Request By:
Captain Sam Tucker
Legal Advisor
Jefferson County Police Headquarters
600 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; Joseph R. Johnson, Assistant Attorney General
This is in response to your request for an opinion of this office regarding an interpretation of the enforcement provisions of Kentucky's mandatory liability insurance law. Specifically, you have posed the following questions:
(1) Is a peace officer always required to issue a citation in lieu of making an arrest of a motor vehicle owner who has failed to maintain security for minimum tort liability pursuant to KRS 189.636 and KRS 304.39-080(5)?
(2) Should an owner of a motor vehicle be cited for failure to maintain the required security when the vehicle is not under his actual or constructive control but is being operated by an unauthorized person?
(3) Should the owner of a motor vehicle be cited even though he is not physically present at the scene of the accident or traffic violation?
(1) KRS 431.015 permits a peace officer to issue a citation in lieu of making an arrest for a misdemeanor committed in his presence if there are reasonable grounds to believe that the person will appear to answer the charge. However, the right to issue a citation in no way impairs the officer's authority to undertake a physical arrest if in his judgment the circumstances require it. The peace officer always has the authority to make an arrest without a warrant for a misdemeanor committed in his presence pursuant to KRS 431.005.
(2) If the motor vehicle is being operated without the owner's permission by a thief or other unauthorized person, the owner should not be cited for a violation of KRS 304.39-110. The intent of the legislature was to hold an owner responsible only when he is operating his own vehicle or someone is operating his vehicle on his behalf or with his permission.
KRS 304.39-080(5) provides as follows:
. . . [E]very owner of a motor vehicle registered in this Commonwealth or operated in this Commonwealth by him or with his permission, shall continuously provide with respect to the motor vehicle . . . security for the payment of basic reparation benefits . . . and security for payment of tort liabilities, rising from maintenance or use of the motor vehicle. (Emphasis added).
KRS 304.39-090 states as follows:
An owner of a motor vehicle registered in this Commonwealth who ceases to maintain security as required by the provisions on security may not operate or permit operation of the vehicle in this Commonwealth until security has again been provided as required by this subtitle. All other owners shall provide such security while operating a motor vehicle in this Commonwealth. (Emphasis added).
Because the above statute specifically refers to the requirement that the vehicle be operated with the permission of the owner, the owner of a vehicle operated by an unauthorized person should not be cited.
It should also be noted that the old penalty section found in KRS 304.39-050 which is now repealed and replaced by KRS 304.39-060 penalized the owner who operates a vehicle or permits it to be operated without having the required security in effect.
(3) It is not necessary for the owner of the motor vehicle to be physically present at the scene for the peace officer to cite him for a violation of the statute. The misdemenaor has been committed in the officer's presence at the moment in which the officer has observed that the vehicle does not display the required liability insurance sticker or emblem. This is analogous to a parking violation wherein the owner is cited even though he is not physically present at the time the officer discovers the violation. Any owner who fails to maintain the required security is guilty of a "continuing violation" which is only awaiting discovery by a peace officer. If the owner of the motor vehicle can be discovered through the operator, plates or otherwise and the vehicle was being operated with the owner's express or implied permission, he should be cited.