from the state seeking extradition; it is not required that a governor’s warrant issue during that time. Pappas v. Gilpin, 78 S.W.3d 753, 2002 Ky. App. LEXIS 585 (Ky. Ct. App. 2002).

Opinions of Attorney General.

A person arrested upon a fugitive warrant charging him with the offense of nonsupport committed in the state of Ohio may, under KRS 440.300 , be admitted to bail and the court may set a time in the future for a hearing upon the fugitive warrant pursuant to this section. OAG 63-63 .

If extradition papers are received while the fugitive is awaiting a hearing and a rendition warrant is issued by the Governor of the Commonwealth, the Governor’s warrant of arrest will supplant the proceedings under the fugitive warrant. OAG 63-63 .

The state is not liable to pay the fees or expenses of boarding prisoners held under fugitive warrants in county jails pursuant to interstate extradition. OAG 74-807 .

440.300. Bail permitted — Conditions.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor of this state.

History. Enact. Acts 1960, ch. 135, § 17, effective June 16, 1960.

NOTES TO DECISIONS

1.Time Available.

The judge may adjourn the hearing to a different time, and pending the hearing may allow bail. Commonwealth ex rel. Jewell v. Roberts, 212 Ky. 351 , 279 S.W. 330, 1926 Ky. LEXIS 143 ( Ky. 1926 ) (decided under prior law).

2.Federal Act.

The rule that in extradition proceedings under the federal act, the defendant is not entitled to bail in the state of his arrest does not apply to preliminary proceedings under the state law. Commonwealth ex rel. Jewell v. Roberts, 212 Ky. 351 , 279 S.W. 330, 1926 Ky. LEXIS 143 ( Ky. 1926 ) (decided under prior law).

440.310. Failure to arrest under warrant of Governor — Discharge — Recommitment.

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, the judge may discharge him or may recommit him for a further period not to exceed sixty (60) days, or may again take bail for his appearance and surrender, as provided in KRS 440.300 , but within a period not to exceed sixty (60) days after the date of such new bond.

History. Enact. Acts 1960, ch. 135, § 18, effective June 16, 1960.

NOTES TO DECISIONS

1.Time in Custody.

The 90-day time period found in KRS 440.290 and 440.310 , limits the period of time during which an alleged fugitive may be held in custody solely for the purpose of awaiting a governor’s warrant from the state seeking extradition; it is not required that a governor’s warrant issue during that time. Pappas v. Gilpin, 78 S.W.3d 753, 2002 Ky. App. LEXIS 585 (Ky. Ct. App. 2002).

Opinions of Attorney General.

A person arrested upon a fugitive warrant charging him with the offense of nonsupport committed in the state of Ohio may, under KRS 440.300 , be admitted to bail and the court may set a time in the future for a hearing upon the fugitive warrant pursuant to KRS 440.290 . OAG 63-63 .

If extradition papers are received while the fugitive is awaiting a hearing and a rendition warrant is issued by the Governor of the Commonwealth, the Governor’s warrant of arrest will supplant the proceedings under the fugitive warrant. OAG 63-63 .

440.320. Forfeiture of bond.

If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the judge, by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.

History. Enact. Acts 1960, ch. 135, § 19, effective June 16, 1960.

440.330. Extradition may be granted person accused or convicted in this state — Conditions.

The Governor may in his discretion surrender upon demand of the executive authority of another state, any person found in this state, notwithstanding the fact that a criminal prosecution or charges under the laws of this state are pending against such person, or that such person has been convicted in this state and is serving a sentence in any penal institution of this state. The Governor may condition the release of such prisoner to the demanding state upon such terms as he may stipulate, including the condition that the prisoner be returned to this state immediately after trial and before commencing the service of sentence, if any, in the demanding state; provided, however, in no case shall surrender of such prisoner be construed as a complete relinquishment of jurisdiction by this state, but such prisoner shall forthwith be returned to the custody of this state at expense of the demanding state, immediately after trial in the demanding state, or the completion of sentence therein, as the case may be.

History. Enact. Acts 1960, ch. 135, § 20, effective June 16, 1960.

NOTES TO DECISIONS

1.Application.

This section has no application to proceedings which took place in 1949, since it was enacted in 1960. Chick v. Commonwealth, 405 S.W.2d 14, 1966 Ky. LEXIS 236 (Ky.), cert. denied, 385 U.S. 977, 87 S. Ct. 518, 17 L. Ed. 2d 439, 1966 U.S. LEXIS 134 (U.S. 1966).

2.Parolees.

Article III of the Interstate Parole Compact (KRS 439.560 , now repealed) expressly waives extradition procedures insofar as parolees are concerned. Shull v. Wingo, 446 S.W.2d 645, 1969 Ky. LEXIS 135 ( Ky. 1969 ).

3.Forfeiture by State.

Where a prisoner of one state is transferred without reservation and without consent to a second state in order that he may be subjected to confinement in the latter, the question upon his release in the second state of whether he is a fugitive from justice and thus properly extraditable is one of state policy to be determined by the first state. Crady v. Cranfill, 371 S.W.2d 640, 1963 Ky. LEXIS 110 ( Ky. 1963 ).

Where accused was granted probation after conviction and then held by officers until arrival of officers of foreign state who took him to the foreign state after he had waived extradition and was then convicted and served two and one half (2 1/2) years in prison, his probation could be revoked and there was no waiver of jurisdiction by the state. Herndon v. Wingo, 404 S.W.2d 453, 1966 Ky. LEXIS 298 ( Ky. 1966 ).

Where a person was wanted by Kentucky and a second jurisdiction and was arrested by federal officers in a third state, the fact that the federal officers turned him over to the other jurisdiction was not a forfeiture by Kentucky of its right to prosecute him upon completion of his sentence in the other jurisdiction. Chick v. Commonwealth, 405 S.W.2d 14, 1966 Ky. LEXIS 236 (Ky.), cert. denied, 385 U.S. 977, 87 S. Ct. 518, 17 L. Ed. 2d 439, 1966 U.S. LEXIS 134 (U.S. 1966).

Where an Ohio parolee was tried and convicted in Kentucky for a crime committed in Kentucky but was returned to Ohio for parole violation, there was no waiver or forfeiture of Kentucky’s right to compel the defendant to serve his sentence. Shull v. Wingo, 446 S.W.2d 645, 1969 Ky. LEXIS 135 ( Ky. 1969 ).

Petitioner who committed a crime in Virginia while on parole on 1945 Kentucky conviction and was extradited according to statutory processes to Virginia where he served a sentence and was paroled and sent to Florida under supervisory arrangement although Kentucky had asked that he be detained, was not entitled to release after he was again apprehended in Kentucky and returned to confinement under the 1945 sentence, as Kentucky had not forfeited its rights by extraditing him or by delay on parole violation. Zitt v. Wingo, 467 S.W.2d 370, 1971 Ky. LEXIS 380 ( Ky. 1971 ).

Where a person is conditionally released to federal authorities to stand trial under this section, he may be returned to confinement in this state upon his surrender by federal authorities. Baldridge v. Commonwealth, 473 S.W.2d 847, 1971 Ky. LEXIS 173 ( Ky. 1971 ).

Where a person was convicted and sentenced by a Kentucky court, turned over to federal officers by local Kentucky officers without authority, convicted and sentenced by the federal authorities, served his federal sentence and was then released by the federal authorities to state authorities who committed him to serve the original state sentence, the trial court properly granted a writ of habeas corpus because the state forfeited its right to enforce the original sentence by turning him over to the federal officers without proper authority. Davis v. Harris, 355 S.W.2d 147, 1962 Ky. LEXIS 56 ( Ky. 1962 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

The paroling of a convict to the authorities of another jurisdiction for trial upon a criminal charge constitutes a permanent waiver of the right to recommit such convict for violations of the terms of his parole. Thomas v. Schumaker, 360 S.W.2d 215, 1962 Ky. LEXIS 219 ( Ky. 1962 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

4.Detainer Warrant.

The document styled “Detainer Warrant,” stating that, due to the fact that a fine was imposed, the court needed the defendant to return to the corrections department at the time which he was released from federal prison, was a nullity where the sentence imposed a fine, not imprisonment, the defendant was not serving time for this offense when he was transferred back to federal prison, and he had not been adjudicated in default of payment of the fine. Commonwealth v. Hayes, 734 S.W.2d 467, 1987 Ky. LEXIS 224 ( Ky. 1987 ).

5.Appellate Review.

Post conviction compliance with this section was not an issue and never could have been included in the issues litigated in the trial court and subject to appeal. Commonwealth v. Hayes, 734 S.W.2d 467, 1987 Ky. LEXIS 224 ( Ky. 1987 ).

6.Executive Authority.

Demand by prosecutor of the jurisdiction of the state of Indiana for the temporary custody of defendant satisfied the “executive authority” requirement of this section, and, along with the signature of a judge, complied with the requirements of the Uniform Criminal Extradition Act and the Interstate Agreement on Detainers; therefore, Governor’s warrant was not necessary. Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

Cited in:

Balsley v. Commonwealth, 428 S.W.2d 614, 1967 Ky. LEXIS 524 ( Ky. 1967 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ); Yost v. Smith, 862 S.W.2d 852, 1993 Ky. LEXIS 83 ( Ky. 1993 ); Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 (Ky. 2003).

440.340. Inquiry as to guilt prohibited after demand for extradition.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

History. Enact. Acts 1960, ch. 135, § 21, effective June 16, 1960.

NOTES TO DECISIONS

1.Questions in Habeas Corpus Proceeding.

In order to overcome the prima facie case made by Governor’s warrant, the person held upon such warrant, his identity having been established, had the burden of showing absence from the demanding state at the time of the alleged crime, or that he was not a fugitive from justice; and the court could not discharge the petitioner where there was merely contradictory evidence on the subject of presence or absence from the demanding state, for it was not the function of the writ to try a question of alibi or to determine the guilt or innocence of the accused. Ex parte Grabel, 248 S.W.2d 343, 1952 Ky. LEXIS 731 ( Ky. 1952 ) (decided under prior law).

Where the only question in a habeas corpus action was whether the accused was in Alabama when the offense was committed and there was conflicting evidence on the question, the court properly denied the writ, since it was not its duty to determine the guilt or innocence of the accused. Ex parte Noel, 338 S.W.2d 903, 1960 Ky. LEXIS 421 ( Ky. 1960 ) (decided under prior law).

440.350. Control of warrant.

The Governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.

History. Enact. Acts 1960, ch. 135, § 22, effective June 16, 1960.

440.360. Warrant of Governor to receiving officer.

Whenever the Governor of this state shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this state, from the executive authority of any other state, or from the Chief Justice or an Associate Justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this state, to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed.

History. Enact. Acts 1960, ch. 135, § 23, effective June 16, 1960.

440.370. Application for return of person charged with crime — Person convicted — Requisites and procedures.

  1. When the return to this state of a person charged with crime in this state is required, the Commonwealth’s attorney or county attorney shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
  2. When the return to this state is required of a person who has been convicted of a crime in this state and escaped from confinement or broken the terms of his bail, probation or parole, the Commonwealth’s attorney or county attorney of the county in which the offense was committed, the chairman of the parole board, or the warden of the institution or county attorney of the county from which escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, the state in which he is believed to be, including the location of the person therein at the time application is made.
  3. The application shall be verified by affidavit, shall be executed in triplicate and shall be accompanied by three (3) certified copies of the indictment returned, or affidavit made before a judge and warrant of arrest issued thereon, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The Commonwealth’s attorney or county attorney, chairman of the parole board or warden shall also attach such further affidavits and other documents in triplicate as he or the Attorney General may deem proper to be submitted with such application. When the application is made pursuant to subsection (1) of this section, the prosecuting attorney shall, unless the case is of the type mentioned in KRS 440.210 , submit to the Governor proof in the form of an affidavit that the accused was personally present in this state at the time of commission of the crime charged. One (1) copy of the application, with the action of the Governor indicated by endorsement thereon, and one (1) of the certified copies of the indictment, affidavit and warrant, or of the judgment of conviction or of the sentence shall be filed in the Office of the Secretary of State to remain of record in that office. The other copies of all papers shall be forwarded with the Governor’s requisition.

History. Enact. Acts 1960, ch. 135, § 24, effective June 16, 1960; 1976 (Ex. Sess.), ch. 14, § 455, effective January 2, 1978.

Opinions of Attorney General.

An application for requisition by another state was legally insufficient where the affidavit charging the offense was not sworn to before a judge or magistrate. OAG 63-6 .

An application for requisition is not legally sufficient under the statute where the papers constituting the application do not set out a definite time of commission of the offense with which the fugitive is charged. OAG 63-76 .

For the requisition to be in order it is not necessary that the indictment specify the time of commission of the crime, but this information should at least be in the verified application of the prosecuting attorney. OAG 63-76 .

A requisition application was insufficient where it was based upon a warrant of arrest issued upon an affidavit sworn to before a notary public. OAG 63-142 .

The circumstances of the commission of the crime must be stated in the application for requisition and copies of the warrant of arrest issued on the complaint must be attached. OAG 63-400 .

An application for requisition of a fugitive from Kentucky which did not contain a statement of circumstances of escape from confinement or breach of conditions of bail, probation or parole was not sufficient. OAG 63-411 .

Requisition papers that contained no copies of the affidavit charging the offense and no statement in the papers of the time of the commission of the offense were insufficient. OAG 63-1080 .

A deputy Circuit Court clerk has the authority to certify as true copies various Circuit Court documents, such as indictments and warrants for applications for requisitions in extradition matters, where the deputy Circuit Court clerk has been duly authorized and supervised by the circuit clerk to perform such a statutory function. OAG 80-174 .

In instances where fugitive is charged with a misdemeanor offense in Kentucky and waives extradition, the prosecuting attorney is required to make formal application to the Governor of Kentucky in order to secure the appointment of an agent who will be reimbursed for expenses incurred in making the trip to return the fugitive. OAG 90-98 .

The Governor of Kentucky is the only state official who has authority to designate an officer or agent for the Commonwealth of Kentucky to return a fugitive from another state to Kentucky when that fugitive is charged with a misdemeanor and has waived formal extradition proceedings. OAG 90-98 .

440.375. Extradition of persons charged with custodial interference.

  1. The county attorney shall present to the Governor a written application prepared in accordance with KRS 440.370 for the return from any other state of any person charged with a violation of KRS 509.070 .
  2. Upon receipt of the county attorney’s application, the Governor may immediately demand from the executive authority of any other state the return of any person charged with a violation of KRS 509.070 .

History. Enact. Acts 1978, ch. 72, § 1, effective June 17, 1978.

440.380. Waiver of extradition — Procedure — Expenses.

  1. When a person charged with commission of a felony in this state or with having been convicted of a felony here and having escaped from confinement or broken the terms of his bail, probation or parole is arrested in another state and waives extradition proceedings, the county judge/executive of the county in which the felony was committed, or from which the escape was made, may, upon filing of a verified application by the Commonwealth’s attorney or county attorney setting forth the fact of waiver and making all statements required by subsection (1) or subsection (2) of KRS 440.370 , enter an order designating an officer to return the fugitive to this state without benefit of any procedure incidental to extradition proceedings. Upon entry of such order the officer so designated shall be authorized to go after and return the fugitive as the agent of this state and shall receive from the State Treasury the same payment for his expenses as is provided by KRS 440.090 for agents acting under requisition of the Governor. If, in attempting to reclaim the fugitive, the agent is acting within the course and scope of his employment, the amount due shall be paid over to the agent’s employer instead of the agent. Claims for reimbursement of expenses under this subsection shall be accompanied by certified copies of the verified application for appointment of the agent and the order of appointment, together with a copy of any process showing delivery of the fugitive to the jailer upon return to this state. If the agent is not given possession of the fugitive for reasons beyond the agent’s control, he, or his employer, shall nevertheless be reimbursed as provided herein, if it is shown that prior to his appointment as agent and before departure from the state the fugitive had executed in the presence of any officer authorized to administer an oath a written waiver stating that he consents to return to this state without extradition.
  2. All legal costs incurred in apprehending and securing in this state a fugitive wanted in another state shall be paid by the agent of the state demanding him before the agent is permitted to remove him or receive him into custody.

History. Enact. Acts 1960, ch. 135, § 25, effective June 16, 1960; 2000, ch. 30, § 2, effective July 14, 2000.

Opinions of Attorney General.

Under this section a person appointed by order of the county judge as agent of this state to return a fugitive upon waiver of extradition is not entitled to reimbursement of expenses as provided in KRS 440.090 unless the order of appointment was entered prior to the departure of the agent from this state. OAG 63-108 .

The county judge has discretion in the matter of designating more than one agent to return a fugitive. OAG 63-676 .

Under this section the county judge has authority to enter an order designating two (2) officers to return a fugitive when this is requested by the county attorney or Commonwealth’s attorney and information is furnished indicating the need for more than one (1) agent. OAG 63-676 .

Where the county judge has appointed two (2) officers to return a fugitive under subsection (1) of this section and their papers are otherwise in order, both officers are entitled to be paid their expenses in the same manner in which two (2) agents designated in the Governor’s requisition are paid under this section. OAG 63-676 .

Although it is not mandatory that a county judge sign an order designating an agent to return a fugitive from justice, he should exercise reasonable discretion and any refusal should be based upon proper grounds. OAG 65-149 .

Where two (2) agents are appointed to return a fugitive from another state in an extradition case and employ only one private vehicle for their journey to and from the asylum state, the statute requires that each should be compensated at the rate of 10¢ per mile and other necessary expenses. OAG 67-379 .

Where, under KRS 440.450 , a prisoner is to be brought from another state to Kentucky and then returned to the other state, the state’s agent to return the prisoner should be appointed by the county judge under this section. OAG 75-373 .

This section does not authorize a Circuit Judge to designate the state’s agent for the return of a fugitive and he has no “inherent power” to make such appointment, it being immaterial that he exercises appellate jurisdiction over the county court. OAG 75-373 .

Where under this section a state’s agent for the return of a fugitive is appointed and the final return of the fugitive to another state has been made by that state a condition precedent to the release of the fugitive to the Kentucky authorities, the state’s agent may recover his mileage and other necessary expenses for the two (2) round trips involved in view of KRS 440.090 and 440.200 . OAG 75-373 .

The state is not liable to pay the fees or expenses of boarding prisoners held under fugitive warrants in county jails pursuant to interstate extradition. OAG 74-807 .

If Kentucky is the demanding authority in extradition matters, even if there was a waiver of the full extradition process by the other state, the legal costs incurred in making the fugitive available must be borne by Kentucky. OAG 74-815 .

Under this section an order designating an officer to return the fugitive to this State without the benefit of any procedure incidental to extradition proceedings must still be signed by the county judge/executive, since such an order is clearly an executive function requiring the county judge/executive’s authorization. OAG 78-398 .

A county judge/executive is not authorized to sign an order under this section in cases of waiver of extradition involving a fugitive charged with a misdemeanor and, therefore, the prosecuting attorney is required to make formal application to the Governor under KRS 440.370 in order to secure the appointment of an agent who will be paid travel expenses. OAG 90-98 .

The Department for Local Government properly denied request for reimbursement of expenses on the grounds that this section does not authorize reimbursement for expenses incurred in the return of a fugitive charged with a misdemeanor. OAG 90-98 .

The Governor of Kentucky is the only state official who has authority to designate an officer or agent for the Commonwealth of Kentucky to return a fugitive from another state to Kentucky when that fugitive is charged with a misdemeanor and has waived formal extradition proceedings. OAG 90-98 .

440.390. Immunity from civil process.

A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

History. Enact. Acts 1960, ch. 135, § 26, effective June 16, 1960.

440.400. Waiver of extradition by person arrested in this state — Procedure — Effect.

  1. Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in KRS 440.220 and 440.230 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any District or Circuit Court within this state a writing which states that he consents to return to the demanding state; provided, however, that before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in KRS 440.250 .
  2. If and when such consent has been duly executed it shall forthwith be forwarded to the office of the Secretary of State of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent; provided, however, that nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.

History. Enact. Acts 1960, ch. 135, § 27, effective June 16, 1960; 1976 (Ex. Sess.), ch. 14, § 456, effective January 2, 1978.

440.410. Construction against waiver of any of this state’s rights.

Nothing contained in KRS 440.150 to 440.420 shall be deemed to constitute a waiver by this state of its right, power, or privilege to try such demanded person for crime committed within this state, or of its right, power, or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence, or punishment for any crime committed within this state, nor shall any proceedings had under KRS 440.150 to 440.420 which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges, or jurisdiction in any way whatsoever.

History. Enact. Acts 1960, ch. 135, § 28, effective June 16, 1960.

440.420. Returned person subject to prosecution for other crimes.

After a person has been brought back to this state by or after waiver of extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.

History. Enact. Acts 1960, ch. 135, § 29, effective June 16, 1960.

Interstate Agreement on Detainers

440.450. Interstate agreement on detainers.

The agreement on detainers is hereby enacted into law and entered into by the Commonwealth of Kentucky with all other jurisdictions legally joining therein in the form substantially as follows:

HISTORY: Enact. Acts 1974, ch. 219, § 1; 1980, ch. 114, § 106, effective July 15, 1980; 1986, ch. 331, § 55, effective July 15, 1986.

The contracting states solemnly agree that:

ARTICLE I

The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

ARTICLE II

As used in this agreement:

  1. “State” shall mean a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.
  2. “Sending state” shall mean a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof.
  3. “Receiving state” shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.

ARTICLE III

  1. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
  2. The written notice and request for final disposition referred to in paragraph (1) hereof shall be given or sent by the prisoner to the warden, secretary of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by certified mail, return receipt requested.
  3. The warden, secretary of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
  4. Any request for final disposition made by a prisoner pursuant to paragraph (1) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, secretary of corrections or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
  5. Any request for final disposition made by a prisoner pursuant to paragraph (1) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (4) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
  6. Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in paragraph (1) hereof shall void the request.

ARTICLE IV

  1. The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(1) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: and provided further that there shall be a period of thirty (30) days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
  2. Upon receipt of the officer’s written request as provided in paragraph (1) hereof, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who have lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
  3. In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
  4. Nothing contained in this Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (1) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
  5. If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(5) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.

ARTICLE V

  1. In response to a request made under Article III or Article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in Article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner’s presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
  2. The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
    1. Proper identification and evidence of his authority to act for the state into whose temporary custody the prisoner is to be given.
    2. A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
  3. If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in Article III or Article IV hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
  4. The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one (1) or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. Except for his attendance at court and while being transported to or from any place at which his presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
  5. At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
  6. During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence may allow.
  7. For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
  8. From the time that a party state receives custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one (1) or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. The provisions of this paragraph shall govern unless the states concerned shall have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.

ARTICLE VI

  1. In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
  2. No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.

ARTICLE VII

Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.

ARTICLE VIII

This agreement shall enter into full force and effect as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.

ARTICLE IX

This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

NOTES TO DECISIONS

Analysis

1.Purpose.

One of the goals of the Interstate Agreement on Detainers (IAD) is expeditious disposition of charges pending against a prisoner in a state other than the one where he is detained; it is a vehicle by which an accused’s constitutional right to a speedy trial is assured when he complies with the terms of the agreement. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

The purpose of the Interstate Agreement on Detainers Act was to insure a speedy trial and to prevent punitive detainers. Shanks v. Commonwealth, 574 S.W.2d 688, 1978 Ky. App. LEXIS 630 (Ky. Ct. App. 1978), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

2.Application.

The Interstate Agreement on Detainers is applicable only as between signatory states. Yost v. Smith, 862 S.W.2d 852, 1993 Ky. LEXIS 83 ( Ky. 1993 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Interstate agreement on detainers, KRS 440.450 to 440.990 , applies to interstate detainers, i.e., detainers lodged by one state against prisoners incarcerated in another state, whereas KRS 500.110 applies to intrastate detainers, i.e. detainers lodged by Kentucky courts against in-state prisoners. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

3.Trial Requirement of Article IV.

While Article III and IV of the Interstate Agreement on Detainers (IAD) do not require a formal proceeding in open court, it is necessary that the prisoner or his counsel and a judge be present; thus, a pretrial conference in the clerk’s office, with the trial judge and attorneys for both sides present, satisfies the open court requirement. Roberson v. Commonwealth, 913 S.W.2d 310, 1994 Ky. LEXIS 150 ( Ky. 1994 ).

The 180-day time period set forth in Article III of the Interstate Agreement on Detainers (IAD) was not triggered since the proper Commonwealth’s attorney never received the detainee’s request. The 120-day time period of Article IV of the IAD was not violated because the delay in bringing the detainee to trial was for good cause, being the result of detainee’s own motions, which, in effect, constituted a voluntary waiver of his right to be prosecuted within the statutory time limit. Wright v. Commonwealth, 953 S.W.2d 611, 1997 Ky. App. LEXIS 107 (Ky. Ct. App. 1997).

The Interstate Agreement on Detainers Act does not require a final disposition of the case before the prisoner is returned to the federal authorities pursuant to Article V(5), which section requires the prisoner to be returned “[a]t the earliest practicable time” since Article IV(5) of this section requires a “trial,” not a final disposition. Shanks v. Commonwealth, 574 S.W.2d 688, 1978 Ky. App. LEXIS 630 (Ky. Ct. App. 1978), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

4.—Pretransfer Hearing.

Inasmuch as defendant had a pre-existing right by way of the Uniform Criminal Extradition Act for a pretransfer hearing, it was concluded that that right remained under the Interstate Agreement on Detainers, Article IV, § 4 of this section. Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

5.Writ of Habeas Corpus.

It is in the interest of sound judicial administration, and consistent with established principles, to require prisoners challenging extradition actions to pursue the remedies provided by the Interstate Agreement on Detainers (KRS 440.450 ) before seeking habeas relief in federal court. Norton v. Parke, 892 F.2d 476, 1989 U.S. App. LEXIS 19331 (6th Cir. Ky. 1989 ), cert. denied, 494 U.S. 1060, 110 S. Ct. 1533, 108 L. Ed. 2d 772, 1990 U.S. LEXIS 1596 (U.S. 1990).

Where a writ of habeas corpus ad prosequendum is issued prior to a detainer, it is not a detainer within the meaning of the agreement. Shanks v. Commonwealth, 574 S.W.2d 688, 1978 Ky. App. LEXIS 630 (Ky. Ct. App. 1978), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

6.Speedy Trial.

Where defendant escaped from the state reformatory in June, 1975, was imprisoned in Ohio, had a warrant issued against him for escape November 2, 1976, was indicted February, 1977, had made two (2) demands for a speedy trial by August, 1977, was returned to Kentucky in November, 1977, had a trial scheduled for February 10, 1978, and succeeded in getting the indictment dismissed on February 6, 1978, the trial court committed reversible error in dismissing the indictment, since the warden’s warrant was not a detainer within this section and the trial date in February was within 180 days of the August demand for trial so as to render the trial a speedy one. Commonwealth v. Monroe, 580 S.W.2d 722, 1979 Ky. App. LEXIS 399 (Ky. Ct. App. 1979).

The warden’s warrant issued pursuant to KRS 440.010 is only a notice to appropriate authorities that an individual is an escapee from a penal institution in Kentucky and, in and of itself, is not a request for a detainer which would be subject to the terms of the interstate agreement on detainers. Commonwealth v. Monroe, 580 S.W.2d 722, 1979 Ky. App. LEXIS 399 (Ky. Ct. App. 1979).

Defendant’s motion for a speedy trial, filed August 6, 1990, was insufficient to trigger the 180-day time limitation of Article III of the Interstate Agreement on Detainers (IAD) codified in this section; to invoke the Article III terms a defendant has to request to be tried in accordance with the IAD; but defendant’s motion for a speedy trial made no reference to the I.A.D. or the 180-day time limitation and defendant failed to comply with Article III which specifically requires that a request for disposition be accompanied by a certificate from the appropriate official having custody of the prisoner detailing specific information about the prison term in the sending state. Ellis v. Commonwealth, 828 S.W.2d 360, 1992 Ky. LEXIS 110 ( Ky. 1992 ).

Since there was no evidence that a detainer had been lodged against the defendant, who was incarcerated on other charges when he first demanded a speedy dispositon of charges against him, he had not yet acquired any right to proceed under either KRS 500.110 or this section and he was not denied the right to a speedy trial; it did not need to be decided which of these two (2) substantially identical statutory provisions applied. Rushin v. Commonwealth, 931 S.W.2d 456, 1996 Ky. App. LEXIS 73 (Ky. Ct. App. 1996).

Where Kentucky officials had not yet lodged a detainer against defendant with foreign authorities when he directly communicated his demand for a speedy trial, the trial court did not err in concluding that defendant did not activate the 180-day limit; therefore, since defendant had not acquired any right to proceed at the time he made the demand, he could not have been “thwarted” by any public officials in the pursuit of that right. Schneider v. Commonwealth, 17 S.W.3d 530, 1999 Ky. App. LEXIS 154 (Ky. Ct. App. 1999).

The disposition of charges against the defendant was not untimely, notwithstanding that the sending state failed to timely forward documents to Kentucky, where the defendant thereafter agreed to a trial date outside the limits set by the act. Ward v. Commonwealth, 62 S.W.3d 399, 2001 Ky. App. LEXIS 34 (Ky. Ct. App. 2001).

Where defendant silently acquiesced to a scheduled trial date that exceeded the speedy trial period imposed by KRS 440.450 , Art. IV(3) of the Interstate Agreement on Detainers, defendant waived any challenge to that violation. Parks v. Commonwealth, 89 S.W.3d 395, 2002 Ky. LEXIS 225 ( Ky. 2002 ).

Defendant’s motion to dismiss the charges against him because the trial was not commenced within 180 days pursuant to the Interstate Agreement on Detainers Act, KRS 440.450 , was properly denied because there was no evidence that the Commonwealth’s Attorney or the circuit court had notice that defendant had asked for disposition of the matter within the 180 days. Absent notice to the Commonwealth or the circuit court the 180-day period never commenced. Bryant v. Commonwealth, 199 S.W.3d 169, 2006 Ky. LEXIS 192 ( Ky. 2006 ).

To the extent that Lovitt v. Commonwealth, 592 S.W.2d 133, 1979 Ky. LEXIS 314 ( Ky. 1980 ), would compel a different result for calculating the 180-day time limitations under the Interstate Agreement on Detainers, KRS 440.450 , from the date the prisoner requests the review, it has been overruled by the United States Supreme Court decision in Fex v. Michigan, 507 U.S. 43, 113 S. Ct. 1085, 122 L. Ed. 2d 406, 1993 U.S. LEXIS 1781 (1993). Bryant v. Commonwealth, 199 S.W.3d 169, 2006 Ky. LEXIS 192 ( Ky. 2006 ).

Trial court's decision to continue the trial did not violate the Interstate Agreement on Detainers, Ky. Rev. Stat. Ann. § 440.450 et seq., where defendant had caused the requisite paperwork to be delivered to the wrong prosecuting officer. Johnson v. Commonwealth, 450 S.W.3d 696, 2014 Ky. LEXIS 619 ( Ky. 2014 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

7.Detainers.

The types of detainers covered by the interstate agreement are specifically set out herein and are limited to untried indictments, informations and complaints, and certain parole warrants; there is significance in enumerating certain categories of detainers while omitting others. Commonwealth v. Monroe, 580 S.W.2d 722, 1979 Ky. App. LEXIS 399 (Ky. Ct. App. 1979).

8.—Application.

Definition of detainer as established by courts interpreting the Interstate Agreement on Detainers, KRS 440.450 , applies to the definition of detainer under KRS 500.110 ; detainer means a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoners release is imminent. Donahoo v. Dortch, 128 S.W.3d 491, 2004 Ky. LEXIS 40 ( Ky. 2004 ).

9.Federal Prisoners.

A detainer lodged by one federal judicial district was not sufficient to trigger the act’s operation with respect to a prosecution in another federal judicial district, which obtained the prisoner’s presence through a writ of habeas corpus ad prosequendum to face unrelated charges in that district. United States v. Woods, 621 F.2d 844, 1980 U.S. App. LEXIS 17225 (6th Cir. Ky.), cert. denied, 449 U.S. 877, 101 S. Ct. 222, 66 L. Ed. 2d 99, 1980 U.S. LEXIS 3295 (U.S. 1980).

10.Failure to Request Disposition.

Where a prisoner failed to prove that he made a request to dispose of the detainer filed against him, or that, once the request was made, the official refused to process the request, and where the evidence showed that the prisoner elected to communicate directly with the requesting state, he failed to invoke the interstate agreement on detainers and a motion to dismiss the indictment based on the 180-day trial period was properly overruled. Rhodes v. Commonwealth, 622 S.W.2d 677, 1981 Ky. App. LEXIS 294 (Ky. Ct. App. 1981).

Defendant’s failure to deliver his request for final disposition of a pending charge in Kentucky under the Interstate Agreement on Detainers (IAD) to the Circuit Court did not prohibit the commencement of the 180-day period where defendant’s case began as an action in the juvenile branch of the District Court, not in the Circuit Court, and where the county prosecutor’s office had actual notice of his request long before the 180-day period expired. Carter v. Commonwealth, 856 S.W.2d 895, 1993 Ky. App. LEXIS 83 (Ky. Ct. App. 1993).

