NEW LEGISLATION ALLOWS COUNTY ATTORNEYS TO OPERATE THEIR OWN TRAFFIC SCHOOL, AND CHARGE A REASONABLE FEE….COURTS SHOULD BE CAUTION IN PARTICIPATING IN THIS PRACTICE

MAY 20, 2012

New legislation allows County Attorneys to Operate a Local Traffic School.

The troubling aspect of this new law, which should become effective in July of 2012., is a provision that the County Attorney may charge a “reasonable fee” for anyone assigned by the Court to attend such program. The statute reads:

(The County Attorney)…”May charge a reasonable fee to program participants, which shall only be used for payment of county attorney office operating expenses defer the costs of operation of his office”.

Some judges have expressed concern about this new law. First the statute does not state how a “reasonable fee” is set. Does that mean $10 or $500? The statute doesn’t say.

Does the “operating expense” of the county attorney allow him to hire his wife, a relative or a political supporter and to pay them under this statute?

The term “operating expenses” seems to provide almost unlimited discretion to the County Attorney to determine how this money is spent.

 

The conclusion that some judges have made is that they are troubled that they are required by this statute to assign people to attend a school as a result of charges brought by the County Attorney, and which can be used for the benefit of the County Attorney.

 

The statute is an amendment to Chapter 186 which has long authorized a State Traffic School to be operated by the Transportation Cabinet. The amendments of 2012 will apparently allow the option of the county Attorney operating his own traffic school “prior to the adjudication of the offense”.

The original traffic school provisions of KRS 186.574 allowed the District Court judge to order attendance in a traffic school only as part of the sentence imposed after the conviction of the defendant.

We find nothing in the new amendments to KRS 186.574 which imposes on the District Court the duty to assign or order any person to attend the County Attorneys’ Traffic School.

The failure of the legislature to add a provision imposing on the Court the power to order attendance at the County Attorney’s Traffic School means that Judges really have no control or authority regarding this new school. This apparently leaves it to the County Attorney to include a requirement for attendance in his plea bargaining negotiations.

Under this law, the County Attorney can use his plea bargaining powers to coerce attendance at his school, and then his office benefits financially from being able to collect a “reasonable fee” which can then be used to defray the County Attorney’s office “operating expenses”. We can see that it is possible that the County Attorney can charge for any “teaching” he might do at such a school….wouldn’t this be an “operating expense”?

This is a poorly written law, with far too much vagueness. The fee charged for such a school might be $100 in one county and $500 in another county…there is no guidance as to the definition of a “reasonable fee” in the statute.

We can find no provision in the new amendments which require a District Judge to do anything to influence who must attend this new school. Further we find no provision of this statute which allows enforcement or penalties against anyone who fails to attend the County Attorneys’ school.

We emphasize that this school is set up by the amendments to apply to defendants, “prior to the adjudication of their offense”.

We would suggest that Judges are ethically forbidden to participate in any conduct that gives the appearance of impropriety. Helping a prosecutor benefit financially from such a program might involve a Judge in an ethical issue.

We should suggest that District Judges keep their distance from the County Attorney’s Traffic School. This is a problem for the Legislature and the various ethics committees to consider.

 

THE NEW ACT STATES:

AN ACT relating to county attorney-operated traffic programs.

Be it enacted by the General Assembly of the Commonwealth of Kentucky:

Section 1. KRS 186.574 is amended to read as follows:

(1) The Transportation Cabinet shall establish a state traffic school for new drivers and for traffic offenders. The school shall be composed of uniform education and training elements designed to create a lasting influence on new drivers and a corrective influence on traffic offenders. District Courts may in lieu of assessing penalties for traffic offenses, other than for KRS 189A.010, sentence offenders to state traffic school and no other. The Transportation Cabinet shall enroll a person in state traffic school who fails to complete a driver’s education course pursuant to KRS 186.410(5).

(2) If a District Court stipulates in its judgment of conviction that a person attend state traffic school, the court shall indicate this in the space provided on the abstract of conviction filed with the Transportation Cabinet. Upon receipt of an abstract, the Transportation Cabinet, or its representative, shall schedule the person to attend state traffic school. Failure of the person to attend and satisfactorily complete state traffic school in compliance with the court order, may be punished as contempt of the sentencing court. The Transportation Cabinet shall not assess points against a person who satisfactorily completes state traffic school. However, if the person referred to state traffic school holds or is required to hold a commercial driver’s license, the underlying offense shall appear on the person’s driving history record.

