SENATE BILL 263. This is the primary bill coming out of the Governor’s Sexual Assault Task Force. It continues the trend of creating special laws for sex offenders, increasing penalties, and ensuring treatment. The wide-reaching provisions include the following:

• The date rape drug, gamma hydroxybutyric acid, is included as a Schedule 1 drug.
• Violent offenders are no longer eligible for shock probation under this amendment to KRS 439.265 or probation under the amendment to KRS 439.3401.
• The definition of deviate sexual intercourse under KRS 510.010 is expanded to include the "penetration of the anus of one person by a foreign object manipulated by another person." All sexual offenses involving anal penetration with foreign objects are moved to the sodomy statute.
• The one-year statute of limitations involving claims of sexual assault by one spouse against another spouse has been eliminated.
• Third and subsequent sexual assault misdemeanors are now Class D felonies. The Commonwealth must indict as a felony if it desires to proceed under this section. In a curious section that will have to be fleshed out, the statute reads that the "jury, or judge if the trial is without a jury, may decline to assess a felony penalty in a case under this section and may convict the defendant of a misdemeanor." This raises questions about lesser-included offense instructions, how the jury is to "decline to assess a felony penalty," and other concerns.
• "Megan’s Law" has been altered significantly, mostly to comply with federal statutory requirements under the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act [42 U.S.C. 14071 et seq.]. Carol Camp of the DPA has written an extensive analysis of this section of the Bill, and the reader is referred to her work, particularly for questions raised and possible challenges to the statute. The primary shift in the Bill is that information has been placed on a KSP Website rather than disseminated through the media and law enforcement. The Website carries the registrant’s photograph, his address, age, race, sex, date of birth, height, weight, hair and eye color, aliases used, brief description of the crime committed, and other information to be required by the Justice Cabinet through the regulatory process. Classifications of high, moderate, and low risk have been abolished. Hearings have been abolished. The previous definition of sex offender has been replaced by a very simple definition: "’Sex offender’ means a person who has been convicted of a sex crime as defined in KRS 17.500." There are two classifications of registrants. Registrants must register for life if they have been convicted of kidnapping of a minor, unlawful confinement of a minor, a sex crime with a prior conviction against a minor or a prior sex crime conviction, any person with 2 or more criminal offenses against a minor victim, anyone who has been convicted of rape or sodomy in the first degree, and any sexually violent predator. All other registrants must register for 10 years. The duty to register ends only when his conviction is reversed or he receives a pardon. Persons convicted of sex crimes, criminal offenses against a victim who is a minor, and "sexually violent predators", are required to register prior to their release with the local probation and parole office in the county in which they intend to reside. The definition of "criminal offense against a victim who is a minor" has been expanded under KRS 17.500 to include kidnapping, unlawful confinement, promoting a sexual performance of a minor, promoting prostitution when the "defendant advances or profits from the prostitution of a person under the age of 18, use of a minor in a sexual performance, sexual abuse 2^nd and 3^rd degrees, and any attempts of the included offenses. Upon the person’s release, he must report to a local detention facilitity where he is fingerprinted and photographed. The fingerprints and photographs are sent to the Information Services Center with the Kentucky State Police. When the released person changes his address, he must notify his current probation and parole officer prior to changing his address. He must register with his new probation and parole officer within 5 days of the date of the change of address. If the person fails to register, or to register his change of address, he may be charged with having committed a Class D felony. The Justice Cabinet is required to verify addresses of registrants every 90 days for lifetime registrants, and every year for those required to be registered for 10 years. The role of the Sex Offender Risk Assessment Advisory Board has shifted to include the approval of providers who conduct comprehensive sex offender presentence evaluations. The comprehensive sex offender presentence evaluation is to be done pursuant to a court order at the time of conviction prior to sentencing. The evaluation is to be done by approved providers who look at the issues of the threat posed to public safety, amenability to sex offender treatment, and the nature of the required sex offender treatment. Communications made during the comprehensive sex offender presentence evaluations or treatment are privileged. Registrants are barred from residing within one thousand feet of a high school, middle school, elementary school, preschool, or licensed day care facility. Persons are prohibited from using information obtained from the Website to harass a registrant. Harassment is a Class B misdemeanor.