The opinion of the United States Supreme Court in Fex v. Michigan, 507 U.S. 43, 113 S. Ct. 1085, 122 L. Ed. 2d 406, 1993 U.S. LEXIS 1781 (1993), that “the 180-day time period in Article III of the IAD does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him” would be applied prospectively in Kentucky. Carter v. Commonwealth, 856 S.W.2d 895, 1993 Ky. App. LEXIS 83 (Ky. Ct. App. 1993).

11.Ineffective Assistance of Counsel.

Where the trial court would have been compelled to dismiss charges if the defense counsel had argued that defendant had complied with Article III(1) of this section by waiving extradition and requesting final disposition of the charges that formed the basis for the detainer, and that the Commonwealth had failed to bring him to trial within 180 days thereafter, the defense counsel’s failure to properly raise such defense constituted ineffective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

12.Effect of Temporary Transfer on Jurisdiction.

Although the defendant was denied his right to petition the Governor of Kentucky to disapprove Ohio’s request for temporary custody under the Interstate Agreement on Detainers (I.A.D. KRS 440.450 ), and he was not allowed the opportunity to file a writ of habeas corpus under the Uniform Criminal Extradition Act, defendant never served a sentence in Ohio but was immediately returned to this state as the I.A.D. required; therefore, defendant’s transfer from Kentucky to Ohio to stand trial for rape and abduction charges there, was not violative of the Uniform Criminal Extradition Act and the I.A.D. and Kentucky had jurisdiction over him to carry out his execution. Gall v. Commonwealth, 702 S.W.2d 37, 1985 Ky. LEXIS 286 ( Ky. 1985 ), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724, 1986 U.S. LEXIS 2668 (U.S. 1986).

13.Strict Compliance.

A prisoner must strictly comply with Interstate Agreement on Detainers (IAD KRS 440.450 ) procedures before any untimely or unlawful actions brought against him may be dismissed; however, when the prisoner has done everything possible to comply with the IAD, and it is the custodial state that is responsible for the prisoner’s default, then strict compliance with the IAD may not be required. Norton v. Parke, 892 F.2d 476, 1989 U.S. App. LEXIS 19331 (6th Cir. Ky. 1989 ), cert. denied, 494 U.S. 1060, 110 S. Ct. 1533, 108 L. Ed. 2d 772, 1990 U.S. LEXIS 1596 (U.S. 1990).

14.Effect of Noncompliance.

If the Interstate Agreement on Detainers is violated, the trial court is compelled to dismiss the charges with prejudice. Roberson v. Commonwealth, 913 S.W.2d 310, 1994 Ky. LEXIS 150 ( Ky. 1994 ).

Where the transfer of a prisoner from Kentucky to Louisiana was not in compliance with either the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act, Kentucky forfeited its right to require prisoner to serve out the remainder of his twelve year sentence. Yost v. Smith, 862 S.W.2d 852, 1993 Ky. LEXIS 83 ( Ky. 1993 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

15.Executive Authority.

Demand by prosecutor of the jurisdiction of the state of Indiana for the temporary custody of defendant satisfied the “executive authority” requirement of KRS 440.330 , and, along with the signature of a judge, complied with the requirements of the Uniform Criminal Extradition Act and the Interstate Agreement on Detainers; therefore, Governor’s warrant was not necessary. Commonwealth, Corrections Cabinet v. Ramsey, 828 S.W.2d 662, 1991 Ky. App. LEXIS 142 (Ky. Ct. App. 1991).

16.Interpretation of IAD.

States are bound by decisions of the United States Supreme Court in deciding issues regarding interpretation of the IAD. Carter v. Commonwealth, 856 S.W.2d 895, 1993 Ky. App. LEXIS 83 (Ky. Ct. App. 1993).

Although the interstate agreement on detainers (IAD), KRS 440.450 to 440.990 , is similar to KRS 500.110 , they are not the same, and, therefore, cases interpreting the IAD may not always be helpful in construing KRS 500.110 , and it is not necessary to construe the respective statutes as if they were identical. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Cited:

Lovitt v. Commonwealth, 592 S.W.2d 133, 1979 Ky. LEXIS 314 ( Ky. 1979 ); Houston v. Commonwealth, 641 S.W.2d 42, 1982 Ky. App. LEXIS 257 (Ky. Ct. App. 1982); Commonwealth v. Hayes, 734 S.W.2d 467, 1987 Ky. LEXIS 224 ( Ky. 1987 ); Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Notes to Unpublished Decisions

1.Speedy Trial.

Unpublished decision: Given that defendant did not show that the Commonwealth of Kentucky ever filed a detainer with Oklahoma authorities; instead, the Commonwealth obtained custody of defendant by extraditing him pursuant to an executive agreement authorized by the Uniform Criminal Extradition Act, KRS 440.200(1); the 120-day clock of the Interstate Agreement on Detainers, KRS 440.450 , was inapplicable to defendant’s indictment; thus, defendant was not denied his right to a speedy trial. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

Where, under this section, a prisoner is to be brought from another state to Kentucky and then returned to the other state, the state’s agent to return the prisoner should be appointed by the county judge under KRS 440.380 . OAG 75-373 .

The Interstate Agreement on Detainers Act of 1974 (KRS 440.450 to 440.510 ) amends, but does not by implication repeal, KRS 440.200 to the extent the act relates to persons imprisoned in a foreign state that is a party to the interstate agreement, but KRS 440.200 applies to prisoners in any state not a party to the agreement. OAG 75-373 .

Research References and Practice Aids

Cross-References.

Federal prisoner as witness in state felony trial, procedure, KRS 455.150 .

Federal prisoner, bringing to trial in state, procedure, KRS 455.140 .

Comparative Legislation.

Interstate agreement on detainers:

Ark Stat. 1947, §§ 16-95-101 — 16-95-107.

Ohio Baldwin’s Rev. Code, §§ 2963.30-2963.35.

Ind Burns’ Code Ed., IC 35-33-10-4.

Tenn Code Ann., §§ 40-31-101 — 40-31-108.

W. Va Code, §§ 62-14-1 — 62-14-7.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

440.455. Interstate agreement on detainers to apply to detainers based on affidavits and warrants charging violation of probation and parole. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 211, § 1) was repealed by Acts 1990, ch. 497, § 30, effective July 13, 1990.

440.460. “Appropriate court” defined.

The phrase “appropriate court” as used in the agreement on detainers shall, with reference to the courts of this state, mean the Circuit Court of competent jurisdiction.

History. Enact. Acts 1974, ch. 219, § 2.

NOTES TO DECISIONS

1.Not Applicable to KRS 500.110.

Supreme Court of Kentucky specifically declines to engraft this section of the interstate agreement on detainers (IAD), KRS 440.450 to 440.990 , regarding the “appropriate court” (which is the Circuit Court of competent jurisdiction for purposes of the IAD) onto the language of KRS 500.110 with regard to what constitutes the appropriate court in which to file a KRS 500.110 request for final disposition of pending charges. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

440.470. Enforcement — Cooperation of courts, agencies, etc.

All courts, departments, agencies, officers and employees of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other party states in enforcing the agreement and effectuating its purpose.

History. Enact. Acts 1974, ch. 219, § 3.

440.480. Construction.

Nothing in KRS 440.450 to 440.510 or in the agreement on detainers shall be construed to require the application of KRS 532.080 to any person on account of any conviction had in a proceeding brought to final disposition by reason of the use of said agreement.

History. Enact. Acts 1974, ch. 219, § 4; 1980, ch. 188, § 301, effective July 15, 1980.

440.490. Escape — Punishment.

An escape from custody in another state while in custody in another state pursuant to the agreement on detainers shall be deemed, for all purposes, as an escape from confinement in this state and may be punished as provided by KRS 520.020 to 520.040 and 506.010 , or other provision of law, as applicable.

History. Enact. Acts 1974, ch. 219, § 5; 1980, ch. 188, § 302, effective July 15, 1980.

440.500. Warden’s duties under agreement.

It shall be lawful and mandatory upon the warden or other official in charge of a penal or correctional institution in this state to give over the person of any inmate thereof whenever so required by the operation of the agreement on detainers.

History. Enact. Acts 1974, ch. 219, § 6.

440.510. Administrator.

The Governor shall name a state officer or employee to serve as central administrator of and information agent for the agreement on detainers.

History. Enact. Acts 1974, ch. 219, § 7.

Penalties

440.990. Penalty.

Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor’s warrant, in willful disobedience to KRS 440.250 , shall be guilty of a misdemeanor and, on conviction, shall be fined not less than one hundred ($100) nor more than one thousand dollars ($1,000) or imprisoned in the county jail not less than ten (10) nor more than thirty (30) days, or both.

History. Enact. Acts 1960, ch. 135, § 12, effective June 16, 1960.

CHAPTER 441 Jails and County Prisoners

441.005. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “Jail” means county jails and correctional or detention facilities, including correctional facilities defined in KRS 67B.020 and juvenile detention facilities, operated by and under the supervision of any political subdivision;
  2. “Holdover” means any jail housing prisoners for a maximum period of ninety-six (96) continuous hours and excluding times when a prisoner is released for a minimum of seven (7) hours for the purpose of working at his or her employment, attending an educational institution, or conducting other business pursuant to a court order, or when a prisoner is released for in court proceedings;
  3. “Prisoner” means any person confined in jail pursuant to any code, ordinance, law, or statute of any unit of government and who is:
    1. Charged with or convicted of an offense; or
    2. Held for extradition or as a material witness; or
    3. Confined for any other reason;
  4. “Unit of government” means that unit of government including the United States government whose law, statute, ordinance, or code a prisoner is charged with violating. If a person is imprisoned for contempt of court, the state shall be deemed the responsible unit of government;
  5. “Department” means the Department of Corrections;
  6. “Jail personnel” means deputy jailers, matrons, cooks, and other food service personnel, and other jail employees involved in the supervision, custody, care, or treatment of prisoners in jails but does not include maintenance or clerical personnel;
  7. “Regional jail” means a jail which is:
    1. Owned and operated by one (1) county and, on a regular basis, holds prisoners for another county or for the state; or
    2. Owned and operated by two (2) or more counties through a regional jail authority as provided in KRS 441.800 ;
  8. “Commissioner” means the commissioner of the Department of Corrections; and
  9. “Reentry center” means a supervised community residential facility operated by a local correctional facility, county jail, or regional jail as detailed in KRS 441.146 .

History. Enact. Acts 1976 (Ex. Sess.), ch. 12, § 1, effective January 1, 1978; 1982, ch. 385, § 1, effective July 1, 1982; 1982, ch. 428, § 3, effective July 15, 1982; 1984, ch. 141, § 8, effective July 13, 1984; 1984, ch. 415, § 12, effective July 13, 1984; 1992, ch. 211, § 113, effective July 14, 1992; 2017 ch. 158, § 87, effective June 29, 2017; 2020 ch. 109, § 6, effective April 24, 2020.

NOTES TO DECISIONS

1.Jail.

The county jail, being used for incarceration of convicted persons for penal purposes, as well as detention or correctional purposes, was determined to be a penal institution within the sense the term is used in the exclusion provisions of the county’s liability policy. Home Indem. Co. v. Johnson County Fiscal Court, 682 F. Supp. 326, 1987 U.S. Dist. LEXIS 13208 (E.D. Ky. 1987 ).

This section provides for a separate definition of the terms “jail” and “regional jail.” A jail is defined as a county jail or correctional and detention facility while a regional jail is defined as a jail “owned and operated by two or more counties through a regional jail authority as provided in KRS 441.800 .” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

2.Prisoner.

KRS 441.005(3) and KRS 441.265 contemplate imposition of jail fees whether or not the inmate is ever sentenced; therefore, the correct reading of KRS 441.265 is that the fees may be imposed as soon as the prisoner is booked into the jail and may be periodically deducted from the prisoner’s account as provided by local regulation. Sickles v. Campbell County, 439 F. Supp. 2d 751, 2006 U.S. Dist. LEXIS 51715 (E.D. Ky. 2006 ), aff'd, 501 F.3d 726, 2007 FED App. 0361P, 2007 U.S. App. LEXIS 21163 (6th Cir. Ky. 2007 ).

County was not liable under KRS 441.045(3) for medical treatment given to an inmate by a hospital while the inmate was released from the county jail on bail because the inmate was not in custody when he was released on bail, and thus he was not a “prisoner” during these periods for purposes of KRS 441.045(3). Hosp. of Louisa v. Johnson County Fiscal Court, 2009 Ky. App. LEXIS 53 (Ky. Ct. App. Apr. 10, 2009), rev'd, 2011 Ky. Unpub. LEXIS 30 (Ky. Mar. 24, 2011).

Cited in:

Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

Opinions of Attorney General.

In the event an area in the jail building has been approved for detention of juveniles, a county may contract with other counties to receive juveniles and detain them. OAG 82-334 .

For the purpose of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Ch. 61), workers’ compensation premiums (KRS Ch. 342), unemployment insurance premiums (KRS Ch. 341) and medical insurance coverage (KRS Ch. 67). OAG 82-346 .

The deputies, matrons and other supporting jail personnel, as defined in subsection (5) (now (6)) of this section, are county employees even though the state contributes financially to the operation of the jail under KRS 441.206 . OAG 82-346 .

Deputy jailers must be at least 21 years of age. OAG 82-383 .

Under the 1982 statutory enactments relative to jails and jailers, county jailers can now be assisted in the operation of the jail by personnel other than deputy jailers and matrons. The county can hire persons, other than deputy jailers and matrons who are appointed by the jailer, to perform duties as “jail personnel,” and these persons need not be 21 years of age since, they are not peace officers, but should be at least 18 years of age, the age of majority for most purposes. OAG 82-383 .

Jail employees are for general purposes county employees, and on that basis such employees are subject generally to various statutes relating to “county employees” as such; however, while the liability for unlawful acts of deputies rests with the jailer and his bond, nondeputy jail personnel would be subject to dismissal under the procedure of KRS 67.710(7). OAG 82-423 .

There is nothing in this section prohibiting a person’s being a deputy jailer or matron and a jail cook at the same time. However, any deputy jailer or matron who puts in more than 40 hours per week would be subject to overtime pay under KRS Chapter 337. OAG 82-463 .

Prior to July 1, 1982, the effective date of the 1982 amendment to this section by Ch. 385, relating to the definition of a “jail,” the jailer, and, if necessary (where jailer had no funds for that purpose) the fiscal court, was responsible for providing for any overtime worked by the deputy jailers. OAG 82-626 .

There may be more than one (1) jail building in any county, and there is no restriction as to its location which is left to the sound discretion of fiscal court as to any jail facility other than the usual one located in the county seat. OAG 82-626 .

A city of the fourth class (like all cities) has no responsibility for providing a jail; in addition, there appear to be no statutes requiring such city to contribute to or pay for the incarceration, housing, transportation, feeding and medical treatment of persons arrested by its officers. However, where the person arrested is charged with violating a city ordinance, the city, if the prisoner is determined to be indigent under KRS 31.120 , would be responsible for paying nonpostponable medical attention cost involving such prisoner. OAG 83-299 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

Kentucky Law Journal.

Article: Material Witness Detentions After al-Kidd, 100 Ky. L.J. 293 (2011/2012).

441.006. County responsibility for incarceration of prisoners — How met. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.025 by the Reviser of Statutes pursuant to KRS 7.136 .

441.007. State contribution for jail — Payments — Use of funds — Adjustment of state contribution. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.206 by the Reviser of Statutes pursuant to KRS 7.136 .

441.008. Jail operating budget — Financial records. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.235 by the Reviser of Statutes pursuant to KRS 7.136 .

441.009. Jailer’s salary — Calculation — Adjustment. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.245 by the Reviser of Statutes pursuant to KRS 7.136 .

441.010. Rules for county jails — Inspection — Medical care for prisoners. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.045 by the Reviser of Statutes pursuant to KRS 7.136 .

441.011. Regulation of jails — Adoption and revision of standards. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.055 by the Reviser of Statutes pursuant to KRS 7.136 .

441.012. Responsibilities of cabinet — Jail inspections — Access to jails — Reports. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.064 by the Reviser of Statutes pursuant to KRS 7.136 .

441.013. Violation of regulations — Orders and sanctions — Procedures for orders. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.075 by the Reviser of Statutes pursuant to KRS 7.136 .

441.014. Violation of regulations prohibited — Cabinet may seek court order — Civil contempt penalty. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.085 by the Reviser of Statutes pursuant to KRS 7.136 .

441.015. Appeals. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.095 by the Reviser of Statutes pursuant to KRS 7.136 .

441.016. Reports to fiscal court and cabinet by jailer. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.105 by the Reviser of Statutes pursuant to KRS 7.136 .

441.017. Local corrections training program — Jailer’s training expense allowance — Eligibility requirements. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.115 by the Reviser of Statutes pursuant to KRS 7.136 .

441.020. United States and cities may use county jails. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.035 by the Reviser of Statutes pursuant to KRS 7.136 .

Operation and Management of Local Correctional Facilities

441.025. County responsibility for incarceration of prisoners.

  1. The fiscal court of each county shall provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county.
  2. The fiscal court shall provide for the incarceration of prisoners by:
    1. Providing and maintaining a facility that complies with KRS 441.055 ;
    2. Providing and maintaining a safe, secure, and clean jail in the county; or that complies with the health and life safety standards defined in KRS 441.055 ;
      1. Contracting with another county or a city for the incarceration and care of its prisoners; and (c) 1. Contracting with another county or a city for the incarceration and care of its prisoners; and
      2. Providing for the transportation of prisoners, as provided for in KRS 441.505 and 441.510 including the provision of vehicles, drivers, and guards.
  3. Nothing in this section shall prohibit a county from providing facilities for holding prisoners for limited periods of time and contracting with another county or a city for longer periods of incarceration.
  4. Any county may enter into an agreement pursuant to KRS 65.210 to 65.300 to provide or to use jail facilities.

History. Enact. Acts 1982, ch. 385, § 2, effective July 1, 1982; 1984, ch. 141, § 13, effective July 13, 1984; 1996, ch. 108, § 1, effective July 15, 1996.

Compiler’s Notes.

This section was formerly compiled as KRS 441.006 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Venue.

Since there was no law requiring the director of Jefferson County correctional services department to send a letter to Frankfort, and there was no penalty associated with delivering the letter in Franklin County, but the letter was merely his manner of giving official notification to the Secretary of Corrections Cabinet (now Department of Corrections) that Jefferson County could no longer accommodate state prisoners who were brought to Jefferson County for court appearances, the proper venue in action for declaratory judgment to interpret this section governing incarceration of prisoners was in Jefferson County since if there was a failure to comply with this section it occurred in Jefferson County. Wilson v. Frey, 655 S.W.2d 37, 1983 Ky. App. LEXIS 336 (Ky. Ct. App. 1983).

2.Liability Insurance Exclusion.

The county jail, being used for incarceration of convicted persons for penal purposes, as well as detention or correctional purposes, was determined to be a penal institution within the sense the term is used in the exclusion provisions of the county’s liability policy. Home Indem. Co. v. Johnson County Fiscal Court, 682 F. Supp. 326, 1987 U.S. Dist. LEXIS 13208 (E.D. Ky. 1987 ).

3.Operation of County Jail.

This section states that a county may provide for the incarceration of prisoners by: “(a) providing and maintaining a jail in the county.” It does not provide that a fiscal court may operate a jail because that is a responsibility granted to the jailer by KRS 71.020 . Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

While it is readily understandable why for financial reasons county government should be permitted to make the best use possible of vacant, available jail space, this permissive use is necessarily secondary to the duties and responsibilities imposed by this section and KRS 441.045 to “provide for the incarceration of prisoners,” including “rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners.” Lexington-Fayette Urban County Detention Center v. Crockett, 786 S.W.2d 869, 1990 Ky. LEXIS 16 ( Ky. 1990 ).

The operation of a county jail is a governmental function of fiscal court, and where the fiscal court contracts with a company to provide either the facility or staffing or both, the jail operation enjoys the same immunity from the local zoning regulations as if the fiscal court and its jailer owned and ran the facility. City of Louisville Bd. of Zoning Adjustment v. Gailor, 920 S.W.2d 887, 1996 Ky. App. LEXIS 84 (Ky. Ct. App. 1996).

There can be no doubt that the operation of a county jail is a governmental function. City of Louisville Bd. of Zoning Adjustment v. Gailor, 920 S.W.2d 887, 1996 Ky. App. LEXIS 84 (Ky. Ct. App. 1996).

This section does not restrict a county in the methods it may choose to provide and maintain a jail. Phipps v. Commonwealth, 933 S.W.2d 825, 1996 Ky. App. LEXIS 118 (Ky. Ct. App. 1996).

KRS 67.083 provides a county with the necessary latitude and flexibility to provide and maintain a jail in the county as required by this section; thus, read together, subsection (2)(a) of this section, 67.083 (3)(e) and KRS Chapter 67B allow a county to contract with a private corporation to provide and maintain a jail. Transfer of defendant to privately owned and operated facility did not constitute an unauthorized release. Phipps v. Commonwealth, 933 S.W.2d 825, 1996 Ky. App. LEXIS 118 (Ky. Ct. App. 1996).

4.Regional Jail.

The power vested in the regional jail authority to “provide for the operation and maintenance” of the regional jail necessarily carries with it the power to employ an administrator and other personnel to operate the regional jail free of any direct participation by the jailers and fiscal courts of the counties involved. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

Circuit court properly affirmed an urban county government's motion to dismiss because it was not responsible for the costs of incarcerating prisoners not in its possession where the statute at issue began and ended with the premise of possession and that a prisoner's status flowed from that possession and control, the prisoners in the case at issue were prisoners of the counties that had possession and control of them via arrest until those counties relinquished them to another county, which then became responsible for the costs of their incarceration pursuant to an order of that county's courts and for which the jail authority did not have a contract. Big Sandy Reg'l Jail Auth. v. Lexington-Fayette Urban Cty. Gov't, 533 S.W.3d 164, 2017 Ky. LEXIS 442 ( Ky. 2017 ).

5.Agreement to House Federal Prisoners.

Entering into an agreement to house federal prisoners pursuant to the “Interlocal Cooperation Act,” KRS 65.210 , et seq., and this section, is a power, not a duty, imposed upon county government. Lexington-Fayette Urban County Detention Center v. Crockett, 786 S.W.2d 869, 1990 Ky. LEXIS 16 ( Ky. 1990 ).

Cited in:

Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

Opinions of Attorney General.

As to any damages caused by the inmates of the sending county that are being held by the holding county pursuant to a contract, the fiscal courts of the holding and sending counties have the authority to specifically contract in order to remove the risk of liability for such damages on the part of the holding county. OAG 82-334 .

In the event an area in the jail building has been approved for detention of juveniles, a county may contract with other counties to receive juveniles and detain them. OAG 82-334 .

This section contains no requirement that the sending county shall guarantee against any jail building damage to the holding county which may be subsequently brought about by the sending county’s prisoners, and thus the holding county would have to look to its own remedies. OAG 82-334 .

Where a county houses other counties’ inmates pursuant to a contract, the administration of the county’s function with regard to medical care for indigents would rest with the holding county for indigent prisoners of the contracting counties. OAG 82-334 .

While this section contains no guidelines as to the per diem contract rate to be paid by the sending county, the rate must be reasonable, and should at least include these factors: (a) the cost of feeding, supervising and caring for prisoners; and (b) the reasonable allocation of capital construction cost or value of building as a reasonable rental factor. OAG 82-334 .

Determination of the type, kind and amount of purchases (including food, bed supplies, cleaning supplies, etc.) for the jail is a joint responsibility of the jailer and the fiscal court. The jailer is immediately responsible for the program of necessary purchases, but after consultation and approval of fiscal court, since it is the funding agency. OAG 82-344 .

The fiscal court under this section is required to maintain a county jail for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county. This county responsibility extends to feeding and dieting such prisoners. OAG 82-344 .

For the purpose of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employes, social security payments (KRS Ch. 61), workers’ compensation premiums (KRS Ch. 342), unemployment insurance premiums (KRS Ch. 341) and medical insurance coverage (KRS Ch. 67). OAG 82-346 .

It is up to the jailer to procure the necessary drivers and guards required to transport prisoners to a jail to be used under a contract with another county; this should be done by closely cooperating with the fiscal court, so that it knows precisely and in detail what is required under that jail plan. The funding of such necessary personnel clearly rests with the fiscal court under KRS 441.008 (now KRS 441.235 ) and this section. OAG 82-399 .

The transportation of female prisoners may be accomplished by using male or female deputies or guards, provided the prisoners are treated humanely and within the bounds of human decency and good sense. OAG 82-399 .

The fiscal court cannot refuse to budget funds for the salaries of the jailer’s necessary deputies and matrons. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

This section implicitly gives the fiscal court the authority to determine the prisoner capacity of the local jail in order to intelligently plan for the incarceration of all prisoners subject to the local courts. The number of prisoners would be subject to jail standards, emerging from the jail standards commission pursuant to KRS 441.011 (now KRS 441.055 ), as adopted by the Corrections Cabinet (now Department of Corrections), and other statutory requirements relating to detention facilities. OAG 82-421 .

When the local jail is at its capacity and the fiscal court contracts with another county or a city to provide detention facilities for such excess, the jailer generally procures the necessary drivers and guards required to transport prisoners to the jail to be used under the contract, and this should be done by closely cooperating with the fiscal court such that it knows precisely and in detail what is required under that jail plan; the funding of such necessary personnel clearly rests with the fiscal court under KRS 441.008 (now KRS 441.235 ) and this section. OAG 82-421 .

The local fiscal court, not the local jailer, determines the prisoner capacity of the county jail, and when there is no space available in the local jail, as determined by fiscal court policies, the arresting officer may turn over the prisoner to the local jailer, who then must transport the prisoner to the contract facility. OAG 82-437 .

City police staff may take an arrested person, where the local courts are not open or available for an appearance, to the local jailer who must accept the prisoner for housing in the local jail, or in the contract jail where no space is available in the local jail, until the court magistrate becomes available. The local jailer must transport such prisoner (who is to be tried locally) to the contract jail, except where otherwise agreed by contract. OAG 82-476 .

The local fiscal court is responsible for determining the prisoner capacity of the jail. OAG 82-476 .

Aside from the fiscal court’s statutory duty of meeting the minimal jailer salary and other standards, the fiscal court is required to, in consultation with the jailer, adopt an operating budget for the jail. Where a jailer has good reason to believe that a fiscal court has acted arbitrarily in establishing the operating budget for the jail, and the jail operation has no more money for that year, he may seek redress in the Circuit Court. OAG 82-498 .

Where the fiscal court of the first county has, pursuant to subdivision (2)(b) (now (2)(c)(1)) of this section, contracted with a second county to house prisoners who will be tried by the courts in the first county, the jailer or his deputies of the first county, in the absence of an agreement to the contrary, has the responsibility of the transportation of such prisoners to the contract jail and back where necessary, and under KRS 441.500(3) (now KRS 441.510(3)) of transporting such prisoners to the proper court. OAG 82-549 .

Where KRS 337.285 (time and a half) is properly applied (extra time is necessary), then if the “jail budget” part of the county budget does not contain the money to pay for such overtime, the fiscal court is responsible for paying it, since the fiscal court has the overall duty of maintaining a county jail operation regardless of whether it admits an employer-employee relationship or not. In such situation the “employer” is still the jailer under KRS Chapter 337. OAG 82-625 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable, and liable on his bond for the payment of the overtime to the deputy or matron and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

Prior to the enactment of Acts 1982, ch. 385, where the time in excess of 40 hours was authorized by the jailer, the time and one half payment was a claim against the jailer’s fees; where he had no fees available, the county treasurer, where a properly budgeted sum was available, was answerable to such payment for overtime, under the concept that the county jail was a county institution, even though the jailer was immediately in charge of the jail, and the fiscal court was ultimately or derivatively responsible for the effective operation of that county institution. OAG 82-626 .

Under subsection (2) of this section, a county fiscal court could enter into a contract, wherein such fiscal court would furnish detention facilities for the prisoners of a second county which had closed its jail because of inadequate facilities; in addition, the counties could enter an interlocal agreement for the use of jail facilities as authorized by subsection (4) of this section. OAG 83-26 .

The election by a county to close its jail and to contract with another county for the incarceration of prisoners, as permitted by this section, does not affect the state contribution provided in KRS 441.007(1) (now KRS 441.206(1)). OAG 83-26 .

The compensation to be paid to receiving county by sending county for the keeping of sending county’s prisoners must depend upon the mutual agreement of the two (2) fiscal courts, which agreement should involve a reasonable compensation for the detention services furnished, framed around the actual costs of furnishing such detention facilities; the cost elements could include a consideration of the original construction cost of the receiving county’s jail, the space allotted per prisoner, the cost of utilities, the present cost of replacement of the jail if it had to be rebuilt, the level of standards in terms of what would be considered adequate jail housing, the operational and salary costs relating to the jailer and his deputies, including furnishing of food. An agreement based upon the sending county’s sharing in both the operation and capital construction costs would be equitable, and would meet the fundamental fairness concept expressed in Const., § 2. OAG 83-26 .

The fiscal court must provide the jail with proper furnishings and equipment necessary for preparation of food for jail prisoners; this is primarily a direct capital and equipment responsibility of the county, through the fiscal court. In addition, the funds for the food and necessary funds for food preparation personnel must come out of the jail budget of the county budget. OAG 83-250 .

Where a first county’s jail is closed and has necessitated the fiscal court’s contracting with other counties for the housing of the county’s prisoners, the jailer of that first county has the responsibility for transporting that county’s prisoners from the now closed county jail to a jail or jails made available under contract by one or more other counties, except as otherwise agreed in such contracts. This responsibility of transporting such county prisoners to the contract jails applies to the first county’s jailer, regardless of whether the arresting officers were city policemen, county policemen, or state police officers. OAG 83-299 .

An arresting officer in a first county which has closed its jail and contracted with other counties for housing its prisoners has the responsibility of either bringing the arrested person to the proper court, if in session, or to that first county’s jailer for transportation to a contract jail, where the prisoner will await court appearance. OAG 83-299 .

Where a housing problem arose relating to the counties’ housing of prisoners convicted of felony and sentenced to a corrections institution such that convicted felons could not be moved immediately to the corrections system from the county jails, and where the Corrections Cabinet (now Department of Corrections) negotiated an arrangement with the Kentucky Jailers Association whereby Corrections would pay the counties (in connection with jail budgets) a $10 fee per day per convict beginning on the seventh day after sentencing and extending until the felon was admitted to the state facility, such fee arrangement as a payment of housing costs of such prisoners was legitimate; however, the housing fee arrangement could not be extended to embrace situations in which state prisoners were brought back to the county jail as witnesses or under an RCr 11.42 proceeding since subsection (1) of this section, in its description of prisoners the county is required to house, does not embrace these two (2) categories of prisoners and since the Corrections part of the state budget does not embrace such categories. OAG 83-339 .

The operation of the county jail is a joint responsibility of the jailer and fiscal court, and the county judge/executive, when the fiscal court is not in session, is required to implement the policy and formal actions of the fiscal court relating to the fiscal court’s joint operative jail responsibility. OAG 83-442 .

The jailer and fiscal court are jointly responsible for the operation of the jail, and the county judge/executive has an implementing function relating to that joint responsibility. Unless the courts would arrive at a different conclusion in a case in which the issue is clearly and plainly presented, the joint responsibility can be modified only by new legislation pinpointing and delineating with sharpness the relative management responsibilities of the jailer, fiscal court and county judge/executive. OAG 83-442 .

Off-duty members of a police department, located in a county having no county jail, may serve as assistants to the county jailer and receive compensation from the county for transportation of prisoners to a jail in an adjacent county so long as the police officers are employed as drivers of vehicles or guards; the off-duty police officers could not serve as deputy jailers. OAG 83-450 .

Under KRS 441.030 (now KRS 441.520 ), where there is no jail in County A or the jail there is insecure, or there is danger or probable danger that the defendants incarcerated under any order of the court will be removed from the jail by violence, the Circuit Judge of County A shall by an order of record direct that such prisoners be transferred to County B, the nearest county in which the jail is secure; in that situation, the Circuit Judge of County A is ordering such prisoners to be held in County B and, thus, the fiscal court of County A is responsible for the jail costs occasioned by the jailer in County B, pursuant to subsection (1) of this section. OAG 84-88 .

Since the statutes make no special provisions for the payment of jail expenses of prisoners moved from one county to another under a change of venue, where the trial, under change of venue, is moved from County A to County B, County B has no statutory basis for charging County A for the costs of incarceration while the prisoner is in the jail in County B; since the prisoner, under a change of venue, is being held in County B by order of the court in County B, as provided in subsection (1) of this section, the fiscal court of County B is responsible for the jail costs while the prisoner is detained in that jail. OAG 84-88 .

Where an indigent prisoner is brought to a county jail, and assuming that the particular county has the responsibility under this section to incarcerate the prisoner, the fiscal court of that county, through its jail budget, has to bear the cost of providing necessary medical, dental or psychological care for such prisoner, subject to the applicable exceptions under KRS 441.045(4) and (5). The fact that the jailer refused to incarcerate the prisoner when first brought in on the ground that medical attention was deemed necessary in no way militates against the responsibility of that particular county for paying the prisoner’s medical costs. OAG 84-256 .