(3) The Transportation Cabinet shall supervise, operate, and administer state traffic school, and shall promulgate administrative regulations pursuant to KRS Chapter 13A governing facilities, equipment, courses of instruction, instructors, and records of the program. In the event a person sentenced under subsection (1) of this section does not attend or satisfactorily complete state traffic school, the Transportation Cabinet may deny that person a license or suspend the license of that person until he reschedules attendance or completes state traffic school, at which time a denial or suspension shall be rescinded.

(4) Persons participating in the state traffic school as provided in this section shall pay a fee of fifteen dollars ($15) to defray the cost of operating the school, except that if enrollment in state traffic school is to satisfy the requirement of KRS 186.410(4)(c), a fee shall not be assessed. Any funds collected pursuant to KRS 186.535(1) that are dedicated to the road fund for use in the state driver education program may be used for the purposes of state traffic school.

(5) The following procedures shall govern persons attending state traffic school pursuant to this section:

(a) A person convicted of any violation of traffic codes set forth in KRS Chapters 177, 186, or 189, and who is otherwise eligible, may in the sole discretion of the trial judge, be sentenced to attend state traffic school. Upon payment of the fee required by subsection (4) of this section, and upon successful completion of state traffic school, the sentence to state traffic school shall be the person’s penalty in lieu of any other penalty, except for the payment of court costs;

(b) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school who has been cited for a violation of KRS Chapters 177, 186, or 189 that has a penalty of mandatory revocation or suspension of an offender’s driver’s license;

(c) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school for any violation if, at the time of the violation, the person did not have a valid driver’s license or the person’s driver’s license was suspended or revoked by the cabinet;

(d) Except as provided in KRS 189.990(28), a person shall not be eligible to attend state traffic school more than once in any one (1) year period, unless the person wants to attend state traffic school to comply with the driver education requirements of KRS 186.410; and

(e) The cabinet shall notify the sentencing court regarding any person who was sentenced to attend state traffic school who was ineligible to attend state traffic school. A court notified by the cabinet pursuant to this paragraph shall return the person’s case to an active calendar for a hearing on the matter. The court shall issue a summons for the person to appear and the person shall demonstrate to the court why an alternative sentence should not be imposed.

(6) (a) Except as provided in paragraph (b) of this subsection, a county attorney

may operate a traffic safety program for traffic offenders prior to the

adjudication of the offense.

(b) Offenders alleged to have violated KRS 189A.010 or 304.30-010, offenders holding a commercial driver’s license under KRS Chapter 281A, or offenders coming within the provisions of subsection (5)(b) or (c) of this section shall be excluded from participation in a county attorney-operated program.

(c) A county attorney that operates a traffic safety program:

1. May charge a reasonable fee to program participants, which shall only be used for payment of county attorney office operating expenses; and

2. Shall, by October 1 of each year, report to the Prosecutors Advisory Council the fee charged for the county attorney-operated traffic safety program and the total number of traffic offenders diverted into the county attorney-operated traffic safety program for the preceding fiscal year categorized by traffic offense.

(d) Each participant in a county attorney-operated traffic safety program shall, in addition to the fee payable to the county attorney, pay a twenty-five dollar ($25) fee to the court clerk which shall be paid into a trust and agency account with the Administrative Office of the Courts and is to be used by the circuit clerks to hire additional deputy clerks and to enhance deputy clerk salaries.

Section 2 KRS 15.720 is amended to read as follows:

(1) The Attorney General shall submit:

(a) To the Governor and to the General Assembly a biennial report setting forth the activities of the unified prosecutorial system for the preceding fiscal years; to be included in this report are the activities of the Prosecutors Advisory Council, an abstract of the annual report of the local prosecutors, and suggestions and recommendations for the uniform enforcement of the criminal laws of the Commonwealth; and

(b) To the Legislative Research Commission an annual report, by January 15 of each year, setting forth the total number of traffic offenders diverted into county attorney-operated traffic safety programs for the preceding fiscal year categorized by county and by traffic offense, and the fee charged by each county attorney-operated traffic safety program.

(2) Each Commonwealth’s attorney and county attorney shall be required by the council to submit such written reports as are determined necessary for the preceding calendar year.

 

 

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