• Children’s advocacy center staff are to be on multidisciplinary teams investigating child abuse.
• Interviews with children are to take place in children’s advocacy centers "to the extent practicable and when in the best interest of a child."
• The Cabinet for Families and Children are to "participate in all investigations of reported or suspected sexual abuse of a child."

SENATE BILL 256. This is one of the two major bills pertaining to juvenile justice. Among the changes in this bill are the following:

• A philosophical section is added to KRS 600.010 regarding the public offender section of the juvenile code, KRS Chapter 635, saying that the chapter will be interpreted "to promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation."
• A philosophical section is added to KRS 600.010 regarding the youthful offender section of the juvenile code, KRS 640, saying that KRS 640 "shall be interpreted to promote public safety and the concept that every child be held accountable for his or her conduct through the use of restitution, reparation, and sanctions, in an effort to rehabilitate delinquent youth."
• Victims are included as interested parties in juvenile court who have a right to "prompt and fair hearings."
• An entity called a youth alternative center is created for use as a place of detention prior to and after adjudication for status, public, and youthful offenders. These are nonsecure facilities. Youth alternative centers may be created by the county applying to DJJ for the construction and operation of the center.
• Children accused of public offenses may be detained for 72 hours in intermittent holding facilities which are approved by DJJ. Jail employees may supervise juveniles as well as adults.
• KRS 610.310 is amended to allow a juvenile court to send a child for mental health examination and evaluation when the "mental or physical" health of the child before the court requires it.
• The mandatory transfer statute for juveniles using firearms during the commission of a felony is amended to allow for prosecution irrespective of whether the firearm is "functional or not."
• Children transferred to circuit court and convicted and placed in a DJJ facility may be sent to an adult prison for 1 escape.
• Some changes have been instituted with supervised placement revocation hearings. A preliminary hearing is to be held with 5 days of the child being taken into custody, exclusive of weekends and holidays, unless the child agrees to a longer period of time. If the child is returned to active custody at the preliminary hearing, a final hearing must be held with 10 days. At the hearing, DJJ has both the power to administer oaths and to issue subpoenas. DJJ is given regulatory power to govern commissioner’s warrants, the procedural aspects of the hearing, the burden of proof, the standard of proof, and the appeals process.

• A definition is given to "beyond the control of school" which is to be "found by the court to have repeatedly violated the lawful regulations for the government of the school…" The status petition must "describe the student’s behavior and all intervention strategies attempted by the school."
• A definition is given to "beyond the control of parents" which means a child "who has repeatedly failed to follow the reasonable directives of his or her parents…which behavior results in danger to the child or others…"
• A definition is given to "detention" which means "the safe and temporary custody of a juvenile who is accused of conduct subject to the jurisdiction of the court who requires a restricted environment for his or her own or the community’s protection."
• Status offenders are to be detained in a nonsecure facility, a secure juvenile detention facility, or a juvenile holding facility for not longer than 24 hours pending a detention hearing.
• Public offenders may be held for 48 hours in a secure juvenile detention facility or juvenile holding facility pending a detention hearing.
• Status offenders are not to be detained following the detention hearing unless the child is accused of violating a valid court order. Status offenders are to be detained following a detention hearing in a nonsecure setting. If the status offender is charged with violating a valid court order, the child may be detained in secure detention only after the court holds a hearing and finds that there is probable cause to believe the child has violated a valid court order. The child may be detained for 72 hours following his detention hearing, after which a written report must be filed reviewing the behavior of the child and the circumstances involved. The report must address the reasons for the child’s behavior, and whether "all dispositions other than secure detention have been exhausted or are inappropriate." Within 24 hours of receipt of the report, a violation hearing must be held.
• Children charged with a public offense are to be detained depending upon whether there is in the county a state operated secure detention facility under the statewide detention plan. If there is such a facility, DJJ conducts an assessment and places the child in one of its detention facilities. If there is no such facility, the child may be held in a secure juvenile detention facility, juvenile holding facility, or a nonsecure setting.
• Status offenders are not to be charged with escape "for being absent without leave or failing to comply with the conditions of supervised placement."
• The bill reaffirms "the inherent contempt power of the court…"