Under this section, the fiscal court of a county with a jail would be required to contract with another county, or with other counties, for the incarceration and care of its prisoners; a resolution or order of the fiscal court would be necessary to authorize such a contract or contracts to handle prisoners in excess of the county’s jail space. OAG 84-354 .

Where a county has no regular jail, but only a holdover jail, and the jailer does not transport prisoners, the jailer must serve as a bailiff to the Circuit and District Courts, as provided for in KRS 71.050 ; the fiscal court may also require the jailer to serve as custodian of county buildings and grounds, as provided for in KRS 67.130 . It is up to the fiscal court to designate some suitable person to be in charge of the county holdover. OAG 85-6 .

County would be banned under Const., § 162 from paying any claim under an agreement or contract for a project involving the leasing of a detention facility (prison) used to house prisoners from outside as well as within the state, as there is no express authority of law for a county’s entry into such endeavor. OAG 90-115 .

Long term housing of prisoners of the State of Kentucky is a function constitutionally mandated to the state, and the role sought to be assumed by a county in housing not only state prisoners, but prisoners of jurisdictions outside Kentucky, is not provided for by statute and is not a function necessary for operation of the county; accordingly, the county may not lawfully lease and operate a 336 bed detention center or prison for such purpose; such action is not necessary for operation of the county and handling the types of prisoners envisioned under this project is “otherwise provided for” by statute and the Kentucky Constitution. OAG 90-115 .

The statutes place the general responsibility for transporting prisoners with the sheriff, with the fiscal court being responsible for providing funding for such responsibility through the jail budget. OAG 92-47 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.030. Transfer of prisoners to secure jail — Circuit judge may order. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.520 by the Reviser of Statutes pursuant to KRS 7.136 .

441.035. United States and cities may use county jails.

The United States may use the jail of any county, and any city may use the jail of the county in which the city is located for the incarceration of prisoners charged with or convicted of violations of the city’s ordinances, by paying the county the fees set by agreement with the fiscal court for the type of services rendered. Any jailer shall receive and confine in jail, until lawfully discharged, persons committed under the laws of the United States or for a violation of the ordinances of any city within the county.

History. 2227, 2228: amend. Acts 1982, ch. 385, § 39, effective July 1, 1982.

Compiler’s Notes.

This section was formerly compiled as KRS 441.020 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Status of Jailer.

County jailer receiving federal prisoner is not an officer of United States. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

2.Accounting for Fees.

The jailer of a county must account to the fiscal court for fees received for keeping federal prisoners as required by this section. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

3.Use by Cities.

A jailer and a city may not contract for a fee for city prisoners different from that provided by statute. Winchester v. Azbill, 225 Ky. 389 , 9 S.W.2d 51, 1928 Ky. LEXIS 791 ( Ky. 1928 ).

KRS 441.300 (repealed), providing that county containing city of first class may require such city to pay part of compensation of physician to jail, does not violate Const., § 171, since this section authorizes the city to use the jail. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

4.Federal Prisoners.

Jailers must receive persons committed by the United States and, until properly discharged, keep them under the same terms as state prisoners. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

Opinions of Attorney General.

The maximum amount a county could charge a city for keeping city prisoners in the county jail is $1.75 per day for keeping and dieting a prisoner. OAG 60-761 .

The $0.75 charge which can be levied by the county against the city for imprisoning and releasing a prisoner is not a daily fee. OAG 60-761 .

The county fiscal court had no authority to require that a city of the fourth class pay for half of the utilities in order to house city prisoners in the county jail. OAG 62-616 .

The county jailer cannot refuse to accept prisoners committed to him by a judgment of the police court of a city while such court has jurisdiction to try the offense and the person charged therewith. OAG 62-616 .

In a situation involving military prisoners of the United States, the federal government must pay the jailer the fees allowed by KRS 64.150 (repealed) for the type of services rendered, and the county has no authority to pay such fees. OAG 64-460 .

Where a prisoner is confined in the county jail for a breach of the by-laws or ordinances of a city, the city must pay the jailer fees, regardless of whether or not a fine was a part of the authorized penalties. OAG 68-144 .

Whether or not the city pays for the dieting fees of city prisoners lodged in the county jail hinges on whether or not the police court has jurisdiction of the offense, such that, under applicable statutes, any fine imposed upon conviction would be payable to the city. OAG 68-144 .

Where a city lodges prisoners in a county jail, the fees it is required to pay to the jailer under KRS 64.150 (repealed) do not make him a city employee or an employee of both city and county, as he is a county employee exclusively and therefore the county, not the city, should withhold FICA taxes. OAG 68-184 .

A fifth-class city must pay the county jailer the statutory fees for keeping and dieting any city prisoner convicted in Circuit Court on appeal from the police court where a fine is imposed and paid to the city. OAG 68-495 .

Where an indigent was found guilty of an offense in the city police court and sent to the county jail, although the city would be responsible for paying the dieting fees for the prisoner, it would not be responsible for his medical bills when it became necessary to hospitalize him. OAG 71-66 .

Where a city uses the county jail, the police court could recommend in a document separate from the judgment that a particular city prisoner not be allowed to be a trusty but the ultimate decision must be made by the county court. OAG 71-481 .

Where a city uses the county jail the ultimate authority in prescribing rules governing the designation of prisoners in the county jail as trusties is vested in the county court. OAG 71-481 .

A city government utilizing a county jail under this section has no authority to impinge upon the county court’s prerogative. OAG 72-17 .

If a city has no jail and no town marshal, the county jail may be utilized by a sixth-class city to enforce the failure to pay a parking ticket. OAG 74-307 .

Since this section deals with the use of the county jail by the United States and any city, it appears that the county judge has no authority to legislate in terms of prisoners to be received by the jailer. OAG 74-529 .

The county judge has no authority under this section to set charges for keeping prisoners as this is a legislative matter covered by KRS 64.150 (repealed) which sets forth various jailers’ fees. OAG 74-529 .

The county judge has no authority to legislate by issuing a rule regulating the number of prisoners to be received by the jailer. OAG 74-529 , 74-562.

When an indigent prisoner is held in a county jail for a city, the county of his residence has the primary responsibility for paying the jail’s diet fees but the city of his residence is jointly responsible. OAG 75-51 .

The medical and drug bills of a city prisoner confined in the county jail should be paid by him if he is not indigent; if he is indigent the county of his residence is primarily responsible for such bills, although the city of his residence has joint responsibility therefor, and the city and county should agree on an equitable basis of shared payment. OAG 75-51 .

Where persons arrested by city authorities are incarcerated in the county jail under the authority of this section, their boarding bills, pursuant to KRS 64.150 (repealed), are paid by the state if they are charged with a felony, by the county if they are charged with a misdemeanor and by the city if they are charged with a breach of a city ordinance. OAG 75-291 .

A city is authorized by statute to commit its prisoners to the county jail by paying the statutory fees allowable to the jailer for keeping and dieting such prisoners and the county fiscal court cannot legally refuse to accept city prisoners lawfully committed to the county jail when the city pays the prescribed statutory fees to the jailer. OAG 76-362 .

When requested to do so by proper city officials, a county jailer must accept a city prisoner, provided there is sufficient space in the jail at the time to accommodate him and provided the dieting fees are paid as required under KRS 64.150 (repealed). OAG 76-536 .

A county, through its fiscal court, cannot require a city to pay a jail maintenance fee to the county, which is in addition to the dieting fee allowed the county jailer under KRS 64.150 (repealed), in connection with the confinement in the county jail of those persons who have been charged with or convicted of violating a city ordinance; maintenance of the county jail is a required county function and persons charged with or convicted of violations of city ordinances may be confined in the county jail so long as the jailer’s fees under KRS 64.150 (repealed) are paid. OAG 80-463 .

Given the absence of a statute authorizing a fiscal court to impose an administrative fee for booking upon a municipality or arrestee, and the statutory duty imposed upon the jailer to receive and keep in jail all persons lawfully committed to the jail until they are lawfully discharged, a fiscal court cannot lawfully impose a general administrative fee on a municipality or arrestee for booking in a county jail. OAG 94-56 .

Research References and Practice Aids

Cross-References.

Military, persons convicted by, use of jail for confinement, KRS 35.055 .

Person arrested in city of fourth or fifth class, confinement in county jail, KRS 95.787 .

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

441.040. Manner of transfer — Compensation of officers — Computation of expenses. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.530 by the Reviser of Statutes pursuant to KRS 7.136 .

441.045. Rules for jails — Inspection by county judge/executive — Medical, dental, and psychological care for prisoners — Funds not to lapse — Fee for use of jail medical facilities by state prisoner — Payments to counties not to exceed Medicaid rate — Transportation of prisoners for health care — Responsibility for health care expenses.

  1. The county governing body shall prescribe rules for the government, security, safety, and cleanliness of the jail and the comfort and treatment of prisoners, provided such rules are consistent with state law. The county judge/executive may inspect the jail at any reasonable time.
  2. Willful violation of the rules promulgated pursuant to subsection (1) of this section shall be deemed a violation.
  3. Except as provided in subsections (4) and (5) of this section, the cost of providing necessary medical, dental, and psychological care for indigent prisoners in the jail shall be paid from the jail budget.
  4. The cost of providing necessary medical, dental, or psychological care for prisoners of the United States government shall be paid as provided by contract between the United States government and the county or as may otherwise be provided by federal law.
    1. The cost of providing necessary medical, dental, or psychological care, beyond routine care and diagnostic services, for prisoners held pursuant to a contractual agreement with the state shall be paid as provided by contract between the state and county. The costs of necessary medical, dental, or psychological care, beyond routine care and diagnostic services, of prisoners held in the jail for which the county receives a per diem payment shall be paid by the state. (5) (a) The cost of providing necessary medical, dental, or psychological care, beyond routine care and diagnostic services, for prisoners held pursuant to a contractual agreement with the state shall be paid as provided by contract between the state and county. The costs of necessary medical, dental, or psychological care, beyond routine care and diagnostic services, of prisoners held in the jail for which the county receives a per diem payment shall be paid by the state.
    2. To the extent that federal law allows and federal financial participation is available, for the limited purpose of implementing this section, the jail, the department, or the department’s designee is authorized to act on behalf of an inmate for purposes of applying for Medicaid eligibility.
  5. The cost of providing necessary medical, dental, or psychological care for prisoners held pursuant to a contractual agreement with another county or a city shall be paid as provided by contract between the county or city and county.
    1. When the cost of necessary medical, dental, or psychological care for a prisoner exceeds one thousand dollars ($1,000), as calculated by using the maximum allowable costs to similar persons or facilities for the same or similar services under the Kentucky Medical Assistance Program, the state shall reimburse the county for that portion of the costs that exceeds one thousand dollars ($1,000). The reimbursement shall be subject to the following terms and conditions: (7) (a) When the cost of necessary medical, dental, or psychological care for a prisoner exceeds one thousand dollars ($1,000), as calculated by using the maximum allowable costs to similar persons or facilities for the same or similar services under the Kentucky Medical Assistance Program, the state shall reimburse the county for that portion of the costs that exceeds one thousand dollars ($1,000). The reimbursement shall be subject to the following terms and conditions:
      1. The care is necessary as defined in subsection (10) of this section;
      2. The prisoner is indigent as defined in subsection (8) of this section, or is uninsured; and
      3. No state reimbursement to the county for care provided by physicians, hospitals, laboratories, or other health care providers shall exceed the maximum payments allowed to similar persons or facilities for the same or similar services under the Kentucky Medical Assistance Program, except as provided in subsection (11) of this section.
    2. A county may assign its ability to receive payment from the state under this subsection to the person providing the medical, dental, or psychological care to the prisoner, which assignment shall be accepted by the provider for the purposes of submitting billing directly to the state. The state shall pay or deny a claim submitted to it within ninety (90) days of receiving the claim. The county shall include with the assignment the information required by subsection (8) of this section necessary to qualify the prisoner as indigent. The provider shall bill for any other public or private health benefit plan or health insurance benefits available to the prisoner prior to billing the state under this subsection, and shall bill the state prior to billing the county. The county shall retain ultimate payment responsibility as established under subsection (3) of this section, and the provider may bill the county for payment after the expiration of ninety (90) days from the date the provider submitted the claim to the state for payment if the claim remains unpaid at that time.
    1. The determination of whether a prisoner is indigent shall be made pursuant to KRS 31.120 , and may be evidenced by the affidavit of indigency required by that statute or the appointment of a public defender under that statute. The prisoner shall not be considered indigent, in the case of prisoner medical care, if: (8) (a) The determination of whether a prisoner is indigent shall be made pursuant to KRS 31.120 , and may be evidenced by the affidavit of indigency required by that statute or the appointment of a public defender under that statute. The prisoner shall not be considered indigent, in the case of prisoner medical care, if:
      1. The prisoner has funds on his or her inmate account to cover all or a portion of his or her medical expenses;
      2. The prisoner’s medical expenses are covered on a medical insurance policy; or
      3. The prisoner has the private resources to pay for the use of the medical facilities.
    2. Prisoners who are later determined not to have been indigent, or who at a time following treatment are no longer indigent, shall be required to repay the costs of payments made pursuant to this section to the unit of government which made the payment.
  6. The terms and conditions relating to any determination of nonindigency and demands for repayment shall be under the same terms and conditions as are provided under KRS Chapters 31 and 431 relating to similar circumstances in the program for defense of indigents by the public advocate.
  7. For the purposes of this section, “necessary care” means care of a nonelective nature that cannot be postponed until after the period of confinement without hazard to the life or health of the prisoner.
  8. Any money appropriated for a given fiscal year to fund the state’s obligation under subsection (7) of this section which remains unspent at the end of the year shall not lapse but shall be made available to satisfy, to the maximum extent possible, that portion of each catastrophic claim made during said year above the threshold amount for which the county did not receive state assistance pursuant to subsection (7) of this section. In the event there is an insufficient surplus to satisfy said balance of all such catastrophic claims which are made during that year, the state shall pay to those qualified counties, on a per claim basis, an amount equal to each claim’s percentage of the total surplus. Should the surplus be sufficient to satisfy all such catastrophic claims, the amount remaining, if any, shall not lapse but shall be carried forward to the next fiscal year to be made available for future catastrophic claims.
  9. Notwithstanding other provisions of this section to the contrary, a jail may impose a reasonable fee for the use of jail medical facilities by a prisoner who has the ability to pay for the medical care. These funds may be deducted from the prisoner’s inmate account. A prisoner shall not be denied medical treatment because he or she has insufficient funds on his or her inmate account. This subsection shall not preclude other recovery of funds as provided in this section.
    1. Notwithstanding any other provision of this section to the contrary, a jail may impose a reasonable fee for the use of jail medical facilities by a state prisoner who has been placed in a jail pursuant to a contract with the Department of Corrections under KRS 532.100 or other statute, and who has the ability to pay for medical care. (13) (a) Notwithstanding any other provision of this section to the contrary, a jail may impose a reasonable fee for the use of jail medical facilities by a state prisoner who has been placed in a jail pursuant to a contract with the Department of Corrections under KRS 532.100 or other statute, and who has the ability to pay for medical care.
    2. Funds may be deducted from the state prisoner’s inmate account at the jail.
    3. A state prisoner shall not be denied medical treatment because he or she has insufficient funds in his or her inmate account.
    4. This subsection shall not preclude other recovery of funds as provided in this section.
    5. This subsection does not authorize recovery of funds from a prisoner for medical care which has been paid or reimbursed by the state pursuant to this section.
  10. Except as provided in subsection (4) of this section, all payments for necessary medical, dental, or psychological care for jail, regional jail, or holdover prisoners shall be made at a rate not to exceed the Medicaid rate for the same or similar services, which shall be paid within thirty (30) days under the provisions of KRS 65.140 of receiving a claim from the health facility or provider for the item or service. This subsection shall not obligate the Medicaid program to pay for services provided to a prisoner.
    1. A peace officer or correctional officer having custody of a person shall not release the person from custody so that the person may receive treatment from a health care facility or health care provider, except pursuant to an order issued by a court of competent jurisdiction which specifically names the person to receive treatment. (15) (a) A peace officer or correctional officer having custody of a person shall not release the person from custody so that the person may receive treatment from a health care facility or health care provider, except pursuant to an order issued by a court of competent jurisdiction which specifically names the person to receive treatment.
    2. A peace officer or correctional officer having custody of a person may take the person to a health care facility or health care provider for the purpose of receiving treatment if a correctional officer remains with the person during the time the person is on the premises of the health care facility or health care provider, unless the facility or provider consents to the absence of the officer.
    3. A county, urban-county, consolidated local government, charter county, unified local government, jail, regional jail, holdover, local detention center, or other local correctional facility shall not be responsible for paying for the medical or other health care costs of a person who is released by a court of competent jurisdiction, except where the release is for the purpose of receiving medical or other health care services as evidenced by an order requiring the person to return to custody upon completion of treatment.
    4. When a county, urban-county, consolidated local government, charter county, unified local government, jail, regional jail, holdover, local detention center, or other local correctional facility is responsible for paying for medical or other health care costs under paragraph (c) of this subsection, payment shall be made only at the Medicaid rate for same or similar services.
    5. For the purposes of this subsection, “correctional officer” includes a:
      1. Jailer or deputy jailer;
      2. Director or other person in charge of a local detention center, local correctional facility, or regional jail; and
      3. Correctional officer employed by a local detention center, local correctional facility, or regional jail.

History. 2233, 2235: amend. Acts 1976 (Ex. Sess.), ch. 12, § 2, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 457, effective January 2, 1978; 1979 (Ex. Sess.), ch. 21, § 1, effective May 12, 1979; 1982, ch. 385, § 38, effective July 1, 1982; 1984, ch. 415, § 2, effective July 13, 1984; 1986, ch. 343, § 1, effective July 15, 1986; 1996, ch. 61, § 1, effective July 15, 1996; 1996, ch. 108, § 2, effective July 15, 1996; 2010, ch. 8, § 1, effective July 15, 2010; 2011, ch. 2, § 75, effective June 8, 2011; 2013, ch. 69, § 11, effective June 25, 2013; 2014, ch. 94, § 2, effective July 15, 2014; 2020 ch. 109, § 7, effective April 24, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 441.010 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Authority of Court.

This section pertains only to internal management of jails and does not authorize an order of court prohibiting members of the lay public from talking to prisoners. Henry v. Wilson, 249 Ky. 589 , 61 S.W.2d 305, 1933 Ky. LEXIS 581 ( Ky. 1933 ).

2.County Jail Not Mandatory.

A county fiscal court has no mandatory duty to provide a jail facility within its boundaries; counties may confine their prisoners in facilities outside their territories. Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

3.Use of Available Jail Space.

While it is readily understandable why for financial reasons county government should be permitted to make the best use possible of vacant, available jail space, this permissive use is necessarily secondary to the duties and responsibilities imposed by KRS 441.025 and this section to “provide for the incarceration of prisoners,” including “rules for the government and cleanliness of the county jail and the comfort and treatment of prisoners.” Lexington-Fayette Urban County Detention Center v. Crockett, 786 S.W.2d 869, 1990 Ky. LEXIS 16 ( Ky. 1990 ).

4.Medical Care.

State law contemplates that the authority to promulgate policies for the care of prisoners is not vested in the jailer, but in the fiscal court. Johnson v. Hardin County, 908 F.2d 1280, 1990 U.S. App. LEXIS 12163 (6th Cir. Ky. 1990 ).

While this section provides that the jailer “shall have the custody, rule and charge of the jail in his county and of all persons in the jail,” this provision does not establish the jailer as the final authority over the subject matter of medical care. Other provisions of the code suggest that it is the fiscal court of the county that establishes policy and the jailer who carries out these policies. Johnson v. Hardin County, 908 F.2d 1280, 1990 U.S. App. LEXIS 12163 (6th Cir. Ky. 1990 ).

Where the county jailer was willing to provide information concerning the period of confinement for an inmate transferred to a hospital for treatment, there was no real dispute between the parties and mandamus was not appropriate as a means to dictate which party should physically write such information on a form. Appalachian Reg'l Healthcare, Inc. v. County of Harlan, 2001 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 27, 2001), aff'd, 85 S.W.3d 607, 2002 Ky. LEXIS 188 ( Ky. 2002 ).

A county jailer was responsible for taking the necessary steps to seek indigency determinations for inmates transferred to a hospital for medical care. Appalachian Reg'l Healthcare, Inc. v. County of Harlan, 2001 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 27, 2001), aff'd, 85 S.W.3d 607, 2002 Ky. LEXIS 188 ( Ky. 2002 ).

Writ of mandamus was to be issued requiring a county jailer to complete a statutory mandate and to take the necessary steps, including assisting inmates in the necessary paperwork, to ensure that an indigency determination was made for inmates in his county who required medical attention. County of Harlan v. Appalachian Reg'l Healthcare, Inc., 85 S.W.3d 607, 2002 Ky. LEXIS 188 ( Ky. 2002 ).

Pursuant to KRS 441.045(3), the county jails were responsible for the costs of providing psychotropic medications to indigent inmates in the jail, not the Commonwealth; under KRS 441.047(1), the Commonwealth was responsible for costs associated with state-supported or state-operated psychiatric facilities. Osborne v. Commonwealth, 185 S.W.3d 645, 2006 Ky. LEXIS 50 ( Ky. 2006 ).

Although there was no express language in KRS 441.045 creating a waiver of sovereign immunity on financial claims against a metro government for medical care of inmates, the trial court should have addressed a hospital’s motion for declaratory judgment on the merits, as it related to the constitutionality of the metro government’s actions under the Fifth Amendment. Jewish Hosp. Healthcare Servs. v. Louisville/Jefferson County Metro Gov't, 270 S.W.3d 904, 2008 Ky. App. LEXIS 362 (Ky. Ct. App. 2008).

Since there is no express language in KRS 441.045 creating a waiver of immunity on all financial claims against the Metro Government for medical care of inmates, sovereign immunity was not waived in this case, and the trial court did not err in its dismissal on those grounds. Jewish Hosp. Healthcare Servs. v. Louisville/Jefferson County Metro Gov't, 270 S.W.3d 904, 2008 Ky. App. LEXIS 362 (Ky. Ct. App. 2008).

County was not liable under KRS 441.045(3) for medical treatment given to an inmate by a hospital while the inmate was released from the county jail on bail because the inmate was not in custody when he was released on bail, and thus he was not a “prisoner” during these periods for purposes of KRS 441.045(3). Hosp. of Louisa v. Johnson County Fiscal Court, 2009 Ky. App. LEXIS 53 (Ky. Ct. App. Apr. 10, 2009), rev'd, 2011 Ky. Unpub. LEXIS 30 (Ky. Mar. 24, 2011).

Medical provider was charged with performing Hopkins County's traditional governmental function of providing medical services to inmates held at the Hopkins County Detention Center, which was part of a larger state-wide corrections system. Shadrick v. Hopkins Cnty., 805 F.3d 724, 2015 FED App. 0272P, 2015 U.S. App. LEXIS 19386 (6th Cir. Ky. 2015 ).

5.Discretionary Functions.

Actions pursuant to KRS 67.080(2)(d) against fiscal court members in their individual capacities are barred by sovereign immunity because, under this section, the members’ function of adopting rules for the cleanliness and comfort of jails and the treatment of prisoners is a discretionary function. Franklin County v. Malone, 957 S.W.2d 195, 1997 Ky. LEXIS 105 ( Ky. 1997 ), overruled in part, Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896, 2001 Ky. LEXIS 198 ( Ky. 2001 ), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

Where an inmate working as part of a work program was injured and sued the county and the jailers, since the record established that the acts of the defendants complained of were performed within the scope of their discretionary authority, and there being no evidence offered from which reasonable jurors could conclude that any of the acts complained of were performed in “bad faith,” the defendants are entitled to the protection of qualified official immunity. Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

6.Negligence.

Where a pretrial detainee died in a jail cell during the course of alcohol withdrawal, plaintiffs did not establish negligence per se against deputy jailers, because a statutory violation of any regulation for the comfort and treatment of prisoners required purposeful or intentional conduct, and the record did not support the determination that each of them admitted a failure to follow the emergency medical services policy. Johney E. Finn v. Warren County, 768 F.3d 441, 2014 FED App. 0238P, 2014 U.S. App. LEXIS 17864 (6th Cir. Ky. 2014 ).

Cited in:

Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Opinions of Attorney General.

Unless the county court prohibits it, the county jailer may censor incoming mail to inmates and divulge information contained therein to the appropriate officials if there is a mutual legitimate interest to be served by divulging the contents. OAG 65-475 .

Jails of a second-class city and the county can be combined. OAG 67-64 .

The county judge, without any approval of the fiscal court, has authority to prescribe rules for government or management, and cleanliness of the county jail and the comfort and treatment of prisoners. OAG 71-127 , 74-529.

This section only pertains to the internal management of the jail, and rules issued thereunder are only administrative orders. OAG 71-127 , 74-529.

Where a city uses the county jail, the police court could recommend in a document separate from the judgment that a particular city prisoner not be allowed to be a trusty but the ultimate decision must be made by the county court. OAG 71-481 .

Where a city uses the county jail the ultimate authority in prescribing rules governing the designation of prisoners in the county jail as trusties is vested in the county court. OAG 71-481 .

A rule prescribed by a county judge is of an administrative nature and relates to internal management and, although restrictive, is not arbitrary where it provides that prisoners received by the jailer shall be relieved of all belts, suspenders and shoe laces, shall deposit valuables with the jailer to be kept separately and shall not have a radio, television or any other item except one change of clothing and two (2) magazines or books in his area of confinement. OAG 74-529 , 74-562.

Rules of a county judge may deal with the place in a jail where visitations can be held but rules restricting visiting hours and telephone calls to certain days and hours are not authorized considering the jailer has custody of prisoners and may in his reasonable discretion permit or not permit visitors or calls. OAG 74-529 , 74-562.

While the county governing body can adopt rules concerning the “inside” management of the jail, the jail is not to be operated jointly by the county jailer and the county governing body; the county governing body must remain within the intended boundaries of its authority so the jailer can exercise his responsibilities and authority. OAG 79-73 .

The terms “medical care” and “physician” do not include the practice of dentistry; therefore even if oral surgery was necessary and could not be postponed until after confinement without hazard, this section simply does not include the practice of dentistry and the certificate of a medical doctor that such oral surgery could not be postponed would be of no efficacy, since his statement of necessity would refer to dental practice, not medical practice. OAG 79-356 .

Implicit in this section is the concept that the jailer is that instrument of government which must get the prisoner to proper medical authorities and facilities. OAG 79-455 .

The county judge/executive has no authority to enforce the jail rules under this section. OAG 79-587 .

The District Court, under KRS 24A.110 , has exclusive jurisdiction of a violation of jail rules. OAG 79-587 .

Since this section is silent as to the matter of separate offenses, and since on its face it seems designed to prohibit a continuing course of conduct, where such conduct is uninterrupted by legal process, the defendant may be charged with only one offense covering a period of time up to the day the legal process is issued. OAG 79-587 .

Where an inspection of the jail reveals willful violations of the published rules, a violation would exist as to each separate offense, carrying a fine in District Court of up to $250. OAG 79-587 .

The phrase “psychological testing, evaluation or care” includes only such psychological testing, evaluation or care actually conducted by a person who is not a licensed medical doctor. OAG 79-642 .

Since the county judge/executive conducts the inspections of the jail, he would be primarily responsible for making a complaint against the jailer and his deputies for violations of the rules; the other members of the fiscal court would have that responsibility where the county judge/executive fails to seek appropriate enforcement action. OAG 80-154 .

The failure of fiscal court to adopt rules for the jail operation could possibly subject the members of that body to an indictment for willful neglect in the discharge of their duties, as prescribed in KRS 61.170 . OAG 80-154 .

The fiscal court is responsible for the maintenance of the jail, as a county building, and for establishing rules, under this section, for the internal management of the jail; the jailer is the immediate custodian of the jail and its prisoners, but the jailer’s management of the jail is designed to be regulated and supervised through the regulations of the fiscal court and the monthly inspections of the jail by the county judge/executive. OAG 80-154 .

If a prisoner is transferred from a county jail to a hospital for treatment, the sheriff in the county where the trial is to be held would have to transport him; assuming that the prisoner is in the county jail and is an indigent, this section provides only for medical care costs and, since there is nothing in the entire section that suggests that medical care includes transportation costs, the sheriff would have to bill through a documented claim, the county for reimbursement of actual and necessary expenses incurred in the transportation of the prisoner. OAG 80-434 .

Inasmuch as the county jailer has the custody of the prisoners, the jailer must treat the prisoners humanely, which includes the direct and immediate responsibility for seeing to it that the prisoners get proper medical attention, thus the county jailer has the immediate responsibility for transporting sick prisoners to the hospital and back. OAG 80-607 .

Although a county generally has responsibility only for those indigents who actually reside in that county, the medical care costs for those indigent prisoners who are residents of another county or state would also have to be borne by the county of incarceration as a necessary cost in the operation of the jail pursuant to subsection (2)(b)(now (2)(d)) of KRS 67.080 , subsection (3)(p) of KRS 67.083 , and KRS 67.130 , subject to the payment of medical care for those indigent prisoners with nonpostponable life or health threatening problems by the county, state or federal governmental unit, whose law has been violated, as provided in this section. OAG 81-213 .

Since the items of transportation and security costs incurred in transporting an indigent prisoner who is ill to medical facilities are not covered in this section, the incarcerating county must pay such expenses and, where the county is unable to pay such expenses, they may be paid out of the jailer’s fees, if available. OAG 81-213 .

KRS 44.020 does not apply to this section, under which the state must pay for nonpostponable medical care extended to an indigent prisoner in the county jail, provided the prisoner is charged with violating a state statute and is not a prisoner of the United States. OAG 81-336 .

A statement in the 1982 budget bill, Ch. 395, that payment should be provided only for emergency medical services for indigents which cannot be postponed until after the period of confinement without hazard to the needy person, and the phrase “extensive medical care,” should be disregarded as not being a constitutional part of the budget bill, as the statement was in no way necessary or germane to the budget or appropriations concept, but merely attempted to deal with legislative intent in connection with qualifying applications of the money appropriated for indigent prisoners in county jails. OAG 82-322 .

The medical care afforded the indigent does not extend to convalescent care, where such convalescent care is not necessary to preserve the health or life of the prisoner. OAG 82-322 .

Where a county houses other counties’ inmates pursuant to contract, the administration of the county’s function with regard to medical care for indigents would rest with the holding county for indigent prisoners of the contracting counties. OAG 82-334 .

Nothing in KRS Chapter 70 requires the sheriff to be a security guard for jail prisoners taken to the hospital. The responsibility for taking such prisoners to the hospital or to the doctor and guarding them is placed upon the jailer and his staff. OAG 82-403 .

The fact that a prisoner was working for the county road crew at the time he was injured made no difference as to the responsibility of the county for his medical expenses. OAG 83-225 ; OAG 83-289 .

A fiscal court, in a county where a prisoner was injured while working on the county road crew, must pay statutorily required portion of the total hospital bill under the express language of this section and the responsibility rested with the county, even though county money for that purpose was not available; the county would be subject to a lawsuit by the hospital in the event the amount was not paid. OAG 83-225 .

A city of the fourth class (like all cities) has no responsibility for providing a jail; in addition, there appear to be no statutes requiring such city to contribute to or pay for the incarceration, housing, transportation, feeding and medical treatment of persons arrested by its officers. However, where the person arrested is charged with violating a city ordinance, the city, if the prisoner is determined to be indigent under KRS 31.120 , would be responsible for paying nonpostponable medical attention cost involving such prisoner. OAG 83-299 .

While it is true that subsection (1) of this section, when viewed in isolation, is permissive as relates to the fiscal court’s prescribing rules pertaining to the internal management of the county jail, the corrections cabinet’s (now Department of Corrections) regulation requiring the fiscal court to adopt a manual of policy and administration is reasonably consistent with this chapter. OAG 83-378 .

Former KRS 441.011(1)(a)(3), when considered together with the totality of the jailer’s responsibilities in the operation of the jail, authorizes the corrections cabinet (now Department of Corrections) to require, as it did in 501 KAR 3:020, that county jailers maintain an operations manual covering jail operations and administration; this statutory authority and construction logically and reasonably emerges from the four corners of the 1982 jail legislation. If the jailers are to reasonably conform to the operational responsibilities placed upon the jailers in this legislation, the operations manual will represent an organizational and detailed tool to accomplish the legislative purpose of providing an orderly and effective jail system in Kentucky. OAG 83-378 .

Psychological or psychiatrical evaluations do not fall under the term “psychological care” as used in subsection (3) of this section. OAG 84-223 .

Where an indigent prisoner is brought to a county jail, and assuming that the particular county has the responsibility under KRS 441.025 to incarcerate the prisoner, the fiscal court of that county, through its jail budget, has to bear the cost of providing necessary medical, dental or psychological care for such prisoner, subject to the applicable exceptions under subsections (4) and (5) of this section. The fact that the jailer refused to incarcerate the prisoner when first brought in on the ground that medical attention was deemed necessary in no way militates against the responsibility of that particular county for paying the prisoner’s medical costs. OAG 84-256 .

Only after a prisoner becomes lodged in a county jail does the county potentially become liable for the costs of emergency medical treatment for the prisoner. OAG 85-54 , withdrawing OAG 81-122 , and modifying OAG 84-256 .

