Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 2nd Meeting

of the 2006 Interim


<MeetMDY1> November 21, 2006


The<MeetNo2> 2nd meeting of the Interim Joint Committee on Judiciary was held on<Day> Tuesday,<MeetMDY2> November 21, 2006, at<MeetTime> 10:00 AM, in<Room> Room 171 of the Capitol Annex. Representative Gross C Lindsay, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Robert Stivers II, Co-Chair; Representative Gross C Lindsay, Co-Chair; Senators Perry B Clark, Carroll Gibson, Ray S Jones II, Richard "Dick" Roeding, Dan Seum, and Katie Stine; Representatives Kevin D Bratcher, Jesse Crenshaw, Joseph M Fischer, Jeff Hoover, Stan Lee, Darryl T Owens, Frank Rasche, Steven Rudy, Arnold Simpson, Kathy W Stein,  Rob Wilkey, and Brent Yonts.


Guests:  Dr. Tracey Corey, Medical Examiner’s office; Sgt. Travis Tennill, Coordinator of D.A.R.E. programs; Cpt. Eric Walker; Jason Falk, APRISS, Inc.; Kelli Moore, Kentucky County Attorney Association; Brucie Moore, Kentucky County Attorney Association; Hamilton Simms, Kentucky County Attorney Association; Kevin Clay Cockwell, Kentucky County Attorney Association; Irv Maze, Kentucky County Attorney Association; Dan Able, Medical Examiner’s office; Thomas Selt, Justice & Public Safety Cabinet; Theresa Richerson, Kentucky State Police; Laurie Dudgen; General Norman Arflack, Secretary of the Justice and Public Safety Cabinet; Ken Schwendeman, Justice Cabinet; Tom Self, Justice and Public Safety Cabinet; Allen George, Woodford County Attorney, Michael Davis, APRISS, Inc., and Detective Ryan Lewis, Laurel County


LRC Staff:  Norman Lawson, CSA, Jon Grate, Ray DeBolt, Autumn Dmytrewycz, and Michelle Coyle.


Co-Chairman Senator Robert Stivers called the meeting to order, the roll was called, a quorum was present, and the minutes of the September meeting were approved.  Representative Wilkey read a resolution honoring Co-Chairman Representative Gross Lindsay upon his departure from the General Assembly and for his service as Chairman of the House Judiciary Committee.  Senator Roeding congratulated Representative Lindsay on his service to the General Assembly and his assistance to Senator Roeding over the years.  Representative Wilkey moved and Representative Simpson seconded the motion for the approval of the resolution.  The motion passed.  Senator Stivers presented Representative Lindsay a