Request By:
Honorable Joseph J. Wantland
Assistant Bullitt County Attorney
217 Buckman Street
Shepherdsville, Kentucky 40165
Opinion
Opinion By: Robert F. Stephens, Attorney General; Joseph R. Johnson, Assistant Attorney General
This is in response to your letter dated June 20, 1979, in which you raised two (2) questions.
(1) Is a non-resident owner of a motor vehicle who does not register his vehicle in Kentucky required to maintain liability insurance on his vehicle as a condition for operating or allowing the operation of his vehicle upon Kentucky's roadways? The answer is yes.
(2) Can a criminal defendant waive a trial by jury and have his guilt or innocence determined by the judge without the concurrence of the Commonwealth? The answer is no.
(1) Pursuant to KRS 304.39-080(5), all owners of motor vehicles who register or operate their vehicles in Kentucky or permit their vehicles to be operated by another person in Kentucky must obtain insurance for the payment of basic reparation benefits and for the payment of tort liabilities as a precondition for the privilege of operating or permitting the operation of their motor vehicles upon the streets and highways of this Commonwealth. The amounts of required minimum tort liability coverage are $10,000 for damages arising out of bodily injury by one (1) person as the result of one (1) accident, $20,000 for all damages arising out of bodily injury as the result of one (1) accident and $5,000 for all property damage resulting from one accident. (KRS 304.39-110(1)). The maximum amount of basic reparation benefits payable for all economic loss resulting from injury to any one (1) person as the result of one (1) accident is $10,000 regardless of the number of persons entitled to such benefits or the number of providers of security obligated to pay such benefits. (KRS 304.39-020(2).
KRS 304.39-080(5) makes no distinction between residents and non-residents. All owners of motor vehicles which are registered or operated in Kentucky must purchase the required insurance coverage regardless of their domicile.
With respect to the insurance sticker evidencing such coverage, KRS 304.39-085(1) states that owners of motor vehicles registered in Kentucky who are required to maintain the security mandated by KRS 304.39-080(5) must display a sticker in the rear window indicating the month, day and year the required security will expire unless renewed. Because the statute specifically refers only to owners who register their motor vehicles in Kentucky, this provision obviously does not apply to non-residents who as a general rule will not display the sticker although non-residents must maintain the required security in order to lawfully utilize kentucky roadways. To be on the safe side, a non-resident motor vehicle owner should make certain that a current insurance policy or binder is present in his motor vehicle while the vehicle is being operated in Kentucky by him or anyone else with his express or implied permission.
The penalty section for Subtitle 39 is found in KRS 304.99-060 which provides for a fine and suspension of license plates for any vehicle owner who fails to affix the sticker to his vehicle and have in full force and effect the security required by Subtitle 39 of KRS Chapter 304. At first blush, it might seem that the penalties set forth could not be applied against a nonresident motor vehicle owner since KRS 304.39-085(1) only states that an owner who registers his vehicle in Kentucky and is required to maintain the security mandated by the statute must display the sticker. KRS 304.99-060(1) imposes a penalty against an owner who fails to have the security and who fails to affix the sticker to his motor vehicle. However, attention must immediately be directed to KRS 304.99-060(5) which states as follows:
Any person cited for a violation of KRS 304.39-085 who exhibits to the trial court a written certificate executed by his insurer or its representative or agent that on the date of the citation there was in full force and effect the security required by subtitle 39 of KRS Chapter 304 shall be acquitted and the action shall be dismissed.
It is therefore apparent that the failure to affix and display the required sticker is not a criminal offense. The sticker which the motor vehicle owner is required to affix on the vehicle's window is only evidence that the owner has complied with the statutory requirement that he has purchased such security, just like the binder or policy which the non-resident owner should keep in his vehicle when it is operated in Kentucky constitutes evidence that he has complied with the mandatory insurance requirement. In any event, a current insurance policy or binder carries more evidentiary weight than a sticker. In OAG 79-278, we concluded that the requirement that non-resident owners obtain the required insurance coverage is a proper exercise of the state's police powers. As we noted in OAG 79-6, although a non-resident owner might be cited like a resident owner for failure to display the sticker and for failure to maintain the required security, both resident and non-resident owners alike must be acquitted if they did in fact have the required security in full force and effect on the citation date.
Because the failure to display the sticker does not constitute a criminal offense, a non-resident owner is still subject to the penalty section for failure to maintain the required security even though only owners who register their vehicles in Kentucky are required by KRS 304.39-085(1) to display the sticker. The objective of the mandatory insurance requirement is to prevent uninsured vehicles from being operated on Kentucky roadways -- not to require motor vehicles to display the sticker as an end in itself.
(2) In the case of Ashton v. Commonwealth, Ky. 405 S.W.2d 562 (1965), the Court found that defendants in misdemeanor cases may waive a twelve-man jury and unanimity of the jurors in reaching their verdict provided the Commonwealth agrees. In Short v. Commonwealth, Ky. 519 S.W.2d 828 (1975), the Court cited Ashton and quoted from the case at great length in finding that criminal defendants in felony cases may waive their right to a jury at trial. However, the Court was careful to note that at the trial court, the Commonwealth had agreed to trial without a jury. Id., at 830.
In our opinion, a criminal defendant cannot waive a trial by jury without the concurrence of the Commonwealth whether for misdemeanors or felonies.