Jailer has the authority to photograph prisoners, without their consent, legally entrusted to his custody for the purpose of identification and in order to promote the safe-keeping and security of the jail. OAG 84-306 .

County liability for necessary medical care of an indigent person, who is hospitalized while a prisoner of the county jail, ceases when an individual’s status as a prisoner ceases. OAG 91-77 .

Research References and Practice Aids

Cross-References.

City-county board of welfare for cities of first class, control of penal institutions, KRS 98.180 .

Escape in the first degree, KRS 520.020 .

Escape in the second degree, KRS 520.030 .

Fiscal court, land for jail, purchase authorized, KRS 67.080 .

Fiscal court, sufficient jail, authority to secure, KRS 67.080 .

Jailer, general duties, KRS Ch. 71.

Regulations relating to public health aspects in operation of confinement facilities, adoption, KRS 211.920 to 211.945 .

Temporary jail, renting of, KRS 67.160 .

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

Lawson, Turning Jails Into Prisons — Collateral Damage from Kentucky’s “War on Crime.”, 95 Ky. L.J. 1 (2006/2007).

441.046. Persons in adult or juvenile detention facility to be fingerprinted — Failure of jailer to comply.

  1. All persons arrested or detained in any adult or juvenile detention facility shall be fingerprinted prior to the person’s release from custody. A copy of these fingerprints shall be transmitted to the Department of Kentucky State Police for review.
  2. The jailer shall fingerprint persons for other law enforcement agencies.
  3. The jailer shall submit the fingerprints to the Department of Kentucky State Police in the manner and at the time required by the Department of Kentucky State Police through administrative regulation.
  4. The Department of Kentucky State Police shall notify the Department of Corrections and the jailer, in writing, of the intentional failure of a jailer to comply with subsection (1), (2), or (3) of this section. Upon the first receipt of the notification of an intentional failure to comply with subsection (1), (2), or (3) of this section, the Department of Corrections shall issue a formal written warning to the jailer setting forth the consequences of continued intentional failure to comply with subsection (1), (2), or (3) of this section.
  5. If the jailer intentionally failed to comply with any fingerprinting requirements of subsection (1), (2), or (3) of this section, after being warned of such intentional failure, the Department of Corrections shall have authority to withhold the state contribution under KRS 441.206 and may require the jailer to return the state contribution funds received under KRS 441.206 for any period in which he or she intentionally failed to comply after being warned.

History. Enact. Acts 1998, ch. 606, § 30, effective July 15, 1998; 2006, ch. 182, § 29, effective July 12, 2006; 2007, ch. 85, § 323, effective June 26, 2007.

441.047. Psychiatric and similar services for criminal defendants.

  1. Whenever a prisoner confined in the county jail is in need of psychiatric or similar evaluation, treatment, or services, it shall be the responsibility of the Commonwealth to provide such evaluation, treatment, or services at the expense of the Commonwealth at the nearest state-operated or state-supported facility suitable for the provision of the required evaluation, treatment, or services at no cost to the county.
  2. Whenever a criminal defendant is in need of psychiatric, sociological, or similar evaluation in connection with the criminal proceedings in which he is a defendant it shall be the responsibility of the Commonwealth to provide the evaluation at the nearest state-operated or state-supported facility suitable for the provision of the required evaluation at no cost to the county.
  3. In the event that no suitable state-operated or state-supported facility is located within a reasonable distance, then the evaluation may be made at a suitable local facility or at the jail. In such instances a request must first be made to the Cabinet for Health and Family Services to provide the evaluation, treatment, or service unless the situation is an emergency requiring immediate attention. If the cabinet cannot provide the service or if the situation is an emergency, then local resources may be utilized.
  4. In the event that local resources are utilized in an emergency situation, or when the Cabinet for Health and Family Services is unable to provide the evaluation, treatment, or service, then the reasonable cost of providing such service, treatment, or evaluation shall be paid from the State Treasury in the same manner as other medical expenses of indigent prisoners confined in the county jail.
  5. The Cabinet for Health and Family Services shall administer the provisions of this section and shall issue such administrative regulations as necessary to carry out the provisions of this section.

History. Enact. Acts 1986, ch. 155, § 1, effective July 15, 1986; 1998, ch. 426, § 603, effective July 15, 1998; 2005, ch. 99, § 651, effective June 20, 2005.

NOTES TO DECISIONS

1.Medical Care.

Pursuant to KRS 441.045(3), the county jails were responsible for the costs of providing psychotropic medications to indigent inmates in the jail, not the Commonwealth; under KRS 441.047(1), the Commonwealth was responsible for costs associated with state-supported or state-operated psychiatric facilities. Osborne v. Commonwealth, 185 S.W.3d 645, 2006 Ky. LEXIS 50 ( Ky. 2006 ).

441.048. Screening for mental health risk issues upon admittance to detention.

Every prisoner, upon admittance to detention, shall be screened for mental health risk issues, including mental illness, suicide, intellectual disabilities, and acquired brain injury, by the personnel of the facility in which facility the prisoner is detained. Facilities have the discretion of using the telephonic behavioral health jail triage system created in KRS 210.365 . Where the triage system indicates levels of behavioral health risk, the facility holding the prisoner may consider implementing the recommended protocols for housing, supervision, and care delivery that match the level of risk.

History. Enact. Acts 2004, ch. 137, § 3, effective July 13, 2004; 2012, ch. 146, § 119, effective July 12, 2012.

441.050. Prisoner transferred to penitentiary when violence threatened — Officer’s compensation. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.540 by the Reviser of Statutes pursuant to KRS 7.136 .

441.052. Insurance coverage of prisoner — Subrogation of rights to Department of Corrections’ contractee for medical and pharmaceutical services.

  1. When a unit of local government or regional jail authority facilitates medical care for a prisoner confined in the jail, holdover, or regional jail who has not been convicted as a felon and who holds a policy, contract, or certificate of insurance coverage in any form, the insurer shall be primary for payment of medically necessary health care benefit claims provided the following conditions are met:
    1. The reimbursement shall be for medical, dental, or psychological claims that are covered benefits under the terms and conditions of the health benefit plan held by the prisoner;
    2. The reimbursement shall be applied under the terms and conditions of the health benefit plan and in the same manner as though the insured were not a prisoner; and
    3. All premiums for the health benefit plan are current.
  2. If the unit of local government, combination of units of local government, or regional jail authority has contracted with the Department of Corrections under the Department of Corrections’ contract for medical, dental, or psychological care access, or drugs, medicines, or pharmaceutical services, then the rights of the local government, combination of local governments, or regional jail authority shall be subrogated to the contract provider of such services to the Department of Corrections.
  3. If the unit of local government, combination of units of local government, or regional jail authority has, with the approval of the Department of Corrections, contracted with another pharmaceutical services provider, then the rights of the local government, combination of local governments, or regional jail authority shall be subrogated to the contract provider of medical, dental, or psychological care to the local jail for access to drugs, medicines, or pharmaceutical services to the unit of local government, combination of units of local government, or regional jail authority.
  4. If a prisoner has been transferred from a local jail, regional jail, or holdover to the Department of Corrections for medical care pursuant to KRS 441.560 , then the contract provider of drugs and pharmaceutical services or the contract provider of medical, dental, or psychological care shall be subrogated to the provider of such services to the Department of Corrections.

History. Enact. Acts 2007, ch. 128, § 3, effective June 26, 2007.

441.053. Required use of the Department of Corrections’ pharmacy plan and medical, dental, and psychological care access plan — Waivers — Ineligible contractees — Appeal — Reimbursement not to exceed Medicaid rate.

  1. Except as provided in subsection (2) of this section, each jail, regional jail, holdover, or other correctional facility owned or operated by a unit of local government, combination of units of local government, or regional jail authority shall utilize the Department of Corrections’ contract pharmacy plan.
    1. Except as provided in paragraph (b) of this subsection, the Department of Corrections shall, on a yearly basis, waive the requirement of subsection (1) of this section if the unit of local government, combination of units of local government, or regional jail authority proves to the Department of Corrections that the unit of local government, combination of units of local government, or regional jail authority has contracted with another vendor and that: (2) (a) Except as provided in paragraph (b) of this subsection, the Department of Corrections shall, on a yearly basis, waive the requirement of subsection (1) of this section if the unit of local government, combination of units of local government, or regional jail authority proves to the Department of Corrections that the unit of local government, combination of units of local government, or regional jail authority has contracted with another vendor and that:
      1. The prescription plan covers pharmacy services, drugs, and medicine in a manner which is equal to or superior to the Department of Corrections’ contract pharmacy plan; and
      2. The cost of the prescription plan is equal to or less in total cost, including the product cost and all other costs associated with the delivery of the drugs, than the Department of Corrections’ contract pharmacy plan.
    2. If a unit of local government, combination of units of local government, or regional jail authority contracts with a private provider of comprehensive health services for inmates, then that private provider may elect not to use the Department of Corrections’ contract pharmacy plan and a waiver under this subsection shall not be required.
  2. Except as provided in subsection (4) of this section, each jail, regional jail, holdover, or other correctional facility owned or operated by a unit of local government, combination of units of local government, or regional jail authority shall utilize the Department of Corrections’ contract medical, dental, and psychological care access plan, and the administrative service fee for the plan shall be paid by the Department of Corrections subject to the limits of 2007 Ky. Acts ch. 128, sec. 5.
  3. The Department of Corrections may, on a yearly basis, waive the requirement of subsection (3) of this section if the unit of local government, combination of units of local government, or regional jail authority proves to the Department of Corrections that the unit of local government, combination of units of local government, or regional jail authority has contracted with another vendor and that:
    1. The medical, dental, and psychological care access plan provides services and access which is equal to or superior to the Department of Corrections’ contract medical, dental, and psychological care access plan; and
    2. The cost of the medical, dental, and psychological care access plan is equal to or less in cost than the Department of Corrections’ contract medical, dental, and psychological care access plan.
    1. An entity, corporation, or organization of any kind that assists the Department of Corrections in managing claims or evaluating an application for a waiver under subsection (2) or (4) of this section shall not seek or be awarded a contract to provide: (5) (a) An entity, corporation, or organization of any kind that assists the Department of Corrections in managing claims or evaluating an application for a waiver under subsection (2) or (4) of this section shall not seek or be awarded a contract to provide:
      1. Medical care;
      2. Dental care;
      3. Psychological care;
      4. Pharmaceutical products; or
      5. Any other health care service;

        to inmates housed in any jail operated by any unit of local government, combination of units of local government, or regional jail authority.

    2. The prohibition in this subsection shall also apply to the entity’s, corporation’s, or organization of any kind’s:
      1. Owners;
      2. Incorporators;
      3. Officers;
      4. Employees; or
      5. Other person who has a financial interest in the organization.
    3. Nothing in this subsection shall be construed to prohibit or limit the ability of a state university to provide health care services to prison populations.
  4. The provisions of subsection (5) of this section shall not apply if an entity, corporation, organization, or person referenced in subsection (5)(b) of this section is:
    1. Already a party to a contract with any consolidated local government or urban-county government and is currently engaged in providing the services or products referenced in subsection (5)(a) of this section; and
    2. There is no material change to the existing contract with any consolidated local government or urban-county government within a reasonable time period;

      prior to seeking or being awarded a contract with the department to manage claims or evaluate an application for a waiver under subsection (2) or (4) of this section. No provision of this subsection shall be construed to prohibit or limit the ability of a state university to provide health care services to prison populations.

  5. A unit of local government, combination of units of local government, or regional jail authority may appeal a decision of the Department of Corrections denying a waiver under subsection (2) or (4) of this section to the secretary of justice and public safety.
  6. No program specified in this section shall require or permit reimbursement at a rate in excess of the Kentucky Medicaid program for the same or similar services or products but may permit a lesser rate of reimbursement.

HISTORY: Enact. Acts 2007, ch. 128, § 4, effective June 26, 2007; 2010, ch. 64, § 1, effective July 15, 2010; 2011, ch. 2, § 76, effective June 8, 2011; 2015 ch. 111, § 1, effective June 24, 2015.

Compiler’s Notes.

2007 Ky. Acts ch. 128, § 5, provides:

  1. The Secretary of the Justice Cabinet shall have the authority to declare a state of extraordinary circumstances upon a finding that the appropriations to the Department of Corrections for the provision of medical care of prisoners in county jails pursuant to Sections 2, 3, and 4 of this Act, for the provision of drugs, medications, and similar items for prisoners in county jails pursuant to Sections 2, 3, and 4 of this Act and   KRS 441.045 , and for the medical care of county jail prisoners who are transferred to the Department of Corrections pursuant to Section 2 of this Act, are insufficient to pay the expenses authorized by either section. Upon certification and notwithstanding 2006 Ky. Acts Chapter 252, Part III, General Provisions, 5. Appropriations Expenditure Purpose and Transfer Restrictions, the secretary shall be authorized to transfer general fund moneys, restricted funds, or federal funds, with the approval of the State Budget Director, to the extent funds are available and not otherwise obligated to carry out the provisions of KRS Chapters 196, 197, and 441 in the 2006-2008 fiscal biennium from other budget units within the cabinet to the Department of Corrections to address the immediate needs of a program authorized by Section 2, 3, or 4 and   KRS 441.045 of this Act. The transfer of any funds pursuant to this section shall be subject to the provisions and notification requirements of   KRS 48.630 . Moneys transferred pursuant to this paragraph shall be placed in a trust and agency account to be used for the purpose set forth in this paragraph.
  2. If, after transferring funds within the cabinet, the secretary finds that extraordinary needs relating to medical care of county jail prisoners still exist, the secretary may then request approval from the Governor for any amount of expenditures not covered by funds transferred from other agencies within the cabinet, not to exceed $1,500,000, for catastrophic, medical care, and medical care pursuant to Section 2 of this Act and KRS 441.045 to request that expenditures be deemed a necessary governmental expense. Upon approval by the Governor, funds not to exceed $1,500,000 shall be transferred from the General Fund Surplus (KRS 48.700 ) or the Budget Reserve Trust Fund Account (KRS 84.705). These funds shall be transferred only upon certification of need by the Secretary of the Justice Cabinet to the Secretary of the Finance and Administration Cabinet and upon approval by the Governor. Moneys appropriated pursuant to this paragraph shall be placed in a trust and agency account to be used for the purpose set forth in this paragraph.
  3. If, after transferring funds within the cabinet, the secretary finds that extraordinary needs relating to medical care of county jail prisoners relating to the Department of Corrections medical, dental, and psychological care access plan pursuant to Section 4 of this Act still exist, the secretary may then request approval from the Governor for any amount of expenditures not covered by funds transferred from other agencies within the cabinet, not to exceed $1,000,000, and to request that expenditures be deemed a necessary governmental expense. Upon approval by the Governor, funds not to exceed $1,000,000 shall be transferred from the General Fund Surplus (KRS 48.700 ) or the Budget Reserve Trust Fund Account (KRS 84.705). These funds shall be transferred only upon certification of need by the Secretary of the Justice Cabinet to the Secretary of the Finance and Administration Cabinet and upon approval by the Governor. Moneys appropriated pursuant to this paragraph shall be placed in a trust and agency account to be used for the purpose set forth in this paragraph.
  4. The cabinet shall submit monthly updates to the Interim Joint Committees on Appropriations and Revenue and Judiciary on expenditures made pursuant to these paragraphs.”

Legislative Research Commission Notes.

(6/26/2007). 2007 Ky. Acts chs. 24, 47, and 85 instruct the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in 2007 legislation confirming the reorganization of the executive branch. Such a correction has been made in this section.

441.055. Regulation of jails — Adoption and revision of standards — Classification of jails.

  1. The Department of Corrections shall for those counties which elect to house state prisoners in their jail:
      1. Adopt the recommendations of the Jail Standards Commission created pursuant to Executive Order Number 81-1026 and promulgate regulations pursuant to KRS Chapter 13A establishing minimum standards for jails. These standards shall include but not be limited to rules governing the following areas: (a) 1. Adopt the recommendations of the Jail Standards Commission created pursuant to Executive Order Number 81-1026 and promulgate regulations pursuant to KRS Chapter 13A establishing minimum standards for jails. These standards shall include but not be limited to rules governing the following areas:
        1. Health and safety conditions;
        2. Fire safety;
        3. Jail operations, recordkeeping, and administration;
        4. Curriculum of basic and continuing annual training for jailers and jail personnel;
        5. Custody, care, and treatment of prisoners;
        6. Medical care; and
        7. Jail equipment, renovation, and construction.
      2. These minimum standards shall specifically allow for:
        1. Provision of required documents to prisoners through electronic format;
        2. Confidential prisoner access to attorneys through unmonitored phone lines in non-contact visitation areas;
        3. Measures to prevent receipt of prisoner mail containing intoxicants, including in fabricated legal mail; and
        4. Delivery of mail received from the court, an attorney of record, or a public official to the prisoner via an electronic copy provided on a secure, personal account after opened and inspected in the presence of the prisoner;
    1. Develop a jail standards review process, which shall include the participation of persons knowledgeable of jail operations to review and amend the standards as necessary. The jail standards shall be reviewed no later than December 31, 1992, and at least every two (2) years thereafter. Fifty percent (50%) of the participants in the review process shall be appointed from persons representing county interests and fifty percent (50%) shall be appointed from persons representing state interests; and
    2. Provide technical assistance and consultation to local governments in order to facilitate compliance with standards.
  2. The department shall, for those counties that elect not to hold state prisoners in their jails, adopt the recommendations of the Jail Standards Commission and promulgate administrative regulations pursuant to KRS Chapter 13A to establish minimum standards for those jails. These standards shall be limited to health and life safety.
  3. All minimum standards promulgated by the department applying to jails shall include requirements for adequate nutrition for pregnant prisoners, an adequate number of hygiene products for female prisoners, and an appropriate number of undergarments for female prisoners.
  4. The department may establish classifications of jails based on the maximum permissible period of incarceration or other criteria and promulgate standards for each class of jail.

History. Enact. Acts 1982, ch. 385, § 6, effective July 1, 1982; 1992, ch. 211, § 114, effective July 14, 1992; 1992, ch. 262, § 1, effective July 14, 1992; 1996, ch. 108, § 3, effective July 15, 1996; 1998, ch. 102, § 1, effective July 15, 1998; 2014, ch. 132, § 21, effective July 15, 2014; 2018 ch. 115, § 1, effective July 14, 2018; 2021 ch. 138, § 1, effective June 29, 2021.

Compiler’s Notes.

This section was formerly compiled as KRS 441.011 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Legislative Research Commission Notes.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women’s Dignity in the Justice System Act. This statute was amended in Section 1 of that Act.

(7/14/92). This section was amended by two 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250 .

(10/5/90, restored 11/2/99). Pursuant to KRS 7.136(1), “KRS Chapter 13A” was substituted for prior references to “KRS Chapter 13” in this statute. The sections in KRS Chapter 13 were repealed by 1984 Ky. Acts ch. 417, sec. 36, and KRS Chapter 13A was created in that same chapter of the 1984 Ky. Acts.

NOTES TO DECISIONS

Cited in:

Franklin County Fiscal Court v. Stewart, 757 S.W.2d 194, 1988 Ky. App. LEXIS 27 (Ky. Ct. App. 1988); Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

Opinions of Attorney General.

KRS 441.006 (now KRS 441.025 ) implicitly gives the fiscal court the authority to determine the prisoner capacity of the local jail in order to intelligently plan for the incarceration of all prisoners subject to the local courts. The number of prisoners would be subject to jail standards, emerging from the jail standards commission pursuant to this section, as adopted by the Corrections Cabinet (now Department of Corrections), and other statutory requirements relating to detention facilities. OAG 82-421 .

Aside from the fiscal court’s statutory duty of meeting the minimal jailer salary and other standards, the fiscal court is required to, in consultation with the jailer, adopt an operating budget for the jail. Where a jailer has good reason to believe that a fiscal court has acted arbitrarily in establishing the operating budget for the jail, and the jail operation has no more money for that year, he may seek redress in the circuit court. OAG 82-498 .

While it is true that KRS 441.010(1) (now KRS 441.045 ), when viewed in isolation, is permissive as relates to the fiscal court’s prescribing rules pertaining to the internal management of the county jail, the corrections cabinet’s (now Department of Corrections) regulation requiring the fiscal court to adopt a manual of policy and administration is reasonably consistent with this chapter. OAG 83-378 .

Subdivision (1)(a)(3) of this section, when considered together with the totality of the jailer’s responsibilities in the operation of the jail, authorizes the corrections cabinet (now Department of Corrections) to require, as it did in 501 KAR 3:020, that county jailers maintain an operations manual covering jail operations and administration; this statutory authority and construction logically and reasonably emerges from the four (4) corners of the 1982 jail legislation. If the jailers are to reasonably conform to the operational responsibilities placed upon the jailers in this legislation, the operations manual will represent an organizational and detailed tool to accomplish the legislative purpose of providing an orderly and effective jail system in Kentucky. OAG 83-378 .

Jailer has the authority to photograph prisoners, without their consent, legally entrusted to his custody for the purpose of identification and in order to promote the safe-keeping and security of the jail. OAG 84-306 .

Judges of the judicial system would have to observe any existing jail policy and procedure, issued by the Corrections Cabinet (now Department of Corrections) or the county jailer, relating to visitation of county jail inmates; however, where a judge of a court, in exercising the court’s sound judicial discretion, believes that justice in a particular case would require the court’s imposing some special rule as to visitation of a particular prisoner whose case is pending before that court, the court may so impose the special rule. OAG 84-331 .

441.057. Administrative regulations governing juvenile holding facilities. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 350, § 141, effective April 10, 1988; 1992, ch. 211, § 115, effective July 14, 1992) was repealed by Acts 1998, ch. 443, § 29, effective July 15, 1998.

441.060. Expense of keeping and dieting prisoner transferred to penitentiary or reformatory — Who pays. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.550 by the Reviser of Statutes pursuant to KRS 7.136 .

441.064. Responsibilities of department — Jail inspections — Access to jails — Reports.

  1. The department shall employ the jail consultants, inspectors, and other employees necessary to administer and enforce the provisions of KRS 441.055 to 441.075 .
  2. The department shall inspect each jail biannually and may inspect jails more frequently.
  3. The department shall be granted access at any reasonable time to any jail facility or part of any jail facility and shall be granted access to all books, records, and data pertaining to any jail which the department deems necessary for the administration and enforcement of the provisions of KRS 441.055 to 441.075 .
  4. Following an inspection of a jail, the department shall make notification of the inspection by certified or electronic mail of any deficiencies which are discovered and documented. If the deficiencies are related to health or safety, the notification shall be sent within ten (10) working days, excluding weekends and holidays. The department shall submit an annual written report of the findings of its inspections and the condition of the jail to:
    1. The jailer and the fiscal court in counties where the jail is governed by the county;
    2. The jail administrator and the governing authority for a jail governed by an urban-county or metro government; and
    3. The jail administrator, the regional board authority, and the fiscal courts of the counties represented in counties where the jail is governed by a regional jail board.

HISTORY: Enact. Acts 1982, ch. 385, § 7, effective July 1, 1982; 1992, ch. 211, § 116, effective July 14, 1992; 1992, ch. 262, § 2, effective July 14, 1992; 1996, ch. 108, § 4, effective July 15, 1996; 1998, ch. 102, § 2, effective July 15, 1998; 2010, ch. 107, § 7, effective July 15, 2010; 2015 ch. 126, § 4, effective June 24, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 441.012 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

Cited in:

Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.065. Use and administration of jail in county containing city of first class, after establishment of workhouse or penal farm. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 232) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

Legislative Research Commission Notes.

This section was amended by 1982 Acts Chapter 385, Section 43 and repealed by 1982 Acts Chapter 428, Section 4. Pursuant to KRS 446.260 , the repeal prevails.

441.067. Canteen for prisoners — Books of accounts. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.135 by the Reviser of Statutes pursuant to KRS 7.136 .

441.068. Working of prisoners at community service related projects — Eligibility — Place of working. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.125 by the Reviser of Statutes pursuant to KRS 7.136 .

441.070. Fiscal court or urban-county council may establish workhouse. [Repealed.]

Compiler’s Notes.

This section (4867: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 15, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.075. Violation of regulations — Orders and sanctions — Procedures for orders.

  1. If the department finds that a violation of its regulations, or the laws or other state regulations pertaining to the protection of persons and property, exists in any jail which holds state prisoners, the commissioner of the department, or his or her designee, shall order that the violation be corrected immediately. In order to enforce an order made pursuant to this subsection, the commissioner may order the jail to cease housing state prisoners.
  2. If the department finds a violation of the health and life safety regulations in KRS 441.055 pertaining to the protection of persons or property, exists in any jail, the commissioner of the department, or his or her designee, shall order that the violations be corrected immediately. In order to enforce an order made pursuant to this subsection, the commissioner may order the jail closed until the violations are corrected.
  3. No jail that was ordered by the Department of Corrections prior to July 15, 1996, to be closed or to operate other than as a full-service facility shall operate as a full-service facility to hold state prisoners unless it is granted a certificate of occupancy by the Department of Corrections. In order to enforce an order made pursuant to subsection (1) of this section, the commissioner may:
    1. Order the jail or portions thereof to be vacated and closed until the violation is eliminated.
    2. Order the jail to cease to house certain classes of prisoners or limit the length of time prisoners or certain classes of prisoners may be housed in the jail.
    3. Order the state contribution made pursuant to KRS 441.206 to be used, in whole or in part, to contract with another county for the incarceration of prisoners.
  4. An order issued under this section shall be in writing, incorporating the findings of the department and other agencies, if appropriate, and shall be delivered, electronically mailed, or mailed by certified mail, return receipt requested, to the county jailer and county judge/executive within twenty-four (24) hours of the issuance of the order. The county jailer or county judge/executive may, within seventy-two (72) hours of receipt of the notification, request in writing a public hearing before the commissioner of the department or his or her designee on the matters covered by the order. Upon the hearing, the commissioner of the department or his or her designee may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers. The commissioner of the department or his or her designee may issue, modify, or repeal the order at the conclusion of the hearing.

History. Enact. Acts 1982, ch. 385, § 8, effective July 1, 1982; 1984, ch. 415, § 3, effective July 13, 1984; 1990, ch. 497, § 29, effective July 13, 1990; 1992, ch. 211, § 117, effective July 14, 1992; 1992, ch. 262, § 3, effective July 14, 1992; 1996, ch. 108, § 5, effective July 15, 1996; 2010, ch. 107, § 8, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 441.013 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Legislative Research Commission Notes.

(7/14/92). This section was amended by two 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250 .

NOTES TO DECISIONS

Cited in:

Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.080. Joint construction, management and use of workhouse. [Repealed.]

Compiler’s Notes.

This section (4876, 4878: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 16, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.085. Violation of regulations prohibited — Department may seek court order — Civil contempt penalty.

  1. No person responsible for the supervision or maintenance of a jail shall knowingly cause or permit the facility to be operated in violation of the regulations and laws of this state pertaining to the health, safety, security, and operation of jails.
  2. When the department, pursuant to KRS 441.075 , orders a county jailer, if it is determined he is responsible, or the fiscal court, to correct or eliminate a violation of any state regulation or law pertaining to the operations and maintenance of jails and the county jailer or fiscal court does not take corrective action to the satisfaction of the department within the time specified in the department’s order, the commissioner of the department or his designee may request the Franklin County Circuit Court to enforce the orders of the department. Any person who refuses to obey the orders of the court shall be held in civil contempt.

History. Enact. Acts 1982, ch. 385, § 9, effective July 1, 1982; 1992, ch. 211, § 118, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 441.014 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.090. Manager of workhouse — Appointment — Duties. [Repealed.]

Compiler’s Notes.

This section (4868: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 6, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.095. Appeals.

Appeals from any order issued pursuant to KRS 441.055 to 441.065 shall be granted as a matter of right, and shall be taken to the Franklin County Circuit Court within thirty (30) days from the date the order is issued by the department.

History. Enact. Acts 1982, ch. 385, § 10, effective July 1, 1982; 1992, ch. 211, § 119, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 441.015 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

441.100. Leasing out workhouse — Duties of lessee. [Repealed.]

Compiler’s Notes.

This section (4870) was repealed by Acts 1976 (1st Ex. Sess.), ch. 12, § 19, effective January 1, 1978.

441.105. Reports to fiscal court and department by jailer.

The jailer shall:

  1. Submit a quarterly report to the fiscal court concerning the physical condition of the jail, the number of jail personnel and personnel needs, and other matters requested by the fiscal court.
  2. Submit a monthly report to the department in electronic format, on forms supplied by the department, containing but not limited to the following information on each prisoner:
    1. The unit of government whose law the prisoner is charged with violating, the statute or ordinance the prisoner is charged with violating, and whether the charge is a felony or misdemeanor;
    2. The status of the prisoner, whether pending trial or post conviction;
    3. The age and sex of the prisoner; and
    4. The county responsible for the incarceration of the prisoner.

History. Enact. Acts 1982, ch. 385, § 11, effective July 1, 1982; 1992, ch. 211, § 120, effective July 14, 1992; 2010, ch. 107, § 9, effective July 15, 2010.

Compiler’s Notes.

This section was formerly compiled as KRS 441.016 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.110. Physician for workhouse. [Repealed.]

Compiler’s Notes.

This section (4872: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 17, effective January 1, 1978), was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.111. Possession and use of cell phones by jailer, deputy jailers, attorneys, and non-lawyer assistants.

Jailers in a county jail or regional jail shall create policies governing possession and use of cell phones within their jails by the jailer, deputy jailers, attorneys, and non-lawyer assistants as defined in KRS 31.100 . These policies shall be clearly stated and posted in the entry of the jail and copies shall be made available to attorneys and non-lawyer assistants, upon request. These policies shall allow, but may provide reasonable conditions upon, attorneys to use cell phones in connection with their professional services in a detention facility.

HISTORY: 2018 ch. 190, § 2, effective July 14, 2018.

441.115. Jail staff training program — Jailer’s training expense allowance — Eligibility for allowance.

  1. For the purpose of raising the level of competence of jailers and jail personnel, the department shall maintain a jail staff training program to provide training for jailers and jail personnel consistent with the standards promulgated pursuant to KRS 441.055 and shall keep records of jailers and jail personnel who satisfactorily complete basic and annual continuing education. The training program shall include training on communicable diseases. A curriculum advisory committee composed of jailers, their representatives, and recognized professionals in the field of jail administration shall advise the department concerning the training needs of jailers and jail personnel. The jail staff training program shall be directed and staffed by knowledgeable persons who have sufficient experience, training, and education in jail operations. The department shall not charge a fee for training jailers, their deputies, or jailers-elect.
  2. Beginning in August, 1982, each jailer shall receive an expense allowance to help defray the costs of his participation in the jail staff training program. The expense allowance shall be in the amount of three hundred dollars ($300) per month payable out of the State Treasury. Expense allowance payments shall be discontinued if the jailer fails to satisfactorily complete annual continuing training. Expense allowance payments shall be resumed following a discontinuance for failure to satisfactorily complete basic or annual training only upon the jailer’s satisfactory completion of the training.
  3. The allowance authorized in subsections (2) and (4) of this section shall be considered as operating expenses of the jailer’s office and shall not be considered as part of his compensation. Jailers shall not be required to keep records verifying the expenditures from the allowance provided by the state.
  4. In order to receive the expense allowance for their first year in office, jailers who have been elected to office for the first time, shall, before taking office, successfully complete a training program designed for new jailers and conducted by the personnel of the jail staff training program. This provision shall not apply if the jailer-elect is ill and unable to complete the training before taking office. In such cases, the jailer-elect shall successfully complete a new jailer training program during his first year in office in order to receive the expense allowance. The county or urban-county government in which the jailer-elect serves shall pay out of the jail budget, once he takes office, all necessary and reasonable travel expenses incurred by the jailer-elect in attending the new jailer training program.
  5. All jailers shall successfully complete the training required. If a jailer does not successfully complete the required training within the time specified, he or she shall not receive the expense allowance specified in subsection (2) of this section until he or she successfully completes the required training.

HISTORY: Enact. Acts 1982, ch. 385, § 12, effective July 1, 1982; 1984, ch. 141, § 15, effective July 13, 1984; 1984, ch. 415, § 15, effective July 13, 1984; 1986, ch. 436, § 1, effective July 15, 1986; 1990, ch. 443, § 34, effective July 13, 1990; 1992, ch. 211, § 121, effective July 14, 1992; 1998, ch. 426, § 604, effective July 15, 1998; 2005, ch. 99, § 652, effective June 20, 2005; 2007, ch. 85, § 324, effective June 26, 2007; 2015 ch. 126, § 5, effective June 24, 2015.

Compiler’s Notes.

This section was formerly compiled as KRS 441.017 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Opinions of Attorney General.

The first payment for an expense allowance provided for in subsection (2) of this section was for the month of August, 1982 and this is true even though § 53 of Acts 1982, Chapter 385 provided that the section should become effective July 1, 1982. OAG 82-585 .

This section places upon the Corrections Cabinet (now Department of Corrections) the responsibility for maintaining a local corrections training program for jailers and jail staff, and the expense allowance to jailers relates exclusively to local corrections training programs maintained by the Corrections Cabinet; however, there is nothing prohibiting any jailer’s pursuing additional instruction for jailers provided by a non-Kentucky source. OAG 83-273 .