SENATE BILL 116. This bill was one of the pieces of legislation proposed by the Governor’s Council on Domestic Violence. There are numerous provisions to the bill, including:

• KRS 196.280 is amended to expand the scope of the VINE notification system. State prisons are part of the VINE system. Jailers and wardens must provide notice to the VINE system before release of the inmate from the facility or institution. The notice is also to be done when someone escapes from a penitentiary, juvenile detention facility, regional jail, or county jail.
• KRS 411 is created to create a civil action against a person who commits the acts of stalking in the first and second degree. The action is not dependent upon a conviction or even a charge of stalking. The statute of limitations for bringing the charge is 2 years within the last act of stalking.
• KRS 431.064 is amended to require the circuit clerk to place the conditions of release into the computer within 24 hours following filing of the conditions. This is entered into LINK. The effect of this provision will be to allow law enforcement officers on a 24-hour basis to verify the existence and validity of pre-trial release conditions.
• KRS 438.250 and KRS 510.320 are amended to allow victims of crime to have the written results of the blood tests required to test for HIV when someone is bitten or otherwise suffers from a puncture wound by an inmate or person charged with a crime.

• One section of the bill creates a new section of KRS 237 which requires notice to law enforcement and victims when a person under a domestic violence order attempts to or succeeds at purchasing a firearm. Another section amends KRS 508.130 to define a protective order as including EPOs, DVOs, foreign protective orders, pretrial release for persons accused of assault, sexual offenses, domestic violence cases under KRS 431.064, and any other bond, probation, parole, or diversion order "designed to protect the victim from the offender." KRS 508.140 is amended to allow a prior misdemeanor conviction for stalking to be among those offenses which would cause a subsequent offense to be prosecuted as a felony.
• The statute also creates a felony for the conviction of 3 assaults in the 4^th degree against family members as defined in KRS 403.720. This section also has the same curious language that "the jury, or judge if the trial is without a jury, may decline to assess a felony penalty in a case…and may convict the defendant of a misdemeanor."

HOUSE BILL 366. This bill represents a major shift in DUI law, particularly the change from .10 to .08. Bob Lotz has written extensively on this bill, and the reader is encouraged to seek his handouts for potential challenges to the bill. Some of the changes in this 50 page bill are as follows:

• DUI is partially defined as "[h]aving an alcohol concentration of .08 or more…"
• Both the .08 and the .02 provisions establish the validity of the test taken within 2 hours of "cessation of operation or physical control of a motor vehicle." If the test is done after 2 hours, the results are inadmissible for prosecution under .08 and .02, unless the test is done by the defense following the taking of the requested state tests.
• Declining to take a blood or urine test is a refusal only if the refusal occurs at the test site.
• License suspension is to be done by the court. The DOT’s role is to administer "the suspension period under the terms and for the duration enumerated by the court in its order…"
• The .18 sentencing provision is eliminated as a separate provision, and transformed into an aggravating circumstance.
• The presence of certain aggravating circumstances will cause a mandatory and nonprobatable 4 days in jail for a first time offender, 14 days for a 2^nd offense, 60 days for a 3^rd offense, and 240 days for a 4^th offense. Among the aggravating circumstances are speeding 30 miles an hour over the limit, going the wrong direction on a limited access highway, causing an accident resulting in death or serious physical injury, having a blood alcohol level above .18, refusing to submit to a test, and transporting a child under 12.
• License revocation is for 30-120 days for a first offense, 12-18 months for a second offense, 24-36 months for a 3^rd offense. 60 months remains the revocation period for a fourth or subsequent offense.
• A person cannot either operate or be in physical control of a motor vehile while his license is revoked or suspended due to a DUI, unless there is a functioning ignition interlock device. If the person violates this section, it is a Class B misdemeanor, unless he was also driving while intoxicated in which case it is a Class A misdemeanor, for a first offense. For a 2^nd offense, it is a Class A misdemeanor and a Class D felony if driving while intoxicated. For a 3^rd or subsequent offense, the driving on a suspended license is a Class D felony.
• The breath, blood, and urine tests are to be performed only "after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes."
• Warnings at the time of the test must be that if a person refuses, his mandatory jail time will be doubled and that he will not be allowed to obtain a hardship license, that the tests can be used against him including that if the results are .18 or better his mandatory jail time will be doubled, and that a person can have his own test if he submits first to the state’s tests.
• A person has a right to contact an attorney and must be given 10-15 minutes to do this prior to the test being given. An attorney may be present at the testing if she can be there within the time frame established by the statute.
• A refusal will result in license suspension while the case is being prosecuted. If the court determines that a refusal did occur, even if the defendant is not convicted his license is still suspended as if he had been convicted.
• Licenses are suspended by the court pretrial if the court finds after holding a hearing by a preponderance of the evidence that the person was in violation of the statute and that there was an accident resulting in death or serious physical injury.
• The court may require an ignition interlock device before granting a hardship license.
• The crime of possession of an open alcoholic beverage container in a motor vehicle on a public highway is created. Both open containers, or containers with the seal broken, must be in the glove compartment, in the trunk, or in the back hatch in order to avoid prosecution. The penalty is a fine of $35-$100.
• The bill creates an elaborate and complicated law utilizing the installation of functioning ignition interlock devices. A simplistic account of this section is that upon a second conviction, the court must impound the license plates of all vehicles owned by the defendant, unless the court orders installation of an ignition interlock device. At the conclusion of the license revocation period, the court may order that a person must have an ignition interlock device on their car. If a person violates the court order, the court may then order the device to be placed on the car for ever-increasing time period depending upon the number of violations.
• If the police record the stop, they must film the field sobriety tests in their entirety and that portion of the pursuit and stop which were recorded. If a videotape has been made by the officer, that is to be noted on the uniform citation.
• The service fee is raised from $200 to $250.

SENATE BILL 223. This bill makes significant changes to the criminal gang statute. It eliminates KRS 503.130 altogether and amends KRS 506.140 and 150, the criminal gang recruitment and activity statutes. Some of the changes are as follows:

• The enhancement section for committing certain offenses in furtherance of criminal gang activity contained in KRS 503.130 is gone.
• The only gang related crime now remaining is that of criminal gang recruitment, a Class A misdemeanor for the first offense, and a Class D felony for a second or subsequent offense.
• The definition of "criminal gang activity" in KRS 506.130 has been eliminated. In its place is a definition of a "criminal gang" under KRS 506.150. The Commonwealth will be allowed to prove the existence of a criminal gang by proving many of the same factors previously contained in KRS 506.130(3). Added to the list of admissible evidence, however, is proof of insignias, flags, means of recognition, codes, membership, age, or other qualifications, creed of belief, concentration or specialty, or a method of operation or criminal enterprise.
• KRS 506.140(1) requires that the recruitment or enticement be to join a criminal gang rather than any other kind of gang.
• Criminal gang is defined as follows: "[A]ny alliance, network, or conspiracy, in law or in fact, of five (5) or more persons with an established hierarchy that, through its membership or through the action of any member, engages in a continuing pattern of criminal activity." "Fraternal organizations, unions, corporations, associations, or similar entities" are excluded from the definition.
• A "continuing pattern of criminal activity", essential to the definition of criminal gang, means "a conviction by any member or members of a criminal gang for the commission, attempt, or solicitation of two (2) or more felony offenses, the commission of two (2) or more violent misdemeanor offenses, or a combination of at least one (1) of these felony offenses and one(1) of these violent misdemeanor offenses, on separate occasions within a two (2) year period for the purpose of furthering gang activity."
• A "violent misdemeanor", relevant to the definition of "continuing pattern of criminal activity" means 4^th degree assault, menacing, 2d degree wanton endangerment, terroristic threatening, 3^rd degree criminal abuse, 2^nd degree stalking, 2^nd degree unlawful imprisonment, and criminal coercion.

