Request By:
Phelps L. Lambert, Esquire
City Prosecutor
Ohio Valley Bank Building
Henderson, Kentucky 42420
Opinion
Opinion By: Robert F. Stephens, Attorney General; Miles H. Franklin, Assistant Attorney General
This is in reply to your request for comment on local procedural aspects of collecting fines when a citation has been issued for an appearance before the Henderson Police Court. You do not specify whether the citation is issued for a misdemeanor or a traffic infraction. This distinction is of significance and will be discussed below.
You indicate that if the defendant fails to appear in response to the citation, a letter is sent by the clerk of the police court to the defendant's home address informing him of a rescheduled date. If the defendant again fails to appear, it is customary practice to try the defendant in absentia. RCr 8.28,
McKinney v. Commonwealth, Ky., 474 S.W.2d 384 (1971), OAG 75-4 and OAG 74-875 reflect that such practice is absolutely prohibitive. A defendant charged with a misdemeanor cannot be tried in his absence unless that absence is voluntary. A citation is not a court process. It merely issues from a peace officer and it does not have the legal efficacy of a summons or warrant.
Duncan v. Brothers, Ky., 344 S.W.2d 398 (1961). A court does not have jurisdiction to impose a fine without the defendant being properly before it, either by way of personal appearance or a warrant or summons. Thus a court would be prohibited from issuing what you term a "capias" for purposes of collecting the fine. We conclude that when a police officer issues a citation for a defendant to appear in court and the defendant fails to appear, the court does not have jurisdiction to try the defendant in his absence since the court has not obtained jurisdiction through any process issued by the court. If the defendant fails to appear in response to a citation the peace officer must obtain a warrant for the defendant's arrest in order to obtain jurisdiction. See RCr 2.04.
You make reference to the term "capias" in your correspondence. KRS 441.170 discusses the capias pro fine, which is still a statutorily valid method of arresting a person. However KRS 534.060 provides the method by which a court must respond to nonpayment of a fine imposed for class A and B misdemeanors and violations. Assuming that the trial court has jurisdiction of the defendant, the Code deals with the failure to pay a fine through a "show cause" order. The fine is set and the method of payment is established by the court (KRS 534.020). Upon nonpayment of a fine, the trial judge, on his own initiative or at the initiative of the prosecuting attorney, issues a show-cause order against the defendant. The defendant must enter his appearance voluntarily, or the court may have him arrested, and establish that his nonpayment was unintentional and excusable, which probably will be because of his indigency. See OAG 75-503, copy attached, which discusses the various alternatives available to the court. But note that the response to nonpayment of a fine is not applicable where the defendant executes a replevin bond pursuant to KRS 426.450.
The imposition of a jail term upon an indigent person for failure to pay a fine is constitutionally impermissible.
Tate v. Short, 401 U.S. 395 (1971);
Spurlock v. Noe, Ky., 467 S.W.2d 320 (1971); OAG 73-111, and OAG 76-400. Of course these citations do not suggest that there is constitutional infirmity in the imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so. Even where indigency is claimed, the defendant must show his default is excusable, otherwise the court can put him in jail under KRS 534.060.
You also inquire whether it is permissible to utilize the "capias" and jail a defendant at the rate of $2.00 per day if he voluntarily appears in court in response to the citation. This is an unsound practice and indeed subjects the magistrate and the prosecutor to civil suit, in violation of Tate, supra. If a defendant, in response to a show-cause order, fails to show that his nonpayment was unintentional, then the court can impose jail time for nonpayment of the fine. The jail time that can be imposed is not determined by fixed dollars per day, as under former law. Instead, it is tied to the kind of offense a defendant has committed. For a class A misdemeanor offense it is up to four months in jail or 30 days for a class B misdemeanor. For one of the five violations, it would be ten days in jail.
Although the Penal Code represents a broad revision of our prior criminal law, certain types of offenses, such as traffic offenses, Chapters 186 and 189, are not included within the Code or directly affected by it. Strictly speaking, the nonpayment of traffic fines would not be governed by the provisions of KRS 534.060. See OAG 74-675. The 1976 Legislature enacted KRS 532.005 which states that KRS Chapters 532, 533, and 534 apply to all classes of crimes committed outside the provisions of the Penal Code. Literally construed, "crimes" does not include traffic infractions. Nevertheless, although the Kentucky Penal Code specifically excludes traffic infractions from its application, we feel as if the procedures established by KRS 534.060 contain constitutional safeguards required by Tate and Spurlock, supra, and that these procedures may be properly adopted by a court as a model in attempting to insure the payment of fines for traffic violations. See OAG 75-104, which is in accord.
In conclusion, we encourage the Henderson Police Court to restructure its manner in dealing with citations, court appearances, and the payment of fines, so as to be insulated from potential law suits by defendants brought before your court pursuant to your current operation.