The Corrections Cabinet (now Department of Corrections) can require the jailers who are receiving training to bear a portion of the cost by using their training allowance; in this way the express purpose of the allowance is being subserved. OAG 83-334 .

In the event the jailer takes the training but refuses or fails to pay the cost charged against him, the Corrections Cabinet (now Department of Corrections) can ask the Finance and Administration Cabinet to take steps to stop the monthly training allowance, to the extent of training charges owed to Corrections, until the training charge is paid by the particular jailer. OAG 83-334 .

Even though the jailer has taken the required training course, the Corrections Cabinet (now Department of Corrections) may legally refuse to issue the certificate of training in the event the jailer has not paid the training charge assessed against him. OAG 83-334 .

The expense allowance provided for in subsection (2) of this section is not broken down so as to isolate some part of the program, such as the youth center, but rather the allowance is for the entire detention operation. OAG 84-199 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, d, (2) at 1103.

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.120. Place prisoners to work — County judge/executive to designate. [Repealed.]

Compiler’s Notes.

This section (1379-1: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 7, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.125. Working of prisoners at community-service-related projects — Written policy — Prisoner’s status not employment.

    1. As used in this section, “community-service-related project” means a project involving work for: (1) (a) As used in this section, “community-service-related project” means a project involving work for:
      1. The Commonwealth or an agency of the Commonwealth;
      2. A county, urban-county, charter county, city, special district, or an agency of any of these entities; or
      3. A nonprofit, charitable, or service organization in projects that serve a public purpose.
    2. Work on a community-service-related project shall not confer private benefit on a person except as may be incidental to the public benefit.
  1. Each jailer shall write a policy governing prisoners working on community-service-related projects, which shall be submitted to the fiscal court for approval. The written policy shall state at a minimum:
    1. Which type of prisoner, if any, shall be assigned to which type of work, taking into account the physical and mental abilities of prisoners and security of the jail and the general public;
    2. That no prisoner shall be assigned to unduly hazardous work that would endanger the life or health of the prisoner or others; and
    3. That any prisoner may, for a valid medical reason, decline to work on community-service-related projects. No prisoner shall be punished or otherwise penalized for this refusal.
  2. A prisoner shall not begin work on a particular community-service-related project without the approval of the director of the relevant entity referred to in subsection (1)(a) of this section, or the director’s designee.
  3. Participation in community-service-related projects shall not be deemed employment for any purpose, and a prisoner shall not be deemed an employee or agent of the entity for which he or she performs the community service work.

HISTORY: Enact. Acts 1982, ch. 428, § 2, effective July 15, 1982; 2000, ch. 384, § 1, effective July 14, 2000; 2018 ch. 103, § 1, effective July 14, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 441.068 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Immunity Granted.

Where an inmate working as part of a work program was injured and sued the county and the jailers, since the record established that the acts of the defendants complained of were performed within the scope of their discretionary authority, and there being no evidence offered from which reasonable jurors could conclude that any of the acts complained of were performed in “bad faith,” the defendants were entitled to the protection of qualified official immunity. Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

2.Applicability.

There was no reversible error in the circuit court’s conclusion that subsection (2)(b) was applicable under the facts of the case because application of the statute was but one of several reasons supporting the circuit court’s decision and was not essential to its fundamental analysis. Commonwealth v. Russell, 578 S.W.3d 747, 2019 Ky. App. LEXIS 112 (Ky. Ct. App. 2019).

Opinions of Attorney General.

The jailer is required to operate the community center which has been designated as the place for prisoners to perform community service work by the county judge/executive; if he refuses to operate the center, he could be subjected to an action of claimed malfeasance in office or willful neglect in the discharge of official duties, pursuant to KRS 61.170 . OAG 83-245 .

Where prisoners are put to work on community service projects, the jailer retains custody of such prisoners and has control over them in the place of work designated by the county judge/executive for that work, and subject to the county judge/executive’s order as to the specified manner of working the prisoners; there is nothing in KRS 431.140 (now repealed) or this section indicating that the jailer is to relinquish custody of prisoners assigned to community service related work projects. OAG 83-245 .

A county and a city can make a contractual agreement whereby the city furnishes lunch to those county prisoners who are authorized to perform work for the city under the terms of this section. OAG 84-12 .

Persons employed by a housing agency on a voluntary work release program are not subject to workers’ compensation. OAG 84-120 .

Where a prisoner working on community service related project violates any regulation or internal rule, it should be left to the fiscal court policy as to the further working of the prisoner on such service project. OAG 84-306 .

If a prisoner given a work release walks off the job, or returns to jail in violation of any of the work release conditions or rules or is in violation of any other law, the jailer can detain such prisoner after taking it up with the sentencing court and getting the court’s permission to so detain the prisoner up to five (5) days. OAG 84-306 .

441.127. Service credits for work in community service program or within jail, for receipt of GED or high school diploma, for participation in drug treatment program, for exceptionally meritorious service, or for good behavior — Withdrawal of earned credits for misconduct.

  1. The jailer or correctional services department shall grant sentence credits to inmates confined in the county jail on conviction of misdemeanor charges.
  2. Credit, if granted, shall be uniform and shall be based on the following:
    1. For labor performed without the jail in a community service program or within the jail for the maintenance of the jail or for the operation of jail services such as food service:
      1. For every eight (8) full hours of work, one (1) sentence credit shall be earned; and
      2. For every five (5) of sentence credits earned, one (1) day of the sentence to be served by the inmate shall be deducted;
    2. For successfully receiving a general equivalency diploma or a high school diploma, a service credit of ninety (90) days shall be earned;
    3. For each day an inmate participates in a drug treatment program or other evidence-based program approved by the department, a service credit of one (1) day shall be earned;
    4. For performing exceptionally meritorious service, performing duties of outstanding importance in connection with the jail’s operations and programs, or performing acts of exceptional service during times of emergency, an amount not to exceed seven (7) days per act shall be earned, to be determined by the jailer or chief executive of the jail for the conduct of the inmate; and
    5. For good behavior, an amount not to exceed ten (10) days shall be earned for each month served, to be determined by the jailer or chief executive of the jail for the conduct of the inmate.
  3. Sentence credits shall be deducted from the maximum expiration date of the sentence.
  4. If an inmate violates the rules of the jail or engages in other misconduct the jailer or correctional services department may withdraw sentence credits earned by the inmate. The jailer or correctional services department shall maintain a list of offenses and penalties for the ten (10) most common offenses and rule violations.

HISTORY: Enact. Acts 1996, ch. 57, § 1, effective July 15, 1996; 2016 ch. 101, § 3, effective July 15, 2016; 2018 ch. 115, § 11, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). Pursuant to 2018 Ky. Acts ch. 115, sec. 12, that Act shall be known as the Women's Dignity in the Justice System Act. This statute was amended in Section 11 of that Act.

441.130. Cost of keeping working prisoners — Who pays — Housing for work crews. [Repealed.]

Compiler’s Notes.

This section (1379-2, 1379-3: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 8, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.135. Canteen for prisoners — Use of profits — Books of accounts — Allowable expenditures — Jail canteen account balance — Calculation.

  1. The jailer may maintain a canteen for the benefit of prisoners lodged in the jail and may assign such jail employees and prisoners to operate the canteen as are necessary for efficient operation.
  2. All profits from the canteen shall be used:
    1. For the benefit and to enhance the well-being of the prisoners; or
    2. To enhance safety and security within the jail.

      The jailer shall keep books of accounts of all receipts and disbursements from the canteen and shall annually report to the county treasurer on the canteen account.

  3. Allowable expenditures from a canteen account shall include but not be limited to recreational, vocational, and medical purposes.
  4. Except in counties containing an urban-county government or a consolidated local government, in order to ensure adequate, ongoing funding of jail canteen accounts, beginning July 1, 2007, and on the first day of each fiscal year thereafter, the jail canteen account balance shall at least equal the following amounts based on the average daily inmate population of the jail:
    1. 300 prisoners or more  . . . . .  $6,000
    2. 200 to 299 prisoners  . . . . .  $4,000
    3. 100 to 199 prisoners  . . . . .  $2,000
    4. 99 or fewer prisoners  . . . . .  $1,000
  5. For purposes of calculating the amount to be transferred to the jail canteen account, the average daily number of inmates shall be equal to the average daily inmate population of the jail in the immediately preceding fiscal year.

History. Enact. Acts 1982, ch. 127, § 1, effective July 15, 1982; 1998, ch. 171, § 1, effective July 15, 1998; 2006, ch. 147, § 1, effective July 12, 2006; 2007, ch. 64, § 1, effective June 26, 2007; 2018 ch. 7, § 1, effective March 2, 2018.

Compiler’s Notes.

This section was formerly compiled as KRS 441.067 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

441.137. Balance in inmate account or prisoner canteen account — Return of balance — Abandoned moneys.

  1. For any moneys in an inmate account or prisoner canteen account of a jail that are not returned to a prisoner at the time he or she is released from the jail, the jailer shall transmit a check for the balance of the moneys by first class mail to the released prisoner at his or her last known address. If the check is returned as undeliverable, then the jailer shall attempt to contact the prisoner at a telephone number on file, if any, to arrange the return of the moneys. If the moneys are not claimed after the jailer fulfills the requirements of this subsection, the moneys shall be presumed abandoned after one (1) year after the date the check is mailed or, if an attempt to call is made, the date of the phone call.
  2. Any abandoned moneys as set out in subsection (1) of this section shall, if in a prisoner account, be transferred into the canteen account if these are two (2) different accounts, or shall remain in the canteen account and be available for the purposes set out in KRS 441.135 .

History. Enact. Acts 2012, ch. 32, § 1, effective July 12, 2012.

441.140. Rules governing working prisoners. [Repealed.]

Compiler’s Notes.

This section (1379-5, 4869: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 9, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.141. Voluntary chaplain program.

  1. Each local jailer is encouraged to work with local religious leaders to provide a voluntary chaplain program.
  2. An inmate shall be allowed at least one (1) visit per week by a minister, priest, or rabbi of the inmate’s choice.

History. Enact. Acts 1998, ch. 606, § 132, effective July 15, 1998.

441.145. Access to religious publications or instructional materials.

Subject to restrictions for violations of rules, an inmate of a facility operated by or under contract to a local jail who requests religious publications or other religious instructional materials may receive them provided:

  1. They have been purchased by or donated to the inmate; or
  2. Donated to the institution for use by inmates; and
  3. Do not constitute a threat to the security of the institution.

History. Enact. Acts 1998, ch. 606, § 134, effective July 15, 1998.

441.146. Operation of reentry center for eligible inmates.

  1. A local correctional facility, jail, or regional jail may, with the approval of the Department of Corrections, operate a reentry center. Reentry centers established pursuant to this section shall:
    1. Employ a program coordinator responsible for oversight of the reentry center;
    2. Offer residents at least one (1) vocational training program approved by the Department of Corrections;
    3. Offer residents at least two (2) other evidence-based programs approved by the Department of Corrections;
    4. Review each participant’s case with a certified alcohol and drug counselor as defined in KRS 309.080 ;
    5. Require residents to participate in family outreach and community involvement programs;
    6. Require residents to seek or maintain employment in the community. The reentry center shall require ten percent (10%) of the resident’s income to be deposited into a savings account, shall require fifteen percent (15%) of the resident’s income to be directed to payment of restitution if applicable, and may charge each resident a fee of not more than twenty percent (20%) of the resident’s income; and
    7. Report data as required by the Department of Corrections in order to allow evaluation of the effectiveness of the reentry center.
  2. A person is eligible for placement in a reentry center if he or she has less than twelve (12) months until the expected expiration of his or her sentence and is:
    1. A state inmate eligible for placement in a jail pursuant to KRS 532.100 ;
    2. A Class B felon who is classified as low risk by the Department of Corrections; or
    3. A county inmate in the jail operated by the political subdivision which operates the reentry center.
  3. Residents may be assigned to a reentry center by:
    1. Administrative classification by the Department of Corrections;
    2. Administrative decision of the jailer for inmates of the jail;
    3. The court, as an alternative sentence; or
    4. The Parole Board, as a condition of parole or as a sanction for violation of conditions of parole.

History. 2017 ch. 158, § 88, effective June 29, 2017; 2020 ch. 109, § 8, effective April 24, 2020.

441.148. Administrative regulations prescribing standards for operation of reentry centers.

  1. The Department of Corrections shall, by administrative regulation, establish standards for the operation of reentry centers established pursuant to KRS 441.146 .
  2. The Department of Corrections shall utilize data reported by the reentry centers pursuant to KRS 441.146 to analyze the effectiveness of the reentry centers in reducing recidivism and the engagement of residents in employment and in the community.
  3. Placement of inmates in reentry centers by the Department of Corrections or the Parole Board shall prioritize placement in higher-performing centers, as determined by the Department of Corrections.

HISTORY: 2017 ch. 158, § 89, effective June 29, 2017.

441.150. Managers and guards for work crews. [Repealed.]

Compiler’s Notes.

This section (1379-4: amend. Acts 1974, ch. 386, § 101; Acts 1976 (1st Ex. Sess.), ch. 12, § 10, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.160. Prisoners transferred to workhouse — Procedure. [Repealed.]

Compiler’s Notes.

This section (1379-7: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 18, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.170. Capias pro fine — Persons arrested on may be delivered to workhouse. [Repealed.]

Compiler’s Notes.

This section (1379-8: amend. Acts 1974, ch. 386, § 102) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.180. Credit allowed on fine when prisoner works — Work hours — Release of prisoners. [Repealed.]

Compiler’s Notes.

This section (1379-8, 1380: Acts 1966, ch. 255, § 276) was repealed by Acts 1974, ch. 406, § 336.

441.190. Prisoner not worked — Credit allowed on fine. [Repealed.]

Compiler’s Notes.

This section (1381) was repealed by Acts 1974, ch. 406, § 336.

441.200. Disposition of prisoners — Jailer to report. [Repealed.]

Compiler’s Notes.

This section (1382: amend. Acts 1976 (1st Ex. Sess.), ch. 12, § 11, effective January 1, 1978) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

441.205. Workhouse or penal farm in county containing city of first class. [Repealed.]

Compiler’s Notes.

This section (Acts 1948, ch. 233, § 1) was repealed by Acts 1982, ch. 428, § 4, effective July 15, 1982.

County Jail Budget and Funding

441.206. State contribution for jail — Allocation — Payments to be made annually — Use of funds.

  1. For the care and maintenance of prisoners charged with or convicted of violations of state law, each county shall receive a contribution from the State Treasury in an amount equal to that paid to the county pursuant to this section in fiscal year 1983-84 or the amount that should have been paid to the county in fiscal year 1983-84 under the conditions set forth in subsection (5) of this section. Any additional moneys appropriated for county jails shall be allocated on the basis of a formula comprised of the following factors:
    1. Sixty percent (60%) of the allocation shall be based on the amount of the 1983-84 funding formula each county received, or should have received under the conditions set forth in subsection (5) of this section;
    2. Ten percent (10%) of the allocation shall be based on each county’s comparative ranking of median household income in inverse order, as determined by the 1980 federal census of population; and
    3. Thirty percent (30%) of the allocation shall be based on the proportion of each county’s age at risk population (18-34) to the state total, as determined by the 1980 federal census of population.
  2. Payments of the state contribution for jail operating expenses shall be made annually, no later than July 31 of each year, by the Department of Corrections to the county treasurer. The election by a county to close its jail and to contract with another county for the incarceration of prisoners, as permitted by KRS 441.025 , shall not affect the state contribution provided for in subsection (1) of this section.
  3. All state funds paid to a county under this section, any funds paid to a county by the United States government, a city, or another county for the incarceration of prisoners and any interest earned on the funds shall be expended on the incarceration of prisoners, as provided in KRS 441.025 . Any funds paid under subsection (1) of this section and any interest earned on the funds shall be expended on the incarceration of prisoners, in accordance with regulations promulgated pursuant to KRS 441.055 , within twelve (12) months of the close of the fiscal year in which the funds were received. Any funds received by a county under subsection (1) of this section that are not expended for this purpose shall be returned to the State Treasury.
  4. A county shall not receive less than twenty-four thousand dollars ($24,000) pursuant to this section from the State Treasury for the care and maintenance of prisoners charged with or convicted of violations of state law.
  5. If the capacity of a jail was substantially increased during the years 1980 through 1982 due to construction or renovation, and if, a result, the amount paid to the county in fiscal year 1983-84 pursuant to this section and to 1982 Ky. Acts ch. 385, sec. 3, was not representative of the true jail population, then the commissioner of the Department of Corrections may, upon proper documentation by the county, permit an estimate of the current capacity of the jail to be used as a basis for calculating the amount that should have been paid to the county in fiscal year 1983-84. The estimate of current capacity shall be used to calculate payments made pursuant to subsection (1) of this section after July 14, 1992, but shall not be used to recalculate past payments.

History. Enact. Acts 1982, ch. 385, § 3, effective July 1, 1982; reen. and amend. 1984, ch. 415, § 1, effective July 13, 1984; 1992, ch. 211, § 122, effective July 14, 1992; 1992, ch. 224, § 1, effective July 14, 1992; 2011, ch. 2, § 106, effective June 8, 2011.

Compiler’s Notes.

This section was formerly compiled as KRS 441.007 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Legislative Research Commission Notes.

This section was repealed by 1982 Ky. Acts ch. 385, § 51, effective July 15, 1984. Thereafter, this repeal was nullified by 1984 Ky. Acts ch. 415, § 20, effective July 13, 1984.

NOTES TO DECISIONS

Cited in:

Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

Opinions of Attorney General.

Under a contract agreement by which one county incarcerates prisoners from another county, the sending county would be reimbursed finally by the holding county based upon the formula outlined in subsections (1) and (2) of this section. OAG 82-334 .

For the purpose of obtaining employee fringe benefits, the county is responsible for paying on behalf of jail personnel, as county employees, social security payments (KRS Ch. 61), workers’ compensation premiums (KRS Ch. 342), unemployment insurance premiums (KRS Ch. 341) and medical insurance coverage (KRS Ch. 67). OAG 82-346 .

The deputies, matrons and other supporting jail personnel, as defined in KRS 441.005(6), are county employees even though the state contributes financially to the operation of the jail under this section. OAG 82-346 .

Subsection (1) of this section establishes a uniform formula for the payment of the state’s contribution to each county for its incarceration of prisoners; any $5 fee earned by the jailer in making bond and collected by him in fiscal year 1980-81 was taken into account as a part of such formula calculation. Even where subsection (4) (now (5)) of this section applies, and a prior fiscal year is authorized by the secretary of finance as a basis for the formula calculation, the principle remains the same. OAG 82-477 .

The compensation to be paid to receiving county by sending county for the keeping of sending county’s prisoners must depend upon the mutual agreement of the two (2) fiscal courts, which agreement should involve a reasonable compensation for the detention services furnished, framed around the actual costs of furnishing such detention facilities; the cost elements could include a consideration of the original construction cost of the receiving county’s jail, the space allotted per prisoner, the cost of utilities, the present cost of replacement of the jail if it had to be rebuilt, the level of standards in terms of what would be considered adequate jail housing, the operational and salary costs relating to the jailer and his deputies, including furnishing of food. An agreement based upon the sending county’s sharing in both the operational and capital construction costs would be equitable, and would meet the fundamental fairness concept expressed in Const., § 2. OAG 83-26 .

The election by a county to close its jail and to contract with another county for the incarceration of prisoners, as permitted by KRS 441.006 (now KRS 441.025 ), does not affect the state contribution provided in subsection (1) of this section. OAG 83-26 .

The fiscal court could transfer money from a jail budget item to a county nonjail budget item to provide for an emergency; however, such transfer would be subject to these conditions: (1) the transfer must not create an emergency for the jail; and (2) the restrictions of subsection (3) of this section must be carefully observed. OAG 83-36 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.207. Local corrections assistance fund.

  1. The local corrections assistance fund is created as a separate revolving fund to be administered by the department. The fund shall consist of amounts transferred to the fund pursuant to the provisions of KRS 196.288 , along with any other proceeds from grants, contributions, appropriations, or other moneys made available for purposes of the fund.
  2. Notwithstanding KRS 45.229 , amounts not expended at the close of a fiscal year shall not lapse but shall be carried forward to the next fiscal year.
  3. Any interest earnings from the fund shall become a part of the fund and shall not lapse.
  4. Moneys in the fund shall accrue to the fund and shall be retained in the fund until the General Assembly establishes a statutory process and method for distributing the funds to local correctional facilities and programs.

History. Enact. Acts 2011, ch. 2, § 69, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). 2011 Ky. Acts ch. 2, sec. 69, directed that a new section of KRS Chapter 196 be created for this statute. However, during codification, the Reviser of Statutes determined that it was more appropriately placed within KRS Chapter 441, relating to jails and county prisoners, and created the new section as KRS 441.207 under the authority of KRS 7.136 .

441.210. “Station house” defined. [Repealed.]

Compiler’s Notes.

This section (2877a-27) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.215. Jail budget preparation.

  1. By April 1 of each year, the county judge/executive, county treasurer, and jailer shall prepare and submit to the fiscal court a proposed line item jail budget and an estimate of revenues for jail operations from federal, state, and local sources. The proposed jail budget and estimate of revenues shall be included in the proposed county budget and investigated by the fiscal court as provided in KRS 68.240 .
  2. The state local finance officer shall supervise and direct the form and classifications of the line item jail budget and estimate of jail revenues.
  3. The fiscal court shall consult with the jailer prior to any amendment of the jail budget. The fiscal court shall possess sole authority to transfer funds between line items.
  4. If, in the opinion of the jailer, the jail budget as proposed or as amended by the fiscal court, fails to adequately provide for the safe and secure operation of the jail or the care of prisoners, the jailer shall submit a written statement of his concerns along with any available documentation, to the fiscal court and, if the jail holds state prisoners, to the Department of Corrections.

History. Enact. Acts 1984, ch. 141, § 1, effective July 13, 1984; 1988, ch. 328, § 6, effective April 9, 1988; 1992, ch. 211, § 123, effective July 14, 1992; 1996, ch. 108, § 6, effective July 15, 1996.

Opinions of Attorney General.

Although a jailer, in view of subsection (1), must cooperate with the county judge/executive and the county treasurer in the preparation of a proposed line item jail budget, the jailer could prepare a separate jail budget proposal, and tender it to the fiscal court pursuant to subsection (4). OAG 91-183 .

The fiscal court could adopt the jailer’s budget proposal into the overall county budget through its amendment authority pursuant to KRS 68.240(6), and thereby eliminate or modify the jail budget proposed by the county judge/executive. OAG 91-183 .

441.220. Female prisoners in city of first class — Mayor to designate places of detention. [Repealed.]

Compiler’s Notes.

This section (2877a-15, 2877a-16) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.225. Expenditures from jail budget — Payment of jail personnel.

  1. Except for capital improvements, utilities and building insurance and except as provided in subsection (2) of this section, the jailer shall have authority to authorize expenditures from the jail budget. Such expenditures shall only be made in accordance with the line item jail budget duly adopted or amended by the fiscal court and the established county procurement code or purchase order procedure of the county. Payment for purchases for the jail shall be subject to fiscal court approval prior to payment. The fiscal court shall not withhold approval of payment for jail expenditures which are within the jail budget and not unlawful.
  2. The jailer shall submit, in accordance with county payroll procedures, time reports for all full-time and part-time jail personnel and employees to the county treasurer or other designated payroll official. The county treasurer shall review and pay such claims in accordance with policies and procedures for the payment of other county employees.

History. Enact. Acts 1984, ch. 141, § 2, effective July 13, 1984; reen. and amend. 1984, ch. 415, § 18, effective July 13, 1984.

NOTES TO DECISIONS

1.Authority of Jailer.

Circuit court properly dismissed the deputy jailers’ complaint against the fiscal court; alleging a violation of the Kentucky Wage and Hour Act for wages owed to them in accordance with the pay increases promised by the county jailer; because, even though the deputies’ salaries were paid from the jail budget, the deputy jailers were considered county employees, the jailer’s role was simply to direct the county treasurer to pay the deputies their wages as agreed upon by the fiscal court and had nothing to do with the determination of compensation or the discretion to adjust the compensation of the deputy jailers, the fiscal court was to fix the reasonable compensation for county employees and had never agreed to the claimed wages. Grossl v. Scott Cty. Fiscal Court, 566 S.W.3d 221, 2018 Ky. App. LEXIS 223 (Ky. Ct. App. 2018).

Opinions of Attorney General.

The phrase “other county employees,” appearing in subsection (2) of this section, buttresses the concept that for general purposes of various fringe benefits, the jail employees are indeed county employees. The plain meaning of subsection (2) is that jail employees are to be considered generally as county employees for general legal purposes. OAG 84-291 .

441.230. Matrons for county jail — Appointment, salary and quarters. [Repealed.]

Compiler’s Notes.

This section (2877a-17, 2877a-22, 2877a-25, 2877a-28: amend. Acts 1972, ch. 203, § 54), was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.235. Jail accounts and financial records.

  1. The county treasurer shall keep books of accounts of all receipts and disbursements from the jail budget and make such reports as are required by the state local finance officer.
  2. The county treasurer, in cooperation with the jailer, shall monthly report to the fiscal court on:
    1. All purchases from the jail account for the preceding month for final fiscal court approval; and
    2. The current condition of the jail account, including all jail revenues received, expenditures for the month, expenditures for the year-to-date and unexpended balances by line item.

History. Enact. Acts 1982, ch. 385, § 4, effective June 15, 1982; 1984, ch. 141, § 4, effective July 13, 1984.

Compiler’s Notes.

This section was formerly compiled as KRS 441.008 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Opinions of Attorney General.

Deputies and matrons appointed under KRS 71.060 must be salaried and funded by the county in its jail budget. OAG 82-315 .

The fiscal court, as the direct budgeting authority, should at the end of each calendar year retain any excess, not needed for the jail budget for that year, in the county treasury for any expenditure authorized by the county budget. OAG 82-315 .

Determination of the type, kind and amount of purchases (including food, bed supplies, cleaning supplies, etc.) for the jail is a joint responsibility of the jailer and the fiscal court. The jailer is immediately responsible for the program of necessary purchases, but after consultation and approval of fiscal court, since it is the funding agency. OAG 82-344 .

The fixing of the jail operating budget, as an integral part of the county budget, must take into consideration an adequate estimate of number of prisoners, food, space, transportation, salaries, and all other necessary jail operating costs. The budget must meet the basic formulated jail needs, within the funding capability in terms of county financing and state or other contributions, and of course, the minimal requirements as to the jailer’s salary in KRS 441.009 (now KRS 441.245 ) must be observed. OAG 82-344 .

It is up to the jailer to procure the necessary drivers and guards required to transport prisoners to a jail to be used under a contract with another county; this should be done by closely cooperating with the fiscal court, so that it knows precisely and in detail what is required under that jail plan. The funding of such necessary personnel clearly rests with the fiscal court under KRS 441.006 (now KRS 441.025 ) and this section. OAG 82-399 .

The fiscal court cannot refuse to budget funds for the salaries of the jailer’s necessary deputies and matrons. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

This section places the responsibility upon fiscal courts of adopting an operating budget for the jail, involving the expenditure of all state, county and other funds for jail operations and, in that budget, the responsibility to fund properly the salaries of the jailer and his deputies and matrons is clearly included. The “operating budget for the jail” is literally expressed and includes the entire and necessary jail operation; the statute is unambiguous and should be literally construed. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

When the local jail is at its capacity and the fiscal court contracts with another county or a city to provide detention facilities for such excess, the jailer generally procures the necessary drivers and guards required to transport prisoners to the jail to be used under the contract, and this should be done by closely cooperating with the fiscal court, such that it knows precisely and in detail what is required under that jail plan; the funding of such necessary personnel clearly rests with the fiscal court under KRS 441.006 (now KRS 441.025 ) and this section. OAG 82-421 .

KRS 68.300 voiding any claim or appropriation in excess of budget appropriations applies to the jail budget part of the county budget. OAG 82-424 .

Since under this section where the jailer’s expenditures are within authorized budget categories, the county treasurer must prepare the checks, sign them and see to it that the payees receive the checks, KRS 68.020(1), which requires the county treasurer to disburse county funds as authorized by fiscal court and to cosign county checks with the county judge/executive, does not apply. OAG 82-424 .

The fiscal court is not responsible for any overspending of the jail funds, since it has no supervising or approving role; however, the county treasurer would be directly held responsible for any such overspending; the jailer, of course, has a direct responsibility in seeing to it that he stays precisely within his budgeted funds. OAG 82-424 .

Aside from the fiscal court’s statutory duty of meeting the minimal jailer salary and other standards, the fiscal court is required to, in consultation with the jailer, adopt an operating budget for the jail. Where a jailer has good reason to believe that a fiscal court has acted arbitrarily in establishing the operating budget for the jail, and the jail operation has no more money for that year, he may seek redress in the Circuit Court. OAG 82-498 .

The budgeting for reimbursement of the jailer for litigational expenses must relate to the county budget proper, but not as relates to the “operating budget for the jail.” There is simply no statute authorizing it to be a part of a “jail budget.” OAG 82-509 .

Where KRS 337.285 (time and a half) is properly applied (extra time is necessary), then if the “jail budget” part of the county budget does not contain the money to pay for such overtime, the fiscal court is responsible for paying it, since the fiscal court has the overall duty of maintaining a county jail operation regardless of whether it admits an employer-employee relationship or not. In such situation the “employer” is still the jailer under KRS Chapter 337. OAG 82-625 .

Prior to the enactment of Acts 1982, ch. 385, where time in excess of 40 hours was authorized by the jailer, the time and one half payment was a claim against the jailer’s fees; where he had no fees available, the county treasurer, where a properly budgeted sum was available, was answerable to such payment for overtime, under the concept that the county jail was a county institution, even though the jailer was immediately in charge of the jail and the fiscal court was ultimately or derivatively responsible for the effective operation of that county institution. OAG 82-626 .

On and after July 1, 1982, the effective date of Acts 1982, ch. 385, the county treasurer at the discretion of the jailer is responsible for payment of overtime to the deputy jailer and matron out of the jail budget part of the county budget, assuming that the overtime is necessary and that such an expenditure is within an authorized budget category, as covered in subsection (2) of this section; if not, then the fiscal court will have to pay it out where such funds are available. OAG 82-626 .

The jailer should authorize work in excess of 40 hours (per week) only where necessary; where it is shown that a jailer is guilty of mismanagement in authorizing an “overtime situation,” he would be personally liable and liable on his bond for the payment of the overtime to the deputy or matron, and the claim would not be payable from the jail fund or county treasury. Where the overtime is necessary, the claim for overtime must be paid from the jail fund, or from the county treasury generally, where there are no jail budget funds to pay it. OAG 82-626 .

The purpose of this section, as relates to the jail budget, is to make use of the jailer’s input on the jail part of the county budget. Thus, the fiscal court, in preparing a budget amendment to provide for the expenditure of unanticipated revenue, should consult with the jailer, as strongly implied in this section; it would be illogical to say that the jailer must be consulted in formulating the original budget, but not on an amendment. OAG 83-36 .

Unanticipated revenues received by the county could displace (free up) county tax revenue originally budgeted for jail purposes, provided that the adequate and efficient operation of the jail would in no way be lessened or impaired. OAG 83-36 .

The fiscal court could transfer money from a jail budget item to a county nonjail budget item to provide for an emergency; however, such transfer would be subject to these conditions: (1) the transfer must not create an emergency for the jail; and (2) the restrictions of KRS 441.007(3) (now KRS 441.206(3)) must be carefully observed. Also, in transferring money between jail funds under KRS 68.290 , the fiscal court should consult with the jailer on such transfers. OAG 83-36 .

The adoption of the jail budget, as a part of the county budget, is not tantamount to setting the salaries of the jailer and his deputies; salary setting requires a separate action on the part of the fiscal court. OAG 83-49 .

The county treasurer, under subsection (2) of this section, is required to disburse jail operating funds (though a part of the county budget) at the discretion of the jailer and it would appear that the fiscal court or county judge/executive has no administrative control over such jail expenditures; however, the fiscal court could, in a proper case, seek mandamus or injunctive relief against him where it is alleged that the jailer is substantially exceeding his statutory authority. OAG 83-218 .

The fiscal court must provide the jail with proper furnishings and equipment necessary for preparation of food for jail prisoners; this is primarily a direct capital and equipment responsibility of the county, through the fiscal court. In addition, the funds for the food and necessary funds for food preparation personnel must come out of the jail budget of the county budget. OAG 83-250 .

Where a county jail had been closed and the fiscal court permitted the jailer to remain in the living quarters of the jail for the remainder of his term without paying rent, the fiscal court could legally discontinue paying his utility bills since failing to pay the jailer’s utility bill had nothing to do with reducing the jailer’s compensation. OAG 83-280 .

Where the local jail is closed and the prisoners are transported to a jail in another county, the local jailer is responsible for transporting such prisoners to and from such detention facility; however, the providing of the necessary vehicle for such transportation is the same as if the local jail were operational, that is, it is a joint responsibility of the fiscal court and jailer. OAG 83-368 .

KRS 337.020 applies to the payment of jail employees, including the jailer’s deputies, and the exception listed in KRS 337.020 does not apply to such county jail employees; thus, the jailer must pay the county jail employees as often as semi-monthly all salary earned to a day not more than 18 days prior to the date of that payment. OAG 83-423 .