HOUSE BILL 4. This bill creates a new section of KRS Chapter 514 entitled Theft of Identity. Some of the prominent features of this new crime are as follows:

• The crime of theft of identity is a new Class D felony.
• Theft of identity is the knowing possession or use of identifying information without the other person’s consent with the purpose of representing that the defendant is the other person in order to obtain some sort of profit, including obtaining "political" benefit.
• A minor using someone else’s identification to buy alcohol or tobacco is not included in the definition.
• Venue lies where the crime is committed or where the victim resides.
• A crime of trafficking in stolen identities is also created. It is a Class C felony, and is defined as the manufacturing, selling, transferring, etc. of personal identities. Possession of 5 or more personal identities is prima facie evidence of the possession of the identities for the purpose of trafficking.
• A civil action for compensatory and punitive damages is also created.
• The Attorney General’s Office and the Commonwealth’s Attorneys have concurrent jurisdiction over the prosecution of these offenses.

SENATE BILL 256. In addition to making significant changes in juvenile law, as described above, this bill also added 3 people to the Criminal Justice Council, the Commissioners of DJJ, Corrections, and the Department of Criminal Justice Training.

SENATE BILL 316. This bill amends KRS 514.040 by allowing the maker of a check to pay a "merchant’s posted reasonable bad check handling fee" of up to $25 in order to make good on a bad check. The County Attorney’s fee has also been raised to $25 from $10 under the previous version.

SENATE BILL 65. This bill amends KRS 218A.1412 to include methamphetamine in the trafficking in a controlled substance in the first degree section. This apparently cleaned up language from the 1998 bill that was unintended.

SENATE BILL 137. This bill amends KRS 216.793 to include AOC along with the Justice Cabinet as being the entities who create the process and forms for requests for criminal records. The Justice Cabinet is allowed to contract with AOC to conduct criminal records or backgrounds checks.

SENATE BILL 167. This bill amends the expungement statute, KRS 431.076, when the charge relates to the abuse or neglect of a child. In those situations, the court must notify the Office of General Counsel of the Cabinet for Families and Children of any motion and hearing to expunge the criminal charge. Counsel for CFC is required to respond within 20 days of the notice where CFC has records which indicate that "the person charged with the criminal offense has been determined by the cabinet or by a court under KRS Chapter 620 to be a substantiated perpetrator of child abuse or neglect." If CFC does not respond to the notice within the time period, the CFC records are also expunged. If CFC prevails on the motion, the expungement does not apply to CFC’s records.

SENATE BILL 263. Victims must be notified by the Commonwealth’s Attorneys of hearing dates for shock probation or bail pending appeal and the results of the hearings.

SENATE BILL 218. This bill amends several sections of the KRS, and creates new ones, addressing the issue of child support. Included in the bill are the following provisions:

• KRS 154A.060 is amended to ensure that CFC gets to the Kentucky Lottery Corporation a list of delinquent child support obligors, and that the Lottery Corporation withhold delinquent child support monies from the prizes of lottery winners.
• KRS 205.712 to 205.800 have additions to them. CFC and the Revenue Cabinet are encouraged to work together. CFC is required to "establish a statewide program to help low-income, noncustodial parents find and keep employment…to reduce welfare payments by helping participants become financially responsible for their children…The program shall also encourage noncustodial parents to be actively involved in their children’s lives.
• CFC may enforce child support liens by disabling the car of the delinquent parent. This is done by applying for approval to the Circuit Court. Upon approval, a "vehicle boot" may be placed on the car. This may be done upon an arrearage of 6 months without payment, and after subpoenas and warrants relating to child support proceedings have been ignored, resulting in a lien filed in the county where the vehicle is kept. Before the boot is placed on the car, the owner/parent receives a notice of the intent to boot, with a target date for the booting indicated in the notice. Once the vehicle has been booted, CFC and the parent/owner then "shall attempt to reach a payment agreement…including terms for the release of the vehicle."
• It is made clear that the child support arrearage continues after emancipation of the child.
• CFC may compile a list of parents with arrearages in excess of 6 months and give this list to the newspaper for publication.
• The Attorney General’s Office receives the list of parents with 6 months’ excess child support payments and they are to place the list on an agency internet site. The OAG is also to distribute a list of "most wanted" child support "delinquent obligors."

