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).

11.Applicability.

Ky. Rev. Stat. Ann. §§ 431.005(1)(d) and 431.015(2) govern when a police officer could make an arrest without a warrant for violations committed in his or her presence and, because the officer indisputably was not present on the driver’s bus, those statutes were inapplicable. Martin v. Wallace, 2022 Ky. LEXIS 126 (Ky. Apr. 28, 2022).

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).

2.Applicability.

Ky. Rev. Stat. Ann. §§ 431.005(1)(d) and 431.015(2) govern when a police officer could make an arrest without a warrant for violations committed in his or her presence and, because the officer indisputably was not present on the driver’s bus, those statutes were inapplicable. Martin v. Wallace, 2022 Ky. LEXIS 126 (Ky. Apr. 28, 2022).

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).

Cited in:

Jones v. Commonwealth, 636 S.W.3d 503, 2021 Ky. LEXIS 429 ( Ky. 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 UNPUBLISHED DECISIONS

1.Applicability.

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).

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).

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.

433.890. 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 operator’s license, personal identification card, 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;
      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;
      5. The amount paid for the material and the unit basis of the purchase, such as by ounce or pound, etc.; and
      6. For the purchase of a catalytic converter, a photocopy of:
        1. The seller’s identification that meets the minimum age requirement in paragraph (c) of this subsection;
        2. The receipt for the replacement catalytic converter; and
        3. The title or registration for the vehicle from which the catalytic converter was removed in the name of the seller;
    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, the chief of police, or the Kentucky State 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; 2022 ch. 119, § 1.

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.

433.892. 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. Failure to maintain a register of metals and objects containing metal is a Class B misdemeanor.

HISTORY: Enact. Acts 2008, ch. 83, § 2, effective July 15, 2008; 2022 ch. 119, § 2.

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.

433.894. 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. Unlawful acts relating to the purchase or disposition of metals is a Class B misdemeanor.

HISTORY: Enact. Acts 2008, ch. 83, § 3, effective July 15, 2008; 2022 ch. 119, § 3.

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. [Effective until July 14, 2022]

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.

434.415. Installation of any component of inflatable restraint system not designed in accordance with federal safety regulations — Penalties. [Effective July 14, 2022]

  1. As used in this section:
    1. “Airbag” means a motor vehicle inflatable occupant restraint system device that is part of a supplemental restraint system;
    2. “Counterfeit supplemental restraint system component” means a replacement supplemental restraint system component, including but not limited to an airbag, that displays a mark identical to, or substantially similar to, the genuine mark of a motor vehicle manufacturer or a supplier of parts to the manufacturer of a motor vehicle without authorization from that manufacturer or supplier, respectively;
    3. “Nonfunctional airbag” means a replacement airbag that meets any of the following criteria:
      1. The airbag was previously deployed or damaged;
      2. The airbag has an electric fault that is detected by the vehicle’s airbag diagnostic system when the installation procedure is completed and the vehicle is returned to the customer who requested the work to be performed or when ownership is intended to be transferred;
      3. The airbag includes a part or object, including a supplemental restraint system component, that is installed in a motor vehicle to mislead the owner or operator of the motor vehicle into believing that a functional airbag has been installed; or
      4. The airbag is subject to the provisions of 49 U.S.C. sec. 30120(j) ; and
    4. “Supplemental restraint system” means a passive inflatable motor vehicle occupant crash protection system designed for use in conjunction with a seat belt assembly as defined in 49 C.F.R. sec. 571.209. A supplemental restraint system includes one (1) or more airbags and all components required to ensure that an airbag works as designed by the vehicle manufacturer, including both of the following:
      1. The airbag operates as designed in the event of a crash; and
      2. The airbag is designed to meet federal motor vehicle safety standards for the specific make, model, and year of the vehicle in which it is or will be installed.
  2. Notwithstanding KRS Chapter 534, a person who does any of the following 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:
    1. Knowingly imports, manufacturers, sells, offers for sale, installs, or reinstalls in a motor vehicle, a counterfeit supplemental restraint system component, a nonfunctional airbag, or an object that does not comply with Federal Motor Vehicle Safety Standard No. 208 provided in 49 C.F.R. sec. 571.208 for the make, model, and year of the motor vehicle;
    2. Knowingly sells, offers for sale, installs, or reinstalls in any motor vehicle a device that causes a motor vehicle’s diagnostic system to inaccurately indicate that the motor vehicle is equipped with a properly functioning airbag; or
    3. Knowingly sells, leases, trades, or transfers a motor vehicle if the person knows that a counterfeit supplemental restraint system component, a nonfunctional airbag, or an object that does not comply with Federal Motor Vehicle Safety Standard No. 208 provided in 49 C.F.R. sec. 571.208 for the make, model, and year of the motor vehicle has been installed as part of the motor vehicle’s inflatable restraint system.
  3. This section shall not apply to an owner or employee of a motor vehicle dealership or the owner of a vehicle, who, before the sale of the vehicle, does not have knowledge that the vehicle’s airbag, or another component of the vehicle’s supplemental restraint system, is counterfeit or nonfunctioning

.

HISTORY: Enact. Acts 2003, ch. 189, § 4, effective June 24, 2003; 2022 ch. 237, § 1, effective July 14, 2022.

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 ordi