Neither the county judge/executive nor the fiscal court has the authority to approve or disapprove an expenditure for the jail as long as the expense is included in the jail budget and sufficient funds are available. OAG 83-490 .

A jailer may require his prisoners to wear some reasonable type of prisoner uniform calculated to subserve the necessary disciplinary system of the jail; such appropriate prisoner uniforms would constitute a legitimate item of expense, which may be provided for in the jail budget. OAG 84-44 .

Until July 13, 1984, where the jailer’s deputy assists the jailer as transportation officer, the county treasurer should disburse the compensation earned and payable to this deputy from the available budgeted “jail budget” funds; on and after July 13, 1984, the jailer’s deputy can no longer pursue that role and it is then up to the fiscal court to provide any necessary vehicles, drivers and guards for whoever is transportation officer. OAG 84-179 .

441.240. Assistant matrons for station houses — Appointment, salary and quarters. [Repealed.]

Compiler’s Notes.

This section (2877a-17, 2877a-23, 2877a-25, 2877a-28) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.245. Salary for jailer who operates full-service jail — Fiscal court to annually detail the duties and compensation of jailer not subject to salary schedule — Jailer’s quarterly reports.

  1. The jailer who operates a full-service jail shall receive a monthly salary pursuant to any salary schedule in KRS Chapter 64 applicable to jailers operating a full-service jail from the county jail operating budget.
  2. No jailer holding office in the Commonwealth on or after January 6, 1999, shall receive an annual salary of less than twenty thousand dollars ($20,000).
    1. The salaries of jailers who are not subject to any salary schedule in KRS Chapter 64 may be set at a higher level if the salary does not exceed the constitutional salary limit applicable to jailers. These jailers’ salaries shall at least equal the prior year’s level and may be adjusted by the fiscal court for the change in the prior year’s consumer price index according to the provisions of KRS 64.527 . (3) (a) The salaries of jailers who are not subject to any salary schedule in KRS Chapter 64 may be set at a higher level if the salary does not exceed the constitutional salary limit applicable to jailers. These jailers’ salaries shall at least equal the prior year’s level and may be adjusted by the fiscal court for the change in the prior year’s consumer price index according to the provisions of KRS 64.527 .
    2. For jailers governed by this subsection:
      1. By May 1 of each year, the fiscal court shall pass a resolution detailing:
        1. The duties to be performed by the jailer in the upcoming fiscal year; and
        2. The compensation for the jailer for the upcoming fiscal year, including any cost-of-living adjustments according to the provisions of KRS 64.527; and
      2. On a quarterly basis, jailers shall submit to the fiscal court a summary of all official duties performed by the jailer and the jailer’s deputies, to include information related to prisoner transport, including but not limited to:
        1. The prisoner’s name;
        2. The location and time the prisoner was placed in the custody of the jailer or the jailer’s deputies for transport;
        3. The location and time the jailer or the jailer’s deputies relinquished custody of the prisoner after transport; and
        4. The mileage driven.

HISTORY: Enact. Acts 1982, ch. 385, § 5, effective July 1, 1982; 1984, ch. 141, § 14, effective July 13, 1984; 1998, ch. 595, § 1, effective July 15, 1998; 1998, ch. 610, § 7, effective July 15, 1998; 2017 ch. 67, § 1, effective March 21, 2017.

Compiler’s Notes.

This section was formerly compiled as KRS 441.009 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Legislative Research Commission Notes.

(7/15/98). This section was amended by 1998 Ky. Acts chs. 595 and 610. Where these Acts are not in conflict, they have been codified together. Where a conflict exists, Acts ch. 595, which was last enacted by the General Assembly, prevails under KRS 446.250 .

NOTES TO DECISIONS

1.Amount of Salary.

This section permits a jailer to receive from fiscal court as his 1982 salary that amount of personal compensation he received or paid himself in 1981 plus the adjusted change in the cost of living, under the limit provided in KRS 64.527 . Nickell v. Thomas, 665 S.W.2d 927, 1984 Ky. App. LEXIS 453 (Ky. Ct. App. 1984).

The plain meaning of this statute mandates that a jailer’s salary remain the same from year to year, with adjustments permitted solely for changes in the consumer price index; in light of this section, a county fiscal court did not have the authority to reduce a jailer’s salary. Wallace v. King, 973 S.W.2d 485, 1998 Ky. App. LEXIS 59 (Ky. Ct. App. 1998).

Jailer’s salary could not be reduced during his term of office, even though the duties of the office had changed, and even though the contemplated reduction would have applied to the next term. Wallace v. King, 973 S.W.2d 485, 1998 Ky. App. LEXIS 59 (Ky. Ct. App. 1998).

Opinions of Attorney General.

The compensation for the jailer for the 1981 calendar year is determined from his total fees actually received during that calendar year, but not to exceed the maximum rubber dollar amount of $26,058. In the absence of contrary statutory provision, it seems logical to conclude that the jailer, for 1981, may first apply his earned fees to his own compensation, and then if any fees remain, they may be applied to his deputy salaries and other expenses. OAG 82-315 .

The fixing of the jail operating budget, as an integral part of the county budget, must take into consideration an adequate estimate of number of prisoners, food, space, transportation, salaries, and all other necessary jail operating costs. The budget must meet the basic formulated jail needs, within the funding capability in terms of county financing and state or other contributions, and of course, the minimal requirements as to the jailer’s salary in this section must be observed. OAG 82-344 .

The fiscal court cannot refuse to budget funds for the salaries of the jailer’s necessary deputies and matrons. OAG 82-400 (modifying OAG 82-155 , 80-319 and related opinions).

Subsection (3) of this section, in order to be consistent with the concept of annual salary, must be interpreted merely to show what a monthly breakdown in salary would be in the calendar year 1982. OAG 82-497 .

Where county jail was not open in 1981 or 1982, but county had a jailer who lived in the jailer’s residence, the fiscal court could consider the benefit of free rent for the jailer’s residence as income to the jailer in determining the amount of income earned by the jailer for the period from January, 1982 through June, 1982. OAG 82-497 .

Where county jail was not open in 1981 or 1982, but county had a jailer who lived in the jailer’s residence and was paid a salary as custodian of county property under the formula laid out in subsection (2) of this section, the jailer’s earnings in 1982 from being buildings custodian could not be used for such compensation formulation for the calendar year 1982, but the jailer could keep his custodial earnings, provided that his total compensation did not exceed the rubber dollar maximum for 1982. Moreover, his earnings as buildings custodian for the calendar year of 1981 would be his compensation for calendar year 1982, unless the $12,000 figure is greater, in which case the $12,000 would be his minimal salary for 1982. OAG 82-497 .

Where jail was not open in 1981 or 1982, but county had a jailer who lived in the jailer’s residence and was paid a salary as custodian of county property, the jailer could accept compensation as custodian and add that to any other compensation fixed by the fiscal court, provided the total did not exceed the rubber dollar limit for that year. But basically, the jailer can only be paid for services actually rendered. OAG 82-497 .

Aside from the fiscal court’s statutory duty of meeting the minimal jailer salary and other standards, the fiscal court is required to, in consultation with the jailer, adopt an operating budget for the jail. Where a jailer has good reason to believe that a fiscal court has acted arbitrarily in establishing the operating budget for the jail, and the jail operation has no more money for that year, he may seek redress in the Circuit Court. OAG 82-498 .

The adoption of the jail budget, as a part of the county budget, is not tantamount to setting the salaries of the jailer and his deputies; salary setting requires a separate action on the part of the fiscal court. OAG 83-49 .

Once the jailer’s salary is properly set under KRS 64.530 , 64.527 , and this section, it cannot be reduced, since that would be a “change in compensation,” which is prohibited by Const., §§ 161 and 235; an upward adjustment during the term of a jailer’s salary not to exceed the rubber dollar level, is not a change in compensation. OAG 83-49 .

The jailer must be personally responsible for purchasing, out of his personal funds, the food requirements for him and his family. OAG 83-250 .

Where a county has a holdover jail, the fiscal court should establish a reasonable salary for the jailer, based upon his range of functions, as described in KRS 441.510 , 71.050 , and 67.130 , and actual performance thereof. However, such salary should not exceed the $12,000.00 described in subsection (5) of this section. OAG 85-6 . (Opinion prior to 1998 amendment.)

The statutes do not authorize a salary for services of a jailer incident to preparation for opening of a jail. OAG 92-47 .

The statutes do not provide for supplementing or increasing the salary of a jailer, in a county that does not have a jail, to compensate the jailer for services rendered in preparing for the opening of a jail. In the absence of statutory authority for enhancing the salary of a jailer for such purpose, and in view of the specific maximum imposed by statute on the salary of a jailer in a county that does not have a jail, and in which the jailer does not transport prisoners, a jailer is limited to a maximum salary of $12,000, until such time as the jail is opened. OAG 92-47 .

Research References and Practice Aids

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.250. Qualifications and term of matrons. [Repealed.]

Compiler’s Notes.

This section (2877a-19, 2877a-20) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.255. Cost of incarceration when change of venue granted.

When a change of venue is granted, the cost of incarcerating the defendant shall be paid by the county from which the action is removed.

History. Enact. Acts 1984, ch. 415, § 17, effective July 13, 1984.

441.260. Hours and duties of matrons. [Repealed.]

Compiler’s Notes.

This section (2877a-21) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.265. Required reimbursement by prisoner of costs of confinement — Local policy of fee and expense rates — Billing and collection methods.

  1. A prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner’s confinement as set out in this section, except for good cause shown.
    1. The jailer may adopt, with the approval of the county’s governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following: (2) (a) The jailer may adopt, with the approval of the county’s governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:
      1. An administrative processing or booking fee;
      2. A per diem for room and board of not more than fifty dollars ($50) per day or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail;
      3. Actual charges for medical and dental treatment; and
      4. Reimbursement for county property damaged or any injury caused by the prisoner while confined to the jail.
    2. Rates charged may be adjusted in accordance with the fee and expense reimbursement policy based upon the ability of the prisoner confined to the jail to pay, giving consideration to any legal obligation of the prisoner to support a spouse, minor children, or other dependents. The prisoner’s interest in any jointly owned property and the income, assets, earnings, or other property owned by the prisoner’s spouse or family shall not be used to determine a prisoner’s ability to pay.
  2. The jailer or his designee may bill and attempt to collect any amount owed which remains unpaid. The governing body of the county may, upon the advice of the jailer, contract with one (1) or more public agencies or private vendors to perform this billing and collection. Within twelve (12) months after the date of the prisoner’s release from confinement, the county attorney, jailer, or the jailer’s designee, may file a civil action to seek reimbursement from that prisoner for any amount owed which remains unpaid.
  3. Any fees or reimbursement received under this section shall be forwarded to the county treasurer for placement in the jail’s budget.
  4. The governing body of the county may require a prisoner who is confined in the county jail to pay a reasonable fee, not exceeding actual cost, for any medical treatment or service received by the prisoner. However, no prisoner confined in the jail shall be denied any necessary medical care because of inability to pay.
  5. Payment of any required fees may be automatically deducted from the prisoner’s property or canteen account. If the prisoner has no funds in his account, a deduction may be made creating a negative balance. If funds become available or if the prisoner reenters the jail at a later date, the fees may be deducted from the prisoner’s property or canteen account.
  6. Prior to the prisoner’s release, the jailer or his designee may work with the confined prisoner to create a reimbursement plan to be implemented upon the prisoner’s release. At the end of the prisoner’s incarceration, the prisoner shall be presented with a billing statement produced by the jailer or designee. After the prisoner’s release, the jailer or his designee may, after negotiation with the prisoner, release the prisoner from all or part of the prisoner’s repayment obligation if the jailer believes that the prisoner will be unable to pay the full amount due.
  7. No per diem shall be charged to any prisoner who is required to pay a work release fee pursuant to KRS 439.179 , a prisoner that has been ordered to pay a reimbursement fee by the court pursuant to KRS 534.045 , or that the Department of Corrections is financially responsible for housing.
  8. No medical reimbursement, except that provided for in KRS 441.045 , shall be charged to any prisoner that the Department of Corrections is financially responsible for housing.

History. Enact. Acts 2000, ch. 537, § 1, effective July 14, 2000.

NOTES TO DECISIONS

1.Construction.

KRS 441.005(3) and KRS 441.265 contemplate imposition of jail fees whether or not the inmate is ever sentenced; therefore, the correct reading of KRS 441.265 is that the fees may be imposed as soon as the prisoner is booked into the jail and may be periodically deducted from the prisoner’s account as provided by local regulation. Sickles v. Campbell County, 439 F. Supp. 2d 751, 2006 U.S. Dist. LEXIS 51715 (E.D. Ky. 2006 ), aff'd, 501 F.3d 726, 2007 FED App. 0361P, 2007 U.S. App. LEXIS 21163 (6th Cir. Ky. 2007 ).

Language of the statute is unambiguous, and seems clearly intended to provide a means for county jails to automatically deduct required fees when the inmate has the funds available; required fees may automatically be deducted from the prisoners' property or inmate canteen accounts, and if a negative balance is created, subsection (1) permits a sentencing court to order a prisoner to reimburse the jail. Cole v. Warren Cnty., 495 S.W.3d 712, 2015 Ky. App. LEXIS 157 (Ky. Ct. App. 2015).

2.Due Process.

Kentucky counties were entitled to summary judgment in consolidated 42 U.S.C.S. § 1983 actions by inmates alleging violations of their U.S. Const. amend. XIV due process rights in the imposition of jail fees under KRS 441.265 ; the post-deprivation grievance procedures provided pursuant to KRS 441.265 (2)(b) were adequate to protect the inmates’ due process rights. Sickles v. Campbell County, 439 F. Supp. 2d 751, 2006 U.S. Dist. LEXIS 51715 (E.D. Ky. 2006 ), aff'd, 501 F.3d 726, 2007 FED App. 0361P, 2007 U.S. App. LEXIS 21163 (6th Cir. Ky. 2007 ).

Prisoners' due process rights were not violated because the prisoners were never actually deprived of their property; the prisoners' funds were deposited into their bank account for safe keeping, and with the exception of the jail legally withdrawing required fees, the prisoners had access to those funds while in jail and upon release. Cole v. Warren Cnty., 495 S.W.3d 712, 2015 Ky. App. LEXIS 157 (Ky. Ct. App. 2015).

3.Prisoner Property.

County jail's practice of confiscating prisoner's checks and depositing the funds into their bank accounts for use of the costs associated with their confinement did not violate the statute because when subsection (1) was read in conjunction with subsection (6), the statute unambiguously permitted the exact practice the jail used. Cole v. Warren Cnty., 495 S.W.3d 712, 2015 Ky. App. LEXIS 157 (Ky. Ct. App. 2015).

Bank was not liable to prisoners for conversion because it did not make payment with respect to an instrument for a person not entitled to enforce the instrument; a county jail became a nonholder in possession of the instrument and had the rights of a holder when it lawfully confiscated prisoners' checks, and thus, the jail was entitled to enforce the confiscated checks pursuant to the statute. Cole v. Warren Cnty., 495 S.W.3d 712, 2015 Ky. App. LEXIS 157 (Ky. Ct. App. 2015).

4.Application.

In a drug case, the standard for the payment of jail fees set forth in the statute for misdemeanors did not apply because defendant was convicted of a felony. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

5.Policy.

This statute states that a county or jail may adopt a policy that sets out specifically how fees will be reimbursed, but it does not require a jail or county to have such a policy in place. Therefore, a policy did not have to be in place in order for a court to require a prisoner or defendant to reimburse jail fees. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

6.Resources.

Trial court is not permitted to consider any resources of a defendant's family when it determines whether the defendant is required to reimburse jail fees. However, there was no good cause to waive the fees because the record did not reflect that the trial court considered the family resources, and the trial court determined that defendant would have been able to work while incarcerated and upon release to reimburse the jail fees. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

441.270. Matron to attend court — Be present when female searched. [Repealed.]

Compiler’s Notes.

This section (2877a-26, 2877a-28: amend. Acts 1976 (1st Ex. Sess.) ch. 14, § 460, effective January 2, 1978) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.280. Notification of matron on receipt of female or child. [Repealed.]

Compiler’s Notes.

This section (2877a-24) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.290. Jail visiting board in cities of first class. [Repealed.]

Compiler’s Notes.

This section (2877a-18) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.300. Jail physician in counties containing 150,000 population. [Repealed.]

Compiler’s Notes.

This section (2237a-4, 2237a-5, 2237a-6: amend. Acts 1942, ch. 180, § 7; 1978, ch. 384, § 532, effective June 17, 1978) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.310. Chaplain for jail in counties containing city of first class. [Repealed.]

Compiler’s Notes.

This section (2877b-1 to 2877b-6) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.320. City jailer and deputy in cities of second class. [Repealed.]

Compiler’s Notes.

This section (3145: amend. Acts 1954, ch. 112, § 2, effective June 17, 1954) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.330. City jailer may allow time off sentence. [Repealed.]

Compiler’s Notes.

This section (3145-1) was repealed by Acts 1976 (1st Ex. Sess.), ch. 12, § 19, effective January 1, 1978.

Jail Facilities

441.410. Definition. [Repealed.]

Compiler’s Notes.

This section (Acts 1974, ch. 294, § 1) was repealed by Acts 1982, ch. 385, § 50, effective July 1, 1982.

441.415. Definitions for KRS 441.420 to 441.450.

As used in KRS 441.420 to 441.450 :

    1. “Local correctional facility” means a jail as defined in KRS 441.005 , and any other facility by whatever name known that is operated by a unit of local government, combination of units of local governments, or regional jail authority for the involuntary confinement of persons arrested for or charged with the commission of a crime and of persons convicted of a crime. (1) (a) “Local correctional facility” means a jail as defined in KRS 441.005 , and any other facility by whatever name known that is operated by a unit of local government, combination of units of local governments, or regional jail authority for the involuntary confinement of persons arrested for or charged with the commission of a crime and of persons convicted of a crime.
    2. The definition in paragraph (a) of this subsection shall not include a hospital licensed pursuant to KRS Chapter 216B unless the hospital is operated solely for the purpose of incarcerating persons specified in paragraph (a) of this subsection; and
  1. “Construction authority” means the Local Correctional Facilities Construction Authority established under KRS 441.615 .

History. Enact. Acts 2011, ch. 2, § 77, effective June 8, 2011.

Legislative Research Commission Notes.

(6/8/2011). 2011 Ky. Acts ch. 2 sec. 77, directed that a new section of KRS 441.420 to 441.450 be created for this statute. However, during codification, the Reviser of Statutes determined that this statute, which contains definitions for KRS 441.420 to 441.450 , was more appropriately numbered preceding that range of statutes, and created the new section as KRS 441.415 under the authority of KRS 7.136 .

441.420. Approval of construction plans required — Department to pay for architectural plans and engineering services — Fee schedule.

  1. No political subdivision of this Commonwealth, combination of subdivisions, or regional jail authority shall build a new local correctional facility unless:
    1. The facility meets the approval or complies with the standards and administrative regulations of the department promulgated pursuant to KRS 441.055 ;
    2. The construction results in a new facility with:
      1. A minimum capacity of one hundred fifty (150) prisoner beds; or
      2. If a larger facility is needed, more than one hundred fifty (150) prisoner beds in fifty (50) bed increments; and
    3. Construction of the local correctional facility is approved by the construction authority.
  2. Final authority for approval of plans for the construction of a local correctional facility, or an addition to a local correctional facility shall rest with the construction authority.
  3. The department shall pay for the architectural plans and engineering services associated with any new local correctional facility approved by the construction authority.
  4. The department may promulgate administrative regulations to create a fee schedule for architectural plans and engineering services required for the construction of local correctional facilities. A sample fee schedule for architectural plans and engineering services may be developed by a committee consisting of department personnel, architects, and construction managers.

History. Enact. Acts 1974, ch. 294, § 2; 1982, ch. 385, § 44, effective July 1, 1982; 1992, ch. 211, § 124, effective July 14, 1992; 2011, ch. 2, § 78, effective June 8, 2011; 2012, ch. 156, § 15, effective July 12, 2012; 2013, ch. 69, § 12, effective June 25, 2013.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, a, (1) at 1102.

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

441.430. Application, review, and approval of plans for new local correctional facility — Delay of final decision — Prerequisites for approval — Review of architectural plans by department’s jail consultants.

  1. Any political subdivision, or combination of subdivisions, desiring to build a local correctional facility shall make application, in writing, to the department and the construction authority for approval of the plans for the local correctional facility not less than ninety (90) days before the advertising for bids for construction of the facility, or if bids are not to be let, ninety (90) days before the construction commences. The application shall include documentation of the items required by subsection (3) of this section.
  2. The department’s jail consultants shall review the application and within thirty (30) days of the department’s receipt of the application, make a recommendation to the construction authority. The construction authority shall make a decision within sixty (60) days after the department’s jail consultants make their recommendation. The construction authority may delay a final decision on the construction of any new local correctional facility if the construction authority determines that it has insufficient information upon which to base a decision. If the construction authority determines that it has insufficient information upon which to base a decision, a final decision shall be delayed but shall be made within sixty (60) days after receipt of the information required by the construction authority. Construction shall not commence until the requisite approval is obtained.
  3. The construction authority shall not approve the construction of a local correctional facility unless the political subdivision or combination of subdivisions desiring to build a local correctional facility proves to the satisfaction of the construction authority that:
    1. The construction of a new local correctional facility is necessary;
    2. The construction of a new local correctional facility with the number of beds proposed is necessary;
    3. The political subdivision or combination of political subdivisions has sufficient bonding and revenue sources to pay the bonded indebtedness of the proposed local correctional facility;
    4. The number and sources of prisoners for the local correctional facility is sufficient to maintain the financial viability of the local correctional facility;
    5. The projected operating costs for the local correctional facility are appropriate to maintain the financial viability of the local correctional facility;
    6. The sources of revenue are sufficient to pay, in addition to the bonded indebtedness, the operation costs and maintenance for the local correctional facility;
    7. If applicable, there are contracts or interlocal cooperation agreements specifying details for sharing the liability for the costs of paying the bonded indebtedness and the operation costs for the local correctional facility;
    8. If applicable, there are contracts or interlocal cooperation agreements specifying details for the management and operation of the local correctional facility; and
    9. All information has been provided that the construction authority required pursuant to administrative regulation.
    1. Upon approval by the construction authority of the new local correctional facility, or the expansion of an existing correctional facility, architectural plans shall be submitted to the department for approval. The department’s jail consultants shall review the architectural plans and within sixty (60) days notify the applicant and the construction authority of their findings. (4) (a) Upon approval by the construction authority of the new local correctional facility, or the expansion of an existing correctional facility, architectural plans shall be submitted to the department for approval. The department’s jail consultants shall review the architectural plans and within sixty (60) days notify the applicant and the construction authority of their findings.
    2. The department’s jail consultants may delay final approval of the architectural plans if the jail consultants determine the architectural plans for the facility do not comply with administrative regulations of the department promulgated pursuant to KRS 441.055 .
    3. If the department determines that it has insufficient information upon which to make a decision, a final decision shall be delayed but shall be made within sixty (60) days after receipt of the information requested.
    4. Construction shall not commence until the requisite approvals have been obtained.
    5. If approval is denied by the department’s jail consultants, the political subdivision or combination of subdivisions requesting the construction or expansion of a local correctional facility may appeal the decision to the construction authority.

History. Enact. Acts 1974, ch. 294, § 3; 1982, ch. 385, § 45, effective July 1, 1982; 1992, ch. 211, § 125, effective July 14, 1992; 2011, ch. 2, § 79, effective June 8, 2011; 2012, ch. 156, § 16, effective July 12, 2012; 2013, ch. 69, § 13, effective June 25, 2013.

441.440. Alterations of plans or construction restricted — Exceptions.

Except as provided in KRS 441.450 , local correctional facilities shall be constructed pursuant to the approved architectural plans, and no alterations to the architectural plans or construction shall be made unless prior approval is obtained from the construction authority or the department if the alteration would increase the cost or bed capacity beyond the approved amounts. Alterations may be approved by the department in an amount not to exceed ten percent (10%) of the approved application. Any alteration or combination of alterations that exceed ten percent (10%) of the approved application shall be approved by the construction authority.

History. Enact. Acts 1974, ch. 294, § 4; 1982, ch. 385, § 46, effective July 1, 1982; 1992, ch. 211, § 126, effective July 14, 1992; 2011, ch. 2, § 80, effective June 8, 2011; 2012, ch. 156, § 17, effective July 12, 2012; 2013, ch. 69, § 14, effective June 25, 2013.

441.450. Approval required for remodeling or reconstruction of existing facilities — When approval not required.

  1. Any political subdivision, combination of subdivisions, or regional jail authority desiring to remodel or reconstruct an existing local correctional facility wherein the construction will involve physical change of the structure shall obtain the approvals required by KRS 441.420 to 441.440 and shall reconstruct or modify the local correctional facility in accordance with the approval.
  2. Except as provided in subsection (3) of this section, existing local correctional facilities may be renovated without the approval of the construction authority.
    1. If the renovation includes an increase in the square footage of an existing local correctional facility to add prisoner bed space, that renovation shall be deemed an expansion and shall require the approval of the construction authority as provided in KRS 441.420 to 441.450 . (3) (a) If the renovation includes an increase in the square footage of an existing local correctional facility to add prisoner bed space, that renovation shall be deemed an expansion and shall require the approval of the construction authority as provided in KRS 441.420 to 441.450 .
    2. If the renovation includes an increase in the square footage of an existing local correctional facility, the authority shall not approve the application unless the resulting renovation of the local correctional facility results in a facility with a bed capacity of one hundred fifty (150) inmate beds or more.

History. Enact. Acts 1974, ch. 294, § 5; 2011, ch. 2, § 81, effective June 8, 2011; 2012, ch. 156, § 18, effective July 12, 2012.

441.500. Transporting to and from detention facility. [Renumbered.]

Compiler’s Notes.

This section was renumbered as KRS 441.510 by the Reviser of Statutes pursuant to KRS 7.136 .

Transfer and Transporting of Prisoners

441.505. Fiscal court to provide for transportation of prisoners — Security requirements.

  1. The fiscal court of each county shall provide for the transportation of prisoners as necessary from the jail budget. All vehicles used for the purpose of transporting prisoners shall be equipped with security screens and two (2) way radios.
  2. The fiscal court shall not be required to provide for the transportation of prisoners on work release.
  3. The fiscal court shall not be responsible for providing transportation to prisoners being held out of the county at the time of their release.

History. Enact. Acts 1984, ch. 141, § 9, effective July 13, 1984.

NOTES TO DECISIONS

Cited in:

Vaughn v. Asbury, 726 S.W.2d 315, 1987 Ky. App. LEXIS 437 (Ky. Ct. App. 1987).

Opinions of Attorney General.

A sheriff can only receive compensation or fees for his public services as provided by statute; assuming the proper budgeting of the costs for transporting prisoners in the jail budget part of the county budget, pursuant to KRS Chapter 68, the sheriff’s actual costs of transportation should be paid out of the budgeted fund upon presentation of proper documentation. OAG 84-330 .

Subject to proper budgeting and availability of funds, a sheriff’s office may obtain reimbursement from either the fiscal court or the county jail budget for costs associated with transporting, and standing by with, county prisoners in connection with court ordered psychological evaluations. OAG 91-88 .

The statutory duty imposed upon the sheriff to transport prisoners (except in an urban county, and as otherwise provided), transcends availability of funds. If a county does not have resources to pay for prisoner transportation, the sheriff’s office must nonetheless carry out such responsibility as part of the statutorily assigned duties of the office. OAG 91-88 .

The statutes place the general responsibility for transporting prisoners with the sheriff, with the fiscal court being responsible for providing funding for such responsibility through the jail budget. OAG 92-47 .

It is up to the fiscal court to adopt a transportation plan for transportation of prisoners as necessary; however, if the fiscal court does not adopt a transportation plan then transportation of prisoners will be provided for as provided in subsection (1) of this section. OAG 94-10 .

441.510. Transporting to and from detention facility.

  1. If an inmate is confined in a detention facility, he shall be transported as necessary in accordance with the following provisions:
    1. If he is lodged in an urban-county facility in the county where the trial is to be held, the jailer shall carry out this duty; and
    2. In all other cases, the sheriff of the county where the prisoner is incarcerated shall carry out this duty as provided in subsection (3) of this section.
  2. The transportation of any inmate housed in a county detention center whose court appearance is necessary in any other county shall be transported by the sheriff of the county where the trial or court proceedings are to be held.
  3. If an accused is sentenced to confinement, the sheriff shall deliver him to the proper detention facility, with the exception that in the case of a sentence to an urban-county detention facility, the jailer shall carry out this duty.
  4. In each county where there is no jail, the fiscal court or the legislative body of a charter county government, as appropriate, shall adopt a transportation plan which establishes the party responsible for transporting prisoners as necessary:
    1. The fiscal court or the legislative body of a charter county government, as appropriate, may require the jailer to serve as transportation officer to be responsible for transporting prisoners as necessary; or
    2. The fiscal court or the legislative body of a charter county government, as appropriate, may require the sheriff to serve as transportation officer to be responsible for transporting prisoners as necessary; or
    3. The fiscal court or the legislative body of a charter county government, as appropriate, may adopt any reasonable transportation plan so long as the party responsible for transporting prisoners is specified.
  5. Upon the recommendation of the jailer, the fiscal court shall employ a female transportation officer for purposes of assisting the jailer during the transportation of female prisoners, when deemed necessary by the jailer.
  6. In any county where there is no jail and the jailer does not transport prisoners, the jailer shall serve as a bailiff to the Circuit and District Courts of the county as provided for in KRS 71.050 .
  7. Nothing in this section shall prohibit the jailer from transporting the prisoners as he or she deems necessary.

History. Enact. Acts 1976 (Ex. Sess.), ch. 22, § 55, effective January 2, 1978; 1982, ch. 385, § 47, effective July 1, 1982; 1984, ch. 141, § 10, effective July 13, 1984; 1992, ch. 89, § 2, effective July 14, 1992; 1996, ch. 84, § 1, effective July 15, 1996; 2000, ch. 384, § 2, effective July 14, 2000; 2001, ch. 97, § 1, effective June 21, 2001.

Compiler’s Notes.

This section was formerly compiled as KRS 441.500 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Transportation of Inmates.

KRS 441.510(2) requires the sheriff of the requesting county to transport inmates held in detention facilities in another county to court proceedings in the requesting county. Commonwealth Dep't of Corr. v. Engle, 302 S.W.3d 60, 2010 Ky. LEXIS 17 ( Ky. 2010 ).

County sheriff, not the Kentucky Department of Corrections (DOC), was responsible for the transportation of an inmate for court proceedings because KRS 441.510(2) mandated that an inmate “shall be transported by the sheriff of the county where the trial or court proceedings are to be held”; the proper party to transport was the sheriff of the requesting county, not the DOC. Commonwealth Dep't of Corr. v. Engle, 302 S.W.3d 60, 2010 Ky. LEXIS 17 ( Ky. 2010 ).

Opinions of Attorney General.

In urban-counties the jailer bears the duty of transportation and is entitled to charge the $6 fee if he performs the service, and the sheriff is entitled to collect the fee if he does the transporting in lieu of the jailer. OAG 80-23 .

The duty of transporting prisoners from one detention facility to another, in a different county, rests upon the sheriff of the county where the trial will be held, unless the circumstances fall within one of the exceptions established by subsections (1)(a) and (b) or former provisions (2)(a) and (b) of this section, and since there is no statutory provision for the sheriff’s compensation for transporting misdemeanants from one county to another, the sheriff must perform this duty without compensation. OAG 80-342 . (Opinion prior to the 1996 amenmdent.)

If a prisoner is transferred from a county jail to a hospital for treatment, the sheriff in the county where the trial is to be held would have to transport him; assuming that the prisoner is in the county jail and is an indigent under KRS 441.010 (now KRS 441.045 ), that section provides only for medical care costs and since there is nothing in the entire section that suggests that medical care includes transportation costs, the sheriff would have to bill, through a documented claim, the county for reimbursement of actual and necessary expenses incurred in the transportation of the prisoner. OAG 80-434 .

A sheriff is required to transport prisoners placed in his custody as far as is necessary to execute the orders of the courts as to the prisoners’ place of confinement. OAG 80-482 .

The sheriff has a duty to obey all orders of the courts of justice, and to execute the sentence of the court and this duty is absolute; if the sheriff is charged to take custody of a prisoner by a judge he must do so, even when both he and the judge are aware that no facilities are available for housing the prisoner. OAG 80-482 .

An ordinance which provides that where a county jail prisoner must be taken to the hospital and guards must be provided for that purpose, the sheriff must provide the guards from among his deputies, is invalid, since the immediate responsibility for the hospital guards attaches to the jailer under KRS 71.020 and KRS 71.040 and where the jailer is unable to furnish guards from his staff he must call upon the fiscal court to provide them rather than the sheriff, whose responsibility for transporting prisoners under this section relates only to transporting them to and from detention facilities. OAG 81-35 .