HOUSE BILL 156. This bill amends the concealed/carry laws to eliminate the pistol packing preacher provision. However, by so doing, it also eliminates the exemption for churches generally. The end result is confusing, but may mean that a person with a concealed carry license may take weapons into church.

HOUSE BILL 331. This bill requires that all confiscated or abandoned firearms are to be sent to the KSP for disposition. Unless the KSP transfers the gun pursuant to these statutes, the guns are to be sold to properly licensed gun dealers.

HOUSE BILL 355. Parents who kill their spouse are not to be given visitation rights unless the court determines that the "visitation is in the child’s best interest."

HOUSE BILL 433. KRS 525.155, the grave violation statute, is amended to require the court to order the defendant to "restore the cemetery to its pre-damage condition."

HOUSE BILL 439. This bill creates the "Senior Status Program for Special Judges" as a pilot project. Under this provision, judges may elect to become senior status special judges by committing to serving as special judges for 120 work days per year for a term of 5 years without compensation other than increased retirement benefits. If the special judge works more than 120 days per year, he is compensated for that time.

HOUSE BILL 454. This bill adopts the Interstate Compact for Adult Offender Supervision. An Interstate Commission for Adult Offender Supervision is created with broad powers to regulate and manage the system managing the supervision of adult offenders moving between states.

HOUSE BILL 475. This bill creates several changes to laws effecting contact between prison guards and inmates. Throwing body fluids onto a juvenile worker by a public offender is a third degree assault. Sexual contact caused by the prison worker upon an inmate is sexual abuse in the 2^nd degree.

HOUSE BILL 533. This bill requires that Class C felons join Class D felons in serving their time in county jails. Sentences must be greater than 5 years, and the person must be classified by DOC as appropriate for community custody. This can only occur if beds are available in the jail and state facilities are at capacity and halfway house beds are being fully utilized. Persons convicted of sex offenses and given 2 years continue to serve their time in a DOC facility. Jails can opt out of this statute. If they choose to house Class C felons, they must offer "programs as recommended by the Jail Standards Commission." Inmates in county jails will be allowed to work at community-service-related projects under a plan written by the jailer and approved by the fiscal court.

HOUSE BILL 678. This bill amends KRS 532.358 to require payment of home incarceration fees for those who serve time under condition of home incarceration.

HOUSE BILL 685. Abuse of a corpse is presently a Class A misdemeanor. Under this bill, it becomes a Class D felony under KRS 525.120 where "the act attempted or committed involved sexual intercourse or deviate sexual intercourse with the corpse." Further, KRS 514.110 is amended to allow for conviction for receiving stolen property when the defendant has in addition to knowledge that the property has been stolen the "reason to believe that it has been stolen."

HOUSE BILL 789. This bill creates the crime of counterfeiting in intellectual property. Under this provision it is a crime to manufacture, use, display, advertise, distribute, offer for sale, sell, or possess with the intent to sell "any item or service that the person knows bears or is identified by a counterfeit mark," which is defined as "any unauthorized reproduction or copy of intellectual property; or intellectual property knowingly affixed to any item without the authority of the owner of the intellectual property." It is to be contained in KRS 365. First offense is a Class A misdemeanor; the second offense is a Class D felony.

HOUSE BILL 830. This bill amends KRS 533.262 to allow the Supreme Court and the Department of Corrections to create drug court diversion programs outside the pretrial diversion programs authorized by KRS 533.250 to 533.260.

HOUSE BILL 919. This bill cleans up numerous provisions of the statutes allowing for offenses to be prepayable only where they are violations. Violations are not prepayable where a deadly weapon or dangerous instrument is seized, where the offense is cited with a nonprepayable offense, or an arrest is made. Misdemeanors are not to be prepayable. Numerous offenses that were formerly classified as misdemeanors have been changed to violations in order to maintain their status as being prepayable.

Return to the Table of Contents