Where the court orders the sheriff to transport a mental patient to a mental health facility for examination and treatment pursuant to KRS 202A.100 (repealed), the sheriff must assume that responsibility, but where a peace officer under KRS 202A.040 (repealed) arrests a mentally ill person, he must take the person to a physician or hospital, and, under those circumstances, the peace officer can call on the sheriff for help in such transportation, pursuant to this section; thus, at this point the sheriff is responsible for transporting the mentally ill person from the hospital where he is being held to the local court. OAG 81-148 .

Regardless of whether the police, the jailer or the sheriff does the transporting, there is no provision in this section for a fee for the service of transporting the accused from the jail or the detention facility to the court and, thus, the sheriff cannot charge or collect any fee for rendering this particular service. OAG 82-111 . (Opinion prior to the 1982 amendment to this section).

This section does not cover the furnishing of security guards for a prisoner after admission to a hospital. OAG 82-403 .

When the local jail is at its capacity and the fiscal court contracts with another county or a city to provide detention facilities for such excess, the jailer generally procures the necessary drivers and guards required to transport prisoners to the jail to be used under the contract, and this should be done by closely cooperating with the fiscal court, such that it knows precisely and in detail what is required under that jail plan; the funding of such necessary personnel clearly rests with the fiscal court under KRS 441.006 and 441.008 (now KRS 441.025 and 441.235 ). OAG 82-421 , modified by OAG 82-421 .

City police staff may take an arrested person, where the local courts are not open or available for an appearance, to the local jailer who must accept the prisoner for housing in the local jail, or in the contract jail where no space is available in the local jail, until the court magistrate becomes available. The local jailer must transport such prisoner (who is to be tried locally) to the contract jail, except where otherwise agreed by contract. OAG 82-476 .

Where the fiscal court of the first county has, pursuant to KRS 441.006(2)(b) (now KRS 441.025(2)(c)), contracted with a second county to house prisoners who will be tried by the courts in the first county, the jailer or his deputies of the first county, in the absence of an agreement to the contrary, has the responsibility of the transportation of such prisoners to the contract jail and back where necessary, and under subsection (3) of this section of transporting such prisoners to the proper court. OAG 82-549 .

Although this section is rather generally worded, the primary duty of transporting prisoners to the courts rest upon the sheriff, unless the circumstances fall within one of the exceptions established by subdivisions (1)(a)(b) and other former provisions of this section. However, under KRS 71.050 , the jailer, as an officer of the court subject to the court’s command, shall perform such duty when ordered to do so by the court. OAG 82-550 , aff’g 80-23 and modifying 82-421. (Opinion prior to 1996 amendment.)

Refusal of jailer to conduct the transport of county jail prisoner who was in need of medical attention was valid since it is the duty of the sheriff to furnish transportation in such cases after being informed of the need by the jailer. OAG 82-578 .

When a county jail prisoner needs medical attention the county judge/executive or the fiscal court have no authority to enforce KRS 71.040 and this section relating to the relative responsibilities of the jailer and the sheriff in obtaining such attention for the prisoner. OAG 82-578 .

Where a county contracts with another county for incarceration of its prisoners, the jailer in the county of trial, by the explicit and certain terms of subsection (3) of this section, is given the responsibility for transporting prisoners to and from the county where the prisoners are incarcerated, except as otherwise agreed by contract; this would include transporting the prisoners to the county of trial for medical attention and treatment. However, where the prisoners are to be taken to medical authorities in the county where the prisoners are incarcerated, such transportation of ill or injured prisoners to the medical authorities rests with the sheriff of the county of incarceration. OAG 83-51 .

Where a first county’s jail is closed and has necessitated the fiscal court’s contracting with other counties for the housing of the county’s prisoners, the jailer of that first county has the responsibility for transporting that county’s prisoners from the now closed county jail to a jail or jails made available under contract by one or more other counties, except as otherwise agreed in such contracts. This responsibility of transporting such county prisoners to the contract jails applies to the county jailer, regardless of whether the arresting officers were city policemen, county policemen or state police officers. OAG 83-299 .

An arresting officer in a county which has closed its jail and contracted with other counties for housing its prisoners has the responsibility of either bringing the arrested person to the proper court, if in session, or to that county’s jailer for transportation to a contract jail, where the prisoner will await court appearance. OAG 83-299 .

Where the local jail is closed and the prisoners are transported to a jail in another county, the local jailer is responsible for transporting such prisoners to and from such detention facility; however, the providing of the necessary vehicle for such transportation is the same as if the local jail were operational, that is, it is a joint responsibility of the fiscal court and jailer. OAG 83-368 .

Off-duty members of a police department, located in a county having no county jail, may serve as assistants to the county jailer and receive compensation from the county for transportation of prisoners to a jail in an adjacent county so long as the police officers are employed as drivers of vehicles or guards; the off-duty police officers could not serve as deputy jailers. OAG 83-450 .

A county sheriff or local police officer cannot be paid an arrest fee and transportation expenses for arresting and transporting a member of the National Guard pursuant to a “Warrant of Arrest on Military Charges.” OAG 83-487 .

The fiscal court has the responsibility of procuring the necessary automobiles for the sheriff’s statutory functions where it appears that the sheriff’s fees are not wholly sufficient for that purpose; thus, to the extent that the expense allowance and sheriff’s fees are not wholly sufficient to fund the acquisition cost of automobiles and the cost of operation, the fiscal court has the responsibility of funding such costs out of the county treasury, under available budgeted county funds. OAG 84-140 .

Subsection (3) of this section requires the county jailer to transport prisoners, who are subject to the county courts, to and from jail facilities in other counties, which prisoners are in excess of the county jail space available, where the county contracts with such other counties for jail space, except as otherwise agreed by contract. The subsection does not require formal written contracts; it is sufficient that there is an oral or informal understanding relating to the contractual arrangement. OAG 84-140 .

Until July 13, 1984, where the jailer’s deputy assists the jailer as transportation officer, the county treasurer should disburse the compensation earned and payable to this deputy from the available budgeted “jail budget” funds; on and after July 13, 1984, the jailer’s deputy can no longer pursue that role and it is then up to the fiscal court to provide any necessary vehicles, drivers and guards for whoever is transportation officer. OAG 84-179 .

A District Judge could order a jailer/transportation officer to transport an arrestee to a treatment facility. OAG 84-180 .

After July 13, 1984, when a prisoner has been arrested and lodged in another county on a warrant issued by a county whose jail is closed, it is the fiscal court’s responsibility to transport that prisoner back to the county holding the warrant. OAG 84-180 .

If the fiscal court did not designate the county jailer as transportation officer, the jailer would be required, under this section, to serve as bailiff to the Circuit and District Courts of the county, as provided in KRS 71.050 ; in addition, the fiscal court, under KRS 67.130 , could require the jailer to serve as custodian of county buildings and grounds, provided that such property custodian duties did not conflict with his role as court bailiff since, under the statutory provisions, the bailiff function has priority. OAG 84-231 .

In a county having no jail, the fiscal court, not the jailer as transportation officer, would have the authority to hire, under the jail budget, any necessary personnel for transporting prisoners. OAG 84-289 .

Where a county has a county jail in full operation, under a former provision of this section, the sheriff of that county has the responsibility of transporting that county’s prisoners (prisoners to be tried in that county) as necessary; the sheriff of that county must also transport that county’s prisoners who need medical care or attention, as determined pursuant to KRS 441.045(9). OAG 84-330 . (Opinion prior to 1996 amendment.)

Where the state police arrested an individual and brought the individual to a county jail and placed said individual in the custody of the jailer and the jailer then determined he did not have space for the individual and made arrangement for the prisoner to be housed in another facility since the prisoner was detained in the county jail even though he may not have been assigned to a specific room or cell he was at that point confined in a detention facility until he was transported to another facility, thus under former provision of this section the sheriff of the county has the responsibility to transport the prisoner to another detention facility. OAG 84-349 . (Opinion prior to 1996 amendment.)

If some person other than the sheriff is to legally transport excess prisoners to another county jail, it would require an order of the local court which has criminal jurisdiction of the prisoner. OAG 84-354 .

Where a county has a jail, the sheriff is required to transport the prisoners, charged in that county, as such transportation becomes necessary; this responsibility rests with the sheriff of that county, even where the prisoners must be taken to another county jail for lack of space in the first county’s jail. OAG 84-354 .

Where a county has a holdover jail, the fiscal court should establish a reasonable salary for the jailer, based upon his range of functions, as described in subsection (4) of this section, KRS 71.050 , and 67.130 , and actual performance thereof. OAG 85-6 .

Where there is no county jail, this section permits the fiscal court to appoint a transportation officer, who may be the jailer, or the sheriff or someone else; however, regardless of the person appointed, under those three choices, there is no statutory provision requiring the transportation officer to live at the closed jail, or any particular place. Under KRS 71.020 , where there is a jail in operation, and where the jail is suitable for living purposes, the jailer, or one of his deputies, may reside in the jail; however, even if the jailer is the transportation officer, KRS 71.020 does not apply, since it applies only to an operational jail. OAG 85-44 .

The statutory duty imposed upon the sheriff to transport prisoners (except in an urban county, and as otherwise provided), transcends availability of funds. If a county does not have resources to pay for prisoner transportation, the sheriff’s office must nonetheless carry out such responsibility as part of the statutorily assigned duties of the office. OAG 91-88 .

Fiscal court not prohibited from hiring, as a county employee, one also holding the office of constable, to assist in transporting or guarding prisoners as long as there is no statutory incompatibility between the two (2) positions. OAG 91-175 .

The statutes place the general responsibility for transporting prisoners with the sheriff, with the fiscal court being responsible for providing funding for such responsibility through the jail budget. OAG 92-47 .

If the fiscal court requires the jailer to serve as a prisoner transportation officer, he could only be assigned additional duties as bailiff if, it is first determined that both functions can be compatibly performed (prisoner transportation responsibilities might involve scheduling conflicts with bailiff duties), the jailer agrees to such additional duties, and additional compensation for such duties is provided. OAG 92-128 .

Implicit in the provisions of this section is that a jailer, in a county which does not have a jail (as in Spencer County), is required to perform either prisoner transportation duties, or bailiff duties, but not both. OAG 92-128 .

House Bill 408 amended KRS 67.130 and subsection (4) of this section to provide that the fiscal court may no longer require the jailer to act both as bailiff to the Circuit and District Courts, and as custodian of county buildings and grounds. OAG 92-128 .

Subdivision (3) (c) of KRS 441.530 (now repealed) is a very flexible statutory provision and allows the fiscal court great leeway when it comes to counties which operate a holdover jail. OAG 94-10 .

It is up to the fiscal court to adopt a transportation plan for transportation of prisoners as necessary; however, if the fiscal court does not adopt a transportation plan then transportation of prisoners will be provided for as provided in subsection (1) of this section. OAG 94-10 .

Regarding transportation of prisoners from the county jail to the Circuit Court, it is up to the fiscal court to adopt a transportation plan; the simplest procedure would be to designate either the jailer or sheriff to be responsible for transporting prisoners in all cases so as to avoid the inevitable conflicts which would arise when the sheriff or jailer would transport the prisoners depending on the situation. OAG 94-10 .

According to this section, in a county that has a jail, is not an urban-county, and unless otherwise ordered by the court, responsibility for transportation of prisoners held on criminal charges in the county jail, from the jail to a psychiatric facility, rests with the county sheriff. OAG 95-7 .

441.520. Transfer of prisoners to secure jail — Circuit Judge may order — Agreement between originating jail and receiving jail — Restrictions on receiving jail — Transport by sheriff — Review of transfer order by Circuit Judge.

  1. As used in this section:
    1. “Originating jail” means a jail that has been ordered by the court to transfer prisoners to a receiving jail; and
    2. “Receiving jail” means a jail that has been ordered by the court to receive prisoners from an originating jail.
    1. If there is danger or probable danger that any or all prisoners confined in a jail will be removed from the jail by violence, the Circuit Judge shall order the transfer of those prisoners to the jail of the nearest county in which the jail is secure and the prisoners can be safely kept. The order shall include evidence of the danger or probable danger to the prisoners. When any such order is made, and a copy is given to the jailer of the receiving jail, he or she shall receive all such prisoners. If a Circuit Judge is not in the county, the order of transfer may be made by a District Judge, who shall deliver the order, or a copy thereof, to the circuit clerk for revision by the Circuit Court. (2) (a) If there is danger or probable danger that any or all prisoners confined in a jail will be removed from the jail by violence, the Circuit Judge shall order the transfer of those prisoners to the jail of the nearest county in which the jail is secure and the prisoners can be safely kept. The order shall include evidence of the danger or probable danger to the prisoners. When any such order is made, and a copy is given to the jailer of the receiving jail, he or she shall receive all such prisoners. If a Circuit Judge is not in the county, the order of transfer may be made by a District Judge, who shall deliver the order, or a copy thereof, to the circuit clerk for revision by the Circuit Court.
    2. Except as provided in paragraph (a) of this subsection, before ordering the transfer of a prisoner from an originating jail to a receiving jail, a Circuit Judge shall receive a written agreement between the originating and receiving jails. The written agreement shall specify that the receiving jail has agreed to house the prisoner or prisoners and that the originating jail shall pay the prisoner’s expenses in accordance with subsection (3)(a) and (b) of this section. If the Circuit Judge orders the transfer before receiving the written agreement, the receiving jail shall not be required to house the prisoner nor shall the receiving jail’s jailer be subject to contempt for failing to obey the transfer order.
  2. In the event a prisoner is transferred from an originating jail to a receiving jail, the receiving jail shall:
    1. Charge no more than three (3) times the per diem amount determined according to KRS 431.215(2). However, the per diem rate charged by the receiving jail shall not exceed the combined cost of the prisoner’s room and board, administrative processing or booking, and any evidence-based programming the prisoner receives;
    2. Perform only medically necessary procedures on the prisoners, as determined by the receiving jail’s medical provider. The originating jail shall be financially responsible for these medically necessary procedures. If a prisoner is sent out of the receiving jail for more than eight (8) hours for a medically necessary procedure, the originating jail shall be financially responsible for all receiving jail personnel costs related to the prisoner’s transportation until the prisoner is returned to the receiving jail; and
    3. Be no more than two (2) geographically contiguous judicial districts away from the originating jail.
  3. The sheriff of the county of the originating jail shall be responsible for the transportation of any prisoners transferred pursuant to this section. For those prisoners transferred pursuant to subsection (2)(a) of this section, the sheriff shall transfer the prisoners in accordance with KRS 441.530(2)(a).
  4. To ensure the ongoing safety and security of the prisoners, any Circuit Judge who orders the transfer of a prisoner from an originating jail to a receiving jail shall review his or her transfer orders every sixty (60) days, with input from the originating and receiving jails.

History. 2238, 2239: amend. Acts 1976 (Ex. Sess.), ch. 12, § 3, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 458, effective January 2, 1978; 1982, ch. 385, § 40, effective July 1, 1982; 2020 ch. 109, § 1, effective April 24, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 441.030 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Presumptions.

In the absence of anything appearing in the record to the contrary, it must be presumed that the judge’s action under this section was based upon some of the grounds authorized by the statute. White v. Commonwealth, 120 Ky. 178 , 85 S.W. 753, 27 Ky. L. Rptr. 561 , 1905 Ky. LEXIS 86 ( Ky. 1905 ).

2.Prejudice.

Allegation of prejudice on part of trial court on ground that trial judge had defendant transferred from one jail to another for safekeeping was not a showing of prejudice, since such transfer is authorized by this section. Foster v. Commonwealth, 348 S.W.2d 759, 1961 Ky. LEXIS 31 ( Ky. 1961 ), cert. denied, 368 U.S. 993, 82 S. Ct. 613, 7 L. Ed. 2d 530, 1962 U.S. LEXIS 1855 (U.S. 1962).

3.County Jail Not Mandatory.

A county fiscal court has no mandatory duty to provide a jail facility within its boundaries; counties may confine their prisoners in facilities outside their territories. Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982).

Cited in:

Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Opinions of Attorney General.

A county jailer has no statutory authority to receive misdemeanants convicted in the inferior courts of another county. OAG 65-420 .

Public officials may take proper emergency action to insure appropriate detention facilities in the event of lawlessness involving many persons. OAG 67-354 .

A Circuit Judge can prohibit a District Judge or trial commissioner from exercising any authority under this section except where the District Judge is “filling in” for the absent Circuit Judge. OAG 80-129 .

Under the literal language of this section, the transfer of prisoners from one county jail to another for security purposes or where there is no county jail relates exclusively to prisoners under the jurisdiction of the Circuit Court, conversely, it cannot be used as a vehicle for the transfer of District Court prisoners. OAG 80-129 .

A sheriff is required to transport prisoners placed in his custody as far as is necessary to execute the orders of the courts as to the prisoners’ place of confinement. OAG 80-482 .

If the Circuit Court has ordered the transfer of a prisoner to another county’s jail because of the failure of the fiscal court to provide adequate facilities to house the prisoner, then the sheriff may be reimbursed as per the provisions of KRS 64.070 from county funds; the court must state in its order that the costs shall be borne by the county. OAG 80-482 .

The judge has the primary duty to determine where the defendant is to be committed and to enter an order directing such commitment; however, the court may order the sheriff to keep it informed of what facilities are available for housing the prisoners, and where the judges have ordered the sheriff to keep them informed of what facilities are available to house prisoners, he must do so. OAG 80-482 .

If there is a hospital in another county that will receive a mentally ill prisoner under the terms laid out in KRS 202A.040 (repealed), then a county jailer would not be required to receive the prisoner unless ordered to do so by the local court of jurisdiction and that court would not lose jurisdiction over the prisoner merely because he is detained in a jail in another county. OAG 81-164 .

Where a peace officer detains a mentally ill person pursuant to KRS 202A.040 (repealed) and there is no hospital in the county that will accept the mentally ill person pending a hearing, then the local county jailer or his deputy must accept the mentally ill person, provided there is available space in the jail for him, under the provisions of KRS 71.040 ; however, the determination of whether the jail space is available and adequate should be left to the local court of jurisdiction and, if the jailer believes the space is not available and adequate, he should receive the prisoner lawfully committed, and then take the space problem to the court for final resolution pursuant to this section. OAG 81-164 .

KRS 44.020 , concerning allowance of claims against the state treasury, may be read together and applied with KRS 64.070(2) and (4), which concern compensation for conveyance of prisoners, this section and KRS 441.040 and 441.050 (now KRS 441.530 and 441.540 ). OAG 81-336 .

KRS 441.030 to 441.050 (now KRS 441.520 to 441.540 ) do not apply to transportation of juveniles in nonfelony cases from one county to another in order that the juvenile may be detained in a proper facility. OAG 82-111 .

Under this section, where there is no jail in County A or the jail there is insecure, or there is danger or probable danger that the defendants incarcerated under any order of the court will be removed from the jail by violence, the Circuit Judge of County A shall by an order of record direct that such prisoners be transferred to County B, the nearest county in which the jail is secure; in that situation, the Circuit Judge of County A is ordering such prisoners to be held in County B and, thus, the fiscal court of County A is responsible for the jail costs occasioned by the jailer in County B, pursuant to KRS 441.006(1) (now KRS 441.025(1)). OAG 84-88 .

Research References and Practice Aids

Cross-References.

Assistance, when jailer may summon, KRS 432.510 .

Fiscal court, securing sufficient jail, KRS 67.080 .

Prisoners, arming when mob threatens, KRS 432.510 .

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

441.530. Manner of transfer — Compensation of officers — Computation of expenses.

  1. As used in this section, “receiving jail” means a jail that has been ordered by the court to receive prisoners.
    1. Immediately upon the receipt of a copy of an order made pursuant to KRS 441.520(2)(a), the sheriff, or if there is no sheriff, the coroner, shall transfer the prisoners to the receiving jail. He or she shall deliver the prisoners to the jailer of the receiving jail, with a copy of the order, and take from him or her a receipt for the prisoners, which he or she shall return to the office of the circuit clerk of the county from which the removal was made. The clerk shall file the receipt in his or her office. (2) (a) Immediately upon the receipt of a copy of an order made pursuant to KRS 441.520(2)(a), the sheriff, or if there is no sheriff, the coroner, shall transfer the prisoners to the receiving jail. He or she shall deliver the prisoners to the jailer of the receiving jail, with a copy of the order, and take from him or her a receipt for the prisoners, which he or she shall return to the office of the circuit clerk of the county from which the removal was made. The clerk shall file the receipt in his or her office.
    2. The receiving jail shall receive the prisoners and safely keep them until they are properly discharged. If the receiving jail’s jailer fails to accept and keep such prisoners, that jailer and his or her sureties shall be liable in the same manner and to the same extent as if the prisoners had been regularly committed by an order of the Circuit Court of his or her county.
    1. The sheriff conveying the prisoners to the receiving jail, and such guards as the judge directs him or her to take, not exceeding the number of guards allowed in taking convicts to the penitentiary, shall receive the compensation and mileage allowed by KRS 64.070 for taking convicts to the penitentiary. The compensation shall be allowed by the Circuit Judge directing the transfer and paid out of the State Treasury, unless there was no jail in the county or it was rendered insecure by the failure of the fiscal court to keep it in the requisite condition, in which case it shall be paid in accordance with paragraph (b) of this subsection. The Circuit Judge, in making the allowance, shall state in the order out of which fund it shall be paid. The order of the judge directing the transfer shall be conclusive evidence that the transfer was proper and to the right jail, and shall be a justification to the receiving jail’s jailer for holding any such prisoner in any action against him or her for false imprisonment. (3) (a) The sheriff conveying the prisoners to the receiving jail, and such guards as the judge directs him or her to take, not exceeding the number of guards allowed in taking convicts to the penitentiary, shall receive the compensation and mileage allowed by KRS 64.070 for taking convicts to the penitentiary. The compensation shall be allowed by the Circuit Judge directing the transfer and paid out of the State Treasury, unless there was no jail in the county or it was rendered insecure by the failure of the fiscal court to keep it in the requisite condition, in which case it shall be paid in accordance with paragraph (b) of this subsection. The Circuit Judge, in making the allowance, shall state in the order out of which fund it shall be paid. The order of the judge directing the transfer shall be conclusive evidence that the transfer was proper and to the right jail, and shall be a justification to the receiving jail’s jailer for holding any such prisoner in any action against him or her for false imprisonment.
    2. If a transfer of prisoners is necessary because there is no jail in the county or because the jail was rendered insecure by the failure of the fiscal court to keep it in the requisite condition, the cost of lodging the prisoners in the receiving jail shall be borne by the fiscal court of the county from which the transfer was made at a rate set by agreement between the two (2) fiscal courts involved. If the fiscal courts are unable to reach an agreement, the Circuit Judge who ordered the transfer shall establish the rate based on prisoner and facility cost data provided by the receiving jail’s jailer. The order of transfer shall state the reasons of the transfer.

History. 2440: amend. Acts 1982, ch. 385, § 41, effective July 1, 1982; 2020 ch. 109, § 2, effective April 24, 2020.

Compiler’s Notes.

This section was formerly compiled as KRS 441.040 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.Transporting Costs.

Nothing in this section requires a county to pay the county jailer for transporting prisoners from county seat to larger town in which Circuit Court is alternately held. Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Opinions of Attorney General.

When a court commits prisoners to jail, the jailer should have legal authority from the court in the form of a copy of the judgment stating the duration of their term in order to protect him against claims for false imprisonment, and the jailer may release the prisoners according to the terms of the judgment when it is satisfied. OAG 63-734 .

If the Circuit Court has ordered the transfer of a prisoner to another county’s jail because of the failure of the fiscal court to provide adequate facilities to house the prisoner, then the sheriff may be reimbursed as per the provisions of KRS 64.070 from county funds; the court must state in its order that the costs shall be borne by the county. OAG 80-482 .

KRS 44.020 , concerning allowance of claims against the state treasury, may be read together and applied with KRS 64.070(2) and (4), which concern compensation for conveyance of prisoners, and KRS 441.030 to 441.050 (now KRS 441.520 to 441.540 ). OAG 81-336 .

KRS 441.030 to 441.050 (now KRS 441.520 to 441.540 ) do not apply to transportation of juveniles in nonfelony cases from one county to another in order that the juvenile may be detained in a proper facility. OAG 82-111 .

The compensation to be paid to receiving county by sending county for the keeping of sending county’s prisoners must depend upon the mutual agreement of the two (2) fiscal courts, which agreement should involve a reasonable compensation for the detention services furnished, framed around the actual costs of furnishing such detention facilities; the cost elements could include a consideration of the original construction cost of the receiving county’s jail, the space allotted per prisoner, the cost of utilities, the present cost of replacement of the jail if it had to be rebuilt, the level of standards in terms of what would be considered adequate jail housing, the operational and salary costs relating to the jailer and his deputies, including furnishing of food. An agreement based upon the sending county’s sharing in both the operational and capital construction costs would be equitable, and would meet the fundamental fairness concept expressed in Const., § 2. OAG 83-26 .

Subdivision (3)(c) of this section (now repealed) is a very flexible statutory provision and allows the fiscal court great leeway when it comes to counties which operate a holdover jail. OAG 94-10 .

Research References and Practice Aids

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

441.540. Prisoner transferred to penitentiary when violence threatened — Officer’s compensation.

If there exists threatened violence or intense feeling and public indignation against a person charged with a crime and in the custody of an officer, and the Circuit Judge of the county that has jurisdiction of the offense charged is of the opinion that the person cannot be safely kept in the jail in that county, the Circuit Judge, with the consent of the Governor, may order such person removed for safekeeping to the state penitentiary most convenient to the county having jurisdiction of the offense charged. In the absence of the Circuit Judge from the county, the District Judge of the county may exercise the powers conferred by this section upon the Circuit Judge. The officer who makes the removal shall be entitled to the actual expenses in making the removal, and in addition he shall receive a fee of five dollars ($5) per day for himself and two and one-half dollars ($2.50) per day each for not more than two (2) guards. The claim for fees and expenses shall be presented for approval to the Circuit Court of the county having jurisdiction of the offense. The compensation shall be allowed by the Circuit or District Judge directing the transfer and paid out of the treasury of the responsible unit of government.

History. 2240a-1: amend. Acts 1976 (Ex. Sess.), ch. 12, § 4, effective January 1, 1978; 1976 (Ex. Sess.), ch. 14, § 459, effective January 2, 1978.

Compiler’s Notes.

This section was formerly compiled as KRS 441.050 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

Legislative Research Commission Notes.

This section was amended by two Acts of the 1976 Extraordinary Session of the General Assembly which do not appear to be in conflict and have been compiled together.

NOTES TO DECISIONS

1.Proof of Local Prejudice.

Where a defendant was transferred to a state penitentiary under this section the court stated that it could not understand why the trial court had not granted a change of venue on the presentation of proper evidence. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

2.Transporting Costs.

Nothing in this section requires a county to pay the county jailer for transporting prisoners from county seat to larger town in which Circuit Court is alternately held. Fulton v. Shanklin, 275 Ky. 772 , 122 S.W.2d 733, 1938 Ky. LEXIS 490 ( Ky. 1938 ).

Opinions of Attorney General.

Public officials may take proper emergency action to insure appropriate detention facilities in the event of lawlessness involving many persons. OAG 67-354 .

KRS 44.020 , concerning allowance of claims against the state treasury, may be read together and applied with KRS 64.070(2) and (4), which concern compensation for conveyance of prisoners, and KRS 441.030 to 441.050 (now KRS 441.520 to 441.540 ). OAG 81-336 .

KRS 441.030 to 441.050 (now KRS 441.520 to 441.540 ) do not apply to transportation of juveniles in nonfelony cases from one county to another in order that the juvenile may be detained in a proper facility. OAG 82-111 .

Research References and Practice Aids

Cross-References.

Assistance, summoning by jailer, when, KRS 432.510 .

Prisoners, arming when mob threatens, KRS 432.510 .

Kentucky Law Journal.

Vanlandingham, The Fee System in Kentucky Counties, 40 Ky. L.J. 275 (1952).

441.550. Expense of keeping and dieting prisoner transferred to penitentiary or reformatory — Who pays.

  1. The expense of keeping and dieting a prisoner transferred to the penitentiary or reformatory pursuant to KRS 441.540 shall be borne by the unit of government.
  2. The unit of government shall pay the expenses directly to the Department of Corrections.
  3. “Expenses” shall mean the fee set by the Department of Corrections.

History. 2240a-2: amend. Acts 1976 (Ex. Sess.), ch. 12, § 5, effective January 1, 1978; 1982, ch. 385, § 42, effective July 1, 1982; 1992, ch. 211, § 127, effective July 14, 1992.

Compiler’s Notes.

This section was formerly compiled as KRS 441.060 but was renumbered as this section by the Reviser of Statutes pursuant to KRS 7.136 .

441.560. Transfer of prisoners for medical treatment.

  1. When a prisoner in a jail, regional jail, or holdover is injured, is or becomes sick or ill, or requires specialized medical care or long-term medical care which is not available at the local jail, the jailer or other person in charge of the jail, regional jail, or holdover may request that the commissioner of the department, or the commissioner’s designee in writing, transfer the prisoner to a facility operated by the department or under contract to the department for the provision of necessary medical treatment and care.
  2. The commissioner, or the commissioner’s designee in writing, may authorize the transfer of the prisoner to a facility operated by the department or under contract to the department for the length of time necessary to secure medical treatment and care for the prisoner. Following medical care and treatment the prisoner shall be returned to the jail, regional jail, or holdover.
  3. If the commissioner or the commissioner’s designee, in writing, authorizes the transfer of the prisoner to a facility operated by the department or under contract to the department, then the department shall pay:
    1. The costs of transfer to and from the department’s facilities;
    2. The room, board, and related costs for the prisoner while the prisoner is in the custody of the department; and
    3. The costs for medical care, treatment, medicines, and supplies for the prisoner while the prisoner is in the custody of the department.
  4. The department shall have no legal duty to transfer any prisoner to the department for medical treatment and care. The decision of the commissioner or the commissioner’s designee, in writing, whether or not to accept a prisoner for transfer to the department shall be subject to appeal to the secretary of justice and public safety.
  5. The department shall promulgate administrative regulations relating to the transfer of prisoners to the department for medical treatment and care.
  6. When a prisoner is transferred to the department for medical care and treatment, the jailer or other person in charge of the jail, regional jail, or holdover shall notify the following persons of the reason for the transfer, the fact of the transfer, and the general reasons for the transfer:
    1. The prisoner’s next of kin;
    2. The prisoner’s attorney of record;
    3. The Commonwealth’s attorney or county attorney, as appropriate; and
    4. The Chief Circuit Judge or Chief District Judge, as appropriate.
  7. When a prisoner is returned to the jail, regional jail, or holdover by the department, the jailer or other person in charge of the jail, regional jail, or holdover shall notify the persons specified in subsection (6) of this section of the prisoner’s return.
  8. The department’s costs of providing care, drugs, medications, travel, and all other expenses authorized by this section shall be a necessary governmental expense.

History. Enact. Acts 2007, ch. 128, § 2, effective June 26, 2007.

Legislative Research Commission Notes.

(6/26/07). 2007 Ky. Acts chs. 24, 47, and 85 instruct the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in 2007 legislation confirming the reorganization of the executive branch. Such a correction has been made in this section.

Jail Construction Authority

441.605. Definitions.

As used in KRS 441.610 to 441.695 , unless the context requires otherwise:

  1. “Agreement” means a written contract between the authority and any person, firm, corporation, local government, or public entity providing for the construction, reconstruction, improvement or repair and financing of one (1) or more projects of the authority;
  2. “Authority” means the Kentucky Local Correctional Facilities Construction Authority, a body corporate and politic, and an agency and instrumentality of the Commonwealth of Kentucky created by KRS 441.615 ;
  3. “Bonds” mean revenue bonds, notes or other obligations issued under the provisions of KRS 441.625 ;
  4. “Cost” means the expenditures for construction, acquisition, financing charges, interest prior to and during construction, principal and interest on any bonds or notes or obligations issued by the authority, engineering and legal expenses, plans, specifications, cost and revenue estimates, other expenses necessary or incidental to determining the feasibility or practicability of constructing any project, administrative expenses, and such other expenses necessary or incident to the construction of and placing into operation a project, the financing of such construction and the acquisition of the project;
  5. “Lease” means a written lease executed by the authority as lessor and any local government as lessee;
  6. “Project” means any undertaking to construct, reconstruct, improve, or repair any jail or appurtenant facilities thereof for any county or urban-county government, together with all property, rights, easements and interests which may be acquired by the authority for the construction, reconstruction or repair of any jail or appurtenant facilities; or any undertaking by the authority to finance or refinance, under the provisions of KRS 441.625 , the cost of construction or reconstruction of any jail of any county or urban-county government completed and approved by the legislative body thereof since January 1, 1982, provided that such construction or reconstruction is in compliance, at the time such financing or refinancing is approved, with specifications, standards and requirements which are established by the authority to be made applicable to any undertaking by the authority pursuant to KRS 441.625 to 441.695 on or after July 15, 1983;
  7. “Jail” means any county jail and correctional or detention facilities, including correctional facilities defined in KRS 67B.020 and juvenile detention facilities, operated by and under the supervision of any county or urban-county government;
  8. “Local government” means any county or urban-county government.

History. Enact. Acts 1982, ch. 235, § 1, effective July 15, 1982.

Opinions of Attorney General.

A fiscal court can contribute $200 of county funds to the Kentucky Association of County Judge/Executives for legal expenses of a lawsuit filed against the Kentucky Local Facilities Construction Authority, where the purpose of the lawsuit is to seek a clarification and interpretation of the new jail legislation in this chapter, since this jail legislation is of immediate and pressing concern to fiscal courts in Kentucky. OAG 83-447 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.610. Legislative intent — Additional and alternative nature.

  1. KRS 441.625 to 441.695 is intended solely to provide an additional and alternative method of constructing, reconstructing, improving, or repairing and financing jails and appurtenant facilities for any local government in this state to the end that such projects expedite the provision of safe and proper facilities by a local government for the incarceration of prisoners as defined by KRS 441.005 . Nothing in KRS 441.625 to 441.695 shall be construed as prohibiting a local government from providing for the construction, reconstruction, improvement, or repair and financing of a jail and appurtenant facilities as may be otherwise provided by law.
  2. Nothing in KRS 441.625 to 441.695 shall be construed as prohibiting two (2) or more local governments from entering into a cooperative agreement for the purpose of participating with the authority in providing for the construction, reconstruction, improvement, or repair and financing of a jail and appurtenant facilities for the use and benefit of all local governments agreeing to the cooperative undertaking, but the authority shall determine the number and location of regional jails and regional detention centers, as authorized by KRS 441.625 .
  3. Subsection (2) of this section is intended solely as an alternative method to KRS 65.210 to 65.300 .

History. Enact. Acts 1982, ch. 235, § 2, effective July 15, 1982; 1992, ch. 262, § 5, effective July 14, 1992.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.615. Kentucky Local Correctional Facilities Construction Authority — Membership — Corporate character — Officers — Staff — Records.

  1. There is created and established within the Finance and Administration Cabinet a Kentucky Local Correctional Facilities Construction Authority, composed of ten (10) members who shall be:
    1. The secretary of the Finance and Administration Cabinet, or his designee;
    2. The commissioner of the Department of Corrections, or his designee;
    3. The designee of the Kentucky Jailers Association;
    4. The designee of the Kentucky County Judges/Executive Association;
    5. The designee of the Kentucky Association of Counties;
    6. The designee of the Kentucky Magistrates and Commissioners Association;
    7. Two (2) citizen members appointed by the Governor; and
    8. Two (2) members of the General Assembly appointed by the Governor.
  2. The ex officio members shall serve for the term of their respective office. The legislative members of the authority shall serve at the pleasure of the Governor.
  3. Citizen members shall begin their terms on August 1, 1982, and shall be appointed for a term of four (4) years; however, in making initial appointments, the Governor shall appoint one (1) member for a term of two (2) years, and one (1) member for a term of three (3) years.
  4. Vacancies occurring in the term of any member shall be filled in the same manner as the original appointment.
  5. The ten (10) members of this authority and their successors are a body corporate and politic constituting a public corporation and governmental agency and instrumentality of the Commonwealth, with perpetual succession and with power in that name to contract and be contracted with, to acquire and convey property, to sue and be sued, to have and use a corporate seal, and to exercise all of the usual powers of corporations not inconsistent with specifically enumerated powers.
  6. The members of the authority shall receive no compensation for their services, but shall be entitled to reimbursement for all reasonable expenses necessary and incidental to the performance of their duties and function as members of this authority.
  7. The chairman of the authority shall be the secretary of finance. The members of the authority shall elect a vice chairman and secretary from their membership.
  8. The secretary of the Finance and Administration Cabinet shall designate an employee of his cabinet to serve as treasurer of the authority. The treasurer shall give bond to the authority for a faithful accounting for all funds coming into his custody, in the amount the authority may prescribe, drawn upon a surety company qualified to do business in the Commonwealth, the premium to be paid by the Commonwealth.
  9. The authority shall establish and maintain an office and the secretary of the authority shall maintain there complete records of the authority’s actions and proceedings, as public records open to inspection. The Finance and Administration Cabinet shall provide the funds, staff assistants, facilities, and materials required by the authority in the conduct of its duties and functions. The secretary of the Finance and Administration Cabinet may require the Department of Corrections to share in the expenses incurred by the Finance and Administration Cabinet in maintaining and operating offices of the authority.

History. Enact. Acts 1982, ch. 235, § 3, effective July 15, 1982; 1984, ch. 415, § 4, effective July 13, 1984; 1992, ch. 211, § 128, effective July 14, 1992; 1992, ch. 262, § 7, effective July 14, 1992.

Legislative Research Commission Notes.

(7/14/92). This section was amended by two 1992 Acts. Where those Acts are not in conflict, they have been compiled together. Where a conflict exists, the Act which was last enacted by the General Assembly prevails, pursuant to KRS 446.250 .

NOTES TO DECISIONS

1.Constitutionality.

The former provisions in this section by which the Legislative Research Commission (LRC) was empowered to make appointments to the Local Correctional Facilities Construction Authority within the executive branch of government constituted an impermissible incursion by the LRC into the separation of powers doctrine of the Constitution. Legislative Research Comm'n ex rel. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ) (Decision prior to 1984 amendment).

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

441.620. Valid signatures or facsimiles on bonds — Quorum — Meetings — Bylaws — Regulations.

  1. If any of the officers of the authority whose signatures or facsimiles thereof appear on any bonds of the authority or on any other instruments or documents pertaining to the functions of the authority, shall cease to be such officers before delivery of the bonds, or before the effective date or occasion of such instruments or documents, the signatures, and facsimiles thereof, shall nevertheless be valid for all purposes the same as if the officers had remained in office until such delivery or effective date or occasion.
  2. Any six (6) members of the authority shall constitute a quorum.
  3. The authority shall meet not less than every six (6) months and as often as necessary to comply with the provisions of KRS 441.420 to 441.450 when called as provided in this section. Special meetings of the authority may be called by the chairman, and upon written request of two (2) members the chairman shall call a special meeting of the authority to be held not later than twenty (20) days following receipt of the written request. The chairman shall give notice through the secretary by certified mail, return receipt requested, to each member of the authority at least ten (10) days prior to the time of any meeting, unless all members of the authority waive notice in writing. The offices of the authority shall be at the seat of state government.
  4. The authority may adopt bylaws relating to its organization and internal management, and may alter the same at will. Through its bylaws, or by resolution, it shall establish stated times and places for regular meetings; and may adjourn the same from time to time. If a quorum be present at any special meeting, and it shall appear from the minutes that reasonable notice was given to absent members, or waived by them, or the minutes subsequently consented to by them, any business transacted or action taken thereat shall be as fully regular and official as if transacted or taken at a regular meeting or an adjournment thereof.
  5. The authority may adopt rules and regulations for the conducting of its business and affairs, subject to the provisions of KRS Chapter 13A.

History. Enact. Acts 1982, ch. 235, § 4, effective July 15, 1982; 1984, ch. 415, § 5, effective July 13, 1984; 2011, ch. 2, § 82, effective June 8, 2011.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.625. General powers of authority — Authorization for revenue bonds and revenue bond anticipation notes.

The authority may:

  1. Determine the number and location of regional jails and regional juvenile detention centers, in order to prevent duplication of effort and unnecessary costs;
  2. Construct, reconstruct, improve, or repair any jail and appurtenant facilities in any local government in this state, as may be determined by the authority and provided for in an agreement or agreements;
  3. Acquire and convey real estate and any improvements and buildings and facilities located thereon, for which a project is undertaken, and in the manner and under the terms as may be provided by agreement;
  4. Issue revenue bonds, and revenue bond anticipation notes of the authority payable solely from the revenues, rentals, and other funds pledged for their payment, for the purpose of paying any part of the cost of any one (1) or more projects, and to refund any of its bonds;
  5. Combine for financing purpose any two (2) or more projects;
  6. Lease as lessor any project to any local government as lessee, pursuant to the terms and provisions of a lease;
  7. Employ consulting engineers, attorneys, accountants, construction and financial experts, managers, and other employees and agents necessary in the judgment of the authority, and to fix their compensation;
  8. Make and enter into the contracts and agreements with other parties necessary and incidental to the performance of its duties and execution of its powers under KRS 441.625 to 441.695 ;
  9. Establish and enforce rules, regulations, and specifications in respect to any project undertaken by the authority, except during any period when the powers are assigned to a lessee pursuant to a lease agreement. The rules, regulations, and specifications shall be consistent with state laws and regulations pertaining to jails;
  10. Receive, accept, and expend funds or other contributions from any source, both public and private, for or in aid of any project undertaken by the authority;
  11. Create and establish a “debt service reserve” pursuant to proceedings and trust indenture of the authority;
  12. Make matching fund grants not exceeding fifty thousand dollars ($50,000) to local governments from funds determined by the authority to be available to it for the purposes, upon the terms and according to the criteria the authority shall in its discretion determine; and
  13. Do all things and perform all acts desirable, necessary, and proper to carry out and implement the powers expressly granted to the authority by KRS 441.625 to KRS 441.695 , including recommending the promulgation of administrative regulations and enactment of legislation.

History. Enact. Acts 1982, ch. 235, § 5, effective July 15, 1982; 1984, ch. 415, § 6, effective July 13, 1984; 1992, ch. 262, § 6, effective July 14, 1992.

NOTES TO DECISIONS

Cited in:

Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987).

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

Kentucky Bench & Bar.

Johnson, Reforming Kentucky’s Jails, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 14.

441.630. Contents of agreement between authority and local government — Limits of authority’s financial participation in projects.

If the authority deems it suitable, feasible, necessary, or expedient that any project or projects be financed or refinanced and constructed by the authority, the authority may make one (1) or more written agreements in which the parties may include provisions as to any of the following:

  1. Identify the project to be financed by the authority, setting forth specifications and design of the facilities to be constructed, reconstructed, improved, or repaired, and any other information which is deemed necessary and proper for the development of the project;
  2. Set forth what portions, if any, of the cost of the project have been or shall thereafter be contributed by the authority from the funds and other resources available to it during the then current biennium and not previously obligated. The authority’s contribution from its funds, excluding rentals received under leases made by the authority and any contribution, grant, or gift made to the authority by a local government, person, or entity other than the state, for the use and benefit of the project, shall not exceed ninety percent (90%) of the cost;
  3. Set forth agreements for planning, design, acquisition of property, soliciting construction bids, awarding construction contracts, issuing of work orders, and other steps necessary or incidental to the construction of the project, and authorizing and selling bonds for the project;
  4. Agree that upon completion of the project the lessee will continuously pay all of the cost of repairing, maintaining, and operating the project;
  5. Agree that upon the happening of stated events and the performance of stated conditions not inconsistent with law, the authority shall convey the project to the lessee;
  6. Set forth the terms and provisions of lease or proposed conveyance to be entered into by and between the authority and any local government, including the requirement that all new jail construction projects receiving any authority funding shall provide an agreed upon number of beds for state prisoners at a rate set by the commissioner of the Department of Corrections but which in no case shall be less than seventy-five percent (75%) of the actual daily cost of maintaining a prisoner;
  7. Agree that upon determination of the amount of bonds to be issued by the authority for the project and the interest rate or rates the bonds are to bear, and prior to the delivery of any bonds to the purchaser, the rental to be paid during the term of the lease and each term for which the lease may be renewed shall be established according to a method of computation set forth in the proposed lease, and that the authority and lessee, each by authorized persons, shall execute the lease and file the original or a signed counterpart in the office of the authority, and the Secretary of State of the Commonwealth;
  8. Agree to establish any method of interim financing by the authority during the construction of any project, with borrowed funds from any bank, trust company, or banking institution, the funds to be amortized from money obtained through the sale of revenue bonds before, during, or at completion of the construction of such project or projects; and
  9. Agree to establish guidelines for the construction, reconstruction, improvement, or repair of projects determined by the authority to qualify for grants from the authority.

History. Enact. Acts 1982, ch. 235, § 6, effective July 15, 1982; 1984, ch. 415, § 7, effective July 13, 1984; 1990, ch. 497, § 16, effective July 13, 1990; 1992, ch. 211, § 129, effective July 14, 1992.

Opinions of Attorney General.

Acts 1982, ch. 54, amending KRS 337.010 , 337.505 , 337.520 , and 337.530 , relating to prevailing wages, is applicable to construction projects carried on by the Kentucky local correctional facilities construction authority. OAG 82-314 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.635. Leases between authority and local governments authorized — Contents.

The authority and any local government are authorized and empowered to enter into a lease with respect to any project according to any agreement or agreements made pursuant to KRS 441.630 . Any lease may contain, in substance, any of the following provisions and such other provisions not inconsistent herewith as the authority and local government may deem appropriate and desirable:

  1. That the lease is for the remainder of the fiscal period in which it is dated and executed, and is automatically renewable for the succeeding fiscal period, one (1) at a time, until the final maturity date of the bond issue to which the lease is related, or until the local government notifies the authority in writing within sixty (60) days before the expiration of the lease that the local government will not renew said lease;
  2. That with respect to the fiscal period in which the lease is dated and executed, the local government shall otherwise be firmly bound only (a) to contribute to the authority such portions, if any, of the cost of the project as the agreement prescribes shall be paid by the local government; and (b) to pay the authority the rental prescribed for such fiscal period;
  3. That if the local government shall fully perform all such obligations during such initial term of the lease, it shall have an exclusive option to automatically renew the lease at the time and in the manner prescribed for the ensuing fiscal period, effective on the first day thereof; no local government shall be or become in any way obligated to pay the rental stipulated for such fiscal year unless the lease be so automatically renewed; and that the local government shall, upon any such renewal, be firmly bound to pay to the authority the rental stipulated for such fiscal period as a general obligation of the local government to be paid from any funds available to the local government required by law or by previous binding contract to be devoted to some other purpose;
  4. In like manner and subject to the same conditions and provisions as are set forth in subsection (3) of this section, if the local government shall in the first ensuing fiscal year fully perform its obligations and pay to the authority the rental stipulated for such fiscal period, the local government shall have another exclusive option to automatically renew such lease for another fiscal year, and so on for successive fiscal periods until the final fiscal period for which the lease may be renewed;
  5. That so long as the lease is renewed from time to time and the local government fully performs all its obligations as lessee, including payment of the rental stipulated in the lease,
    1. The revenues of the project shall be collected, segregated, distributed, deposited, secured, disbursed and accounted for in strict conformity with the proceedings and trust indenture of the authority, and the aggregate of such revenues properly accounted for and deposited pursuant to said proceedings and trust indenture shall, to the extent provided in the lease, be a credit against the local government’s rental or other obligations for the current fiscal period under the term of the lease, and
    2. Any revenues collected pursuant to KRS 441.685 , or other funds as may be provided and made available to the authority by the Commonwealth or other sources, and set aside pursuant to an agreement, shall be applied as provided in said proceedings and trust indenture and shall, to the extent provided in the lease, be a credit against the local government’s rental or other obligations for the then current fiscal period under the lease.

History. Enact. Acts 1982, ch. 235, § 7, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.640. Revenue bonds issued by authority — Limits on first issue — Provisions for delivery of bond or note certificates.

  1. The authority may provide for the issuance of revenue bonds to pay any part of the cost of any projects undertaken pursuant to an agreement and lease; provided that, the authority shall not issue bonds before July 15, 1983, and until the total amount of revenues collected and deposited in the authority’s fund equals or exceeds two million dollars ($2,000,000). The principal and interest on such bonds are payable solely from the funds provided for such payment. Any issue may be in one (1) or more series and any such series may enjoy equal or subordinate status with respect to the pledge of funds from which they are payable, shall be dated, shall bear interest at such rate or rates as established by the authority, shall mature at such time or times not exceeding forty (40) years from their date or dates, all as may be provided by the authority, and may be made redeemable before maturity, at the option of the authority, at such price or prices and under such terms and conditions as may be fixed by the authority prior to the issuance of the bonds. The authority shall determine the form of the bonds and shall fix the denomination of the bonds and the place or places for payment of principal and interest, which may be at any bank or trust company within or without the Commonwealth or at the office of the Finance and Administration Cabinet. The bonds shall be signed by the facsimile signature of the chairman or secretary of the authority, and the seal of the authority or a facsimile thereof shall be affixed thereto and attested by the manual signature or a facsimile thereof of the secretary or chairman of the authority. All bonds issued under the provisions of KRS 441.625 to 441.695 shall have all the qualities and incidents of negotiable instruments under the uniform commercial code, KRS Chapter 355. The authority may sell such bonds at public or private sale.
  2. The proceeds of the bonds of each issue shall be used solely for the payment of the cost of the project or projects for which such bonds shall have been issued, and shall be disbursed in such manner and under such restrictions, if any, as the authority may provide in the proceedings authorizing the issuance of such bonds or in the trust indenture securing the same. If the proceeds of the bonds of any issue, by error of estimates or otherwise, shall be less than such cost, additional bonds may in like manner be issued to provide the amount of such deficit, and, unless otherwise provided in the proceedings authorizing the issuance of such bonds or in the trust indenture securing the same, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority of the bonds first issued. If the proceeds of the bonds of any issue exceed such cost, the surplus shall be deposited to the credit of the sinking fund or funds for such bonds or any account or accounts therein as the authority shall have provided in the proceedings or trust indenture authorizing and securing such bonds.
  3. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue notes or temporary bonds exchangeable for definitive bonds when such bonds shall have been executed and are available for delivery. The authority may also provide for the replacement of any bonds which shall become mutilated or shall be destroyed or lost.
  4. The terms of the trust indenture under which bonds or notes are issued may delegate to the trustee the authority to establish procedures for the physical delivery of bond or note certificates either at the time of original issuance or on subsequent transfers but any such method shall be subject to the approval of the authority.

History. Enact. Acts 1982, ch. 235, § 8, effective July 15, 1982; 1984, ch. 415, § 8, effective July 13, 1984.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.645. Revenue bonds are not debt of Commonwealth.

Bonds issued by the authority under the provisions of KRS 441.625 to 441.695 do not constitute a debt of the Commonwealth or of any political subdivision thereof, or a pledge of the faith and credit of the Commonwealth or of any such political subdivision, but such bonds shall be payable solely from the funds, and security, provided therefor under the provisions of KRS 441.625 to 441.695 , and all such bonds shall contain on the face thereof a statement to that effect.

History. Enact. Acts 1982, ch. 235, § 9, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.650. Trust indenture to secure bonds.

In the discretion of the authority, any bonds issued under the provisions of KRS 441.625 to 441.695 may be secured by a trust indenture by and between the authority and a corporate trustee, which may be any trust company or bank having the powers of a trust company in or outside of Kentucky. Such trust indenture or the proceedings providing for the issuance of such bonds may pledge or assign the rents and other revenues to be received. The trust indenture or proceedings may contain provisions for protecting and enforcing the rights and remedies of the bondholders which are reasonable and proper and not in violation of law, including covenants setting forth the duties of the authority in relation to the acquisition of property and the construction, improvement, maintenance, repair, and insurance of the project or projects in connection with which such bonds are authorized, the rates or rental charges, and the custody, safeguarding and application of all moneys, and may restrict the individual right of action by bondholders. It is lawful for any bank or trust company which may act as depository of the proceeds of bonds or of revenues to furnish such indemnifying bonds or to pledge such securities as may be required by the rights and remedies of the bondholders and of the trustee. In addition, any such trust indenture or proceedings may contain such other provisions as the authority may deem reasonable and proper for the security of the bondholders. All expenses incurred in carrying out the provisions of such trust indenture or proceedings may be treated as a part of the cost of the project or projects.

History. Enact. Acts 1982, ch. 235, § 10, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.655. Rights and remedies of bondholders.

Any holder of bonds issued under the provisions of KRS 441.625 to 441.695 and the trustee under any trust indenture, except to the extent the rights herein given may be restricted by such trust indenture, may, either at law or in equity, by suit, action, mandamus or other proceedings, protest and enforce any and all rights under the laws of the Commonwealth or granted under KRS 441.625 to 441.695 or under such trust indenture or proceedings to be performed by the authority or by any officer or employees thereof, including the fixing, charging and collecting of rents.

History. Enact. Acts 1982, ch. 235, § 11, effective July 15, 1982; 1984, ch. 415, § 9, effective July 13, 1984.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.660. Status of authority’s bonds as investments.

Bonds issued by the authority are securities in which all public officers and public bodies, agencies and instrumentalities of the Commonwealth and its political subdivisions, all insurance companies, trust companies, bank associations, investment companies, executors, administrators, trustees and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or other obligations of a similar nature may properly and legally invest funds, including capital in their control or belonging to them. Such bonds are securities which may properly and legally be deposited with and received by any state or municipal officer or any agency or political subdivision of the Commonwealth for any purpose for which the deposit of bonds or other obligations of the Commonwealth is now or may hereafter be authorized by law.

History. Enact. Acts 1982, ch. 235, § 12, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.665. Authority may issue revenue refunding bonds — Purposes.

  1. The authority may provide for the issuance of revenue refunding bonds for the purpose of refunding any bonds then outstanding which shall have been issued under the provisions of KRS 441.625 to 441.695 , including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds, and, if the authority shall so determine, for the additional purpose of constructing improvements, extensions, or enlargements of the project or projects in connection with which the bonds to be refunded shall have been issued. The authority may also provide for the issuance of its revenue bonds for the combined purpose of:
    1. Refunding any bonds then outstanding which are issued under the provisions of KRS 441.625 to 441.695 , including the payment of any redemption premium thereon and any interest accrued or to accrue to the date of redemption of such bonds, and
    2. Paying any part of the cost of any additional project or projects.
  2. The issuance of such bonds, maturities and other details thereof, for rights of the holders thereof, and the rights, duties, and obligations of the authority in respect of the same, shall be governed by the provisions of KRS 441.625 to 441.695 insofar as the same may be applicable.

History. Enact. Acts 1982, ch. 235, § 13, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.670. Application of authority’s revenues — Purposes.

All moneys, received under the provisions of KRS 441.625 to 441.695 , either from the sale of bonds or as revenues, are to be held and applied solely as provided in KRS 441.625 to 441.695 . The proceedings or the trust indenture shall provide that any officer with whom, or any bank or trust company with which, such moneys are deposited shall act as trustee of such moneys and shall hold and apply the same for the purposes hereof, subject to such regulation as KRS 441.625 to 441.695 and such proceedings or trust indenture may provide.

History. Enact. Acts 1982, ch. 235, § 14, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.675. Authority’s property, income, revenues and bonds are tax-exempt.

The authority is not required to pay any taxes or assessments of any nature whatsoever, upon any project or projects owned by the authority or leased by the authority; or any property acquired or used by the authority under the provisions of KRS 441.625 to 441.695 ; or upon the incomes or revenues from the lease or use of such property. Nor will there be any tax or assessment of the Commonwealth on any bonds issued under the provisions of KRS 441.625 to 441.695 , their transfer or the income therefrom.

History. Enact. Acts 1982, ch. 235, § 15, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.680. Conveyance of property by authority.

The authority shall convey in fee simple and at no additional costs to the lessee, any project to the lessee when all bonds issued under the provisions of KRS 441.625 to 441.695 in connection with said project and all interest thereon shall have been paid or a sufficient amount for the payment of such bonds and interest thereon to the maturity thereof shall have been set aside in trust for the benefit of the bondholders.

History. Enact. Acts 1982, ch. 235, § 16, effective July 15, 1982.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.685. Local Correctional Facilities Construction Authority fund — Use of funds — Investments.

  1. There is created and established a Kentucky Local Correctional Facilities Construction Authority fund which shall consist of the following:
    1. Rentals received under leases made by the authority pursuant to KRS 441.625 to 441.695 ;
    2. Appropriations by the General Assembly;
    3. Contributions, grants, and gifts from any source, both public and private, which may be used by the authority for any project or projects;
    4. Disbursements provided under KRS 42.320(2)(b); and
    5. All interest earned on investments made by the state from moneys deposited in this fund.
  2. Moneys accruing to this fund shall be deposited by the State Treasurer in the fund’s trust and agency account, and shall be invested by the state for the benefit and use of the authority, pending their application to the expenses of the authority and to payments of interest and principal of bonds, notes, and other obligations of the authority. Notwithstanding the provisions of the foregoing sentence, at such time or times as the moneys contained in the fund are sufficient to pay the principal on all bonds, notes, and obligations of the authority that would become due in the next ensuing twelve (12) month period, the authority may use moneys in the fund in excess thereof for such purposes as provided for in KRS 441.625 to 441.695 .

History. Enact. Acts 1982, ch. 235, § 17, effective July 15, 1982; 2002, ch. 183, § 28, effective August 1, 2002.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.690. Projects exempt from KRS 56.440 to 56.540 and KRS 45A.045.

Nothing in KRS 56.440 to 56.540 and KRS 45A.045 shall be construed to apply to any project undertaken by the authority pursuant to KRS 441.625 to 441.695 .

History. Enact. Acts 1982, ch. 235, § 18, effective July 15, 1982; 1990, ch. 496, § 66, effective July 13, 1990.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

441.695. Reports of authority — Audits — Authority’s audits to be public records.

By January 1 each year the authority shall make an annual report of its activities for the preceding fiscal year to the Office of the State Budget Director and to the Interim Joint Committee on Appropriations and Revenue. Each such report shall set forth a complete operating and financial statement covering its operations during the year. The authority shall provide for an audit of its books and accounts to be made within ninety (90) days after the close of each fiscal year by certified public accountants and the cost thereof may be treated as a part of the cost of construction of the project. Such audits shall be public records within the meaning of KRS 61.870 to 61.884 .

History. Enact. Acts 1982, ch. 235, § 20, effective July 15, 1982; 1986, ch. 344, § 1, effective July 15, 1986; 2002, ch. 183, § 29, effective August 1, 2002.

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2021 Ky. Acts ch. 169, Pt. I, H, 5, c, (2) at 1102.

Regional Jail Authorities

441.800. Creation of regional jail authority — Powers of authority.

  1. Two (2) or more counties may by ordinances establish a regional jail authority.
  2. The authority shall constitute a public body corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this section and KRS 441.810 , including, but not limited to, the following powers:
    1. To sue and be sued; to have a seal and to alter the same at pleasure; to have perpetual succession; to make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the authority; and to make and from time to time amend and repeal bylaws, rules and regulations to carry into effect the powers and purposes of the authority;
    2. To acquire property by lease or purchase, construct, reconstruct or renovate a regional jail and to provide for the operation and maintenance of the facility; and
    3. To exercise the power, authority and duties of counties under this chapter and other provisions of the Kentucky Revised Statutes related to the operations of jails and the incarceration of prisoners.

History. Enact. Acts 1984, ch. 415, § 13, effective July 13, 1984.

NOTES TO DECISIONS

1.Powers.

This section plainly invests the power to operate a regional jail in the regional jail authority. The operation of a regional jail includes the management of the regional jail. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

Subdivision (2)(c) of this section which grants to the regional jail authority the power to exercise the power and duties of counties in relation to jails is not a limitation upon the power of the regional jail authority to operate regional jails but is instead an addition to its power. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

2.Maintenance and Operation.

This section provides not only for the maintenance of the regional jail by the regional jail authority but also provides for its operation by the regional jail authority. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

3.“Jail” Defined.

KRS 441.005 provides for a separate definition of the terms “Jail” and “regional jail.” A jail is defined as a county jail or correctional and detention facility while a regional jail is defined as a jail “owned and operated by two (2) or more counties through a regional jail authority as provided in this section.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

4.County Jails.

The power vested in the regional jail authority to “provide for the operation and maintenance” of the regional jail necessarily carries with it the power to employ an administrator and other personnel to operate the regional jail free of any direct participation by the jailers and fiscal courts of the counties involved. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

This section does not usurp the functions of a county jailer. The construction of a regional jail does not require the abolition or discontinuance of a county jail. If, however, after the construction of a regional jail, a county wishes to discontinue its county jail, KRS 441.510(4) prescribes the duties of the county jailer. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

KRS 71.020 which grants to the jailer the right to operate a county jail does not conflict with this section which grants to the regional jail authority the power to operate a regional jail. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 1989 Ky. LEXIS 25 ( Ky. 1989 ).

Opinions of Attorney General.

Long term housing of prisoners of the State of Kentucky is a function constitutionally mandated to the state, and the role sought to be assumed by a county in housing not only state prisoners, but prisoners of jurisdictions outside Kentucky, is not provided for by statute and is not a function necessary for operation of the county; accordingly, the county may not lawfully lease and operate a 336 bed detention center or prison for such purpose; such action is not necessary for operation of the county and handling the types of prisoners envisioned under this project is “otherwise provided for” by statute and the Kentucky Constitution. OAG 90-115 .

441.810. Composition of authority — Appointment — Terms.

  1. The regional jail authority shall be composed of members appointed by the county judges/executive of the respective counties within the authority and the jailer of the county where the regional jail is located. The county judge/executive of the most populous county shall appoint three (3) members to the authority, and the remainder of the county judges/executive shall each appoint two (2) members.
  2. Members of the authority shall serve four (4) year terms, except that one (1) of each county judge/executive’s original appointees shall serve a two (2) year term. Members of the authority shall not be compensated for their service but may be reimbursed for expenses actually incurred.

History. Enact. Acts 1984, ch. 415, § 14, effective July 13, 1984.

441.820. Court facilities in regional jail.

A regional jail may contain court facilities for judicial proceedings not involving a jury.

History. Enact. Acts 1984, ch. 415, § 16, effective July 13, 1984.

Evacuation and Relocation Plans

441.840. Departments of Corrections protocol — Local and regional jail plans — Failure to meet standards.

    1. The Department of Corrections shall, through the promulgation of administrative regulations under KRS Chapter 13A, develop an evacuation and relocation protocol for jailers of local and regional jails to follow in the development of individual evacuation and relocation plans for prisoners housed within the jails or regional jails to other facilities in the event that an emergency renders the jail or regional jail temporarily or permanently uninhabitable. The protocol shall take into account evacuation and relocation procedures for full-service jails, life-safety jails, and holding facilities for jailers who are transportation officers. (1) (a) The Department of Corrections shall, through the promulgation of administrative regulations under KRS Chapter 13A, develop an evacuation and relocation protocol for jailers of local and regional jails to follow in the development of individual evacuation and relocation plans for prisoners housed within the jails or regional jails to other facilities in the event that an emergency renders the jail or regional jail temporarily or permanently uninhabitable. The protocol shall take into account evacuation and relocation procedures for full-service jails, life-safety jails, and holding facilities for jailers who are transportation officers.
    2. Each jailer who exercises control over one (1) or more prisoners shall develop an evacuation and relocation plan based upon the department’s evacuation and relocation protocol. The Department of Corrections shall assist jailers in the development of their individual evacuation and relocation plans, and the jailers shall submit their plans to the county legislative body, which shall provide commentary to ensure that the jail evacuation plan is compatible with the relevant annexes of the local emergency operations plans.
    3. The department, in consultation with the jailers in assisting drafting the local evacuation plans, shall ensure that each individual jail evacuation and relocation plan is also compatible with the relevant annexes of the state emergency operations plans.
  1. In developing the plan for the evacuation and relocation of prisoners, the jailer shall contact other jails, regional jails, correctional facilities, and penitentiaries, and shall enter into a written agreement for the relocation of the jail’s prisoners.
  2. The jailer shall review the evacuation and relocation plan every year, and shall update it when necessary.
  3. Each jail’s and regional jail’s evacuation and relocation plan shall be filed with the department in a manner that the department determines through administrative regulations promulgated under KRS Chapter 13A.
  4. The department may provide for procedures for jailers to follow in the drafting and updating of the jail’s and regional jail’s individual evacuation and relocation plan, as well as any administrative procedures necessary to effect the requirements of this section through the promulgation of administrative regulations under KRS Chapter 13A.
  5. If the department determines that the jail’s or regional jail’s plan does not meet its standards or the jailer has not followed certain procedures set out by administrative regulation, it shall submit written notification of the fact to each county judge/executive and each jailer of each county housing prisoners in the jail or regional jail. The department may establish sanctions for noncompliance. Any sanctions shall be set out by administrative regulations promulgated under KRS Chapter 13A.
  6. The department shall promulgate the regulations permitted and required under this section no later than one hundred eighty (180) days after July 12, 2006.
  7. The jailers shall complete their evacuation and relocation plans and transmit them to the department no later than January 31, 2008. If a jailer does not complete and transmit the copy of his or her evacuation and relocation plans, the jailer shall be notified by the department of the failure and shall be subject to orders and sanctions of the department under subsection (6) of this section.
  8. The Department of Corrections may delegate the responsibility of developing the evacuation and relocation protocol to the Jail Standards Commission. If the department delegates this responsibility, it shall adopt the recommendations of the Jail Standards Commission through administrative regulations promulgated under KRS Chapter 13A. The Department of Corrections may consult and collaborate with the Jail Standards Commission on any aspect of the requirements set out in this section.

History. Enact. Acts 2006, ch. 69, § 1, effective July 12, 2006.

Penalties

441.990. Penalties.

  1. A violation of KRS 441.035 shall be deemed a Class A misdemeanor.
  2. No officer or employee of the authority shall have any interest, direct or indirect, in the sale or purchase of any bonds authorized by KRS 441.625 to 441.695 . Violation of this provision shall be punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment for not more than one (1) year, or both.

History. 2229: amend. Acts 1976 (Ex. Sess.), ch. 12, § 13, effective January 1, 1978; 1982, ch. 235, § 21, effective July 15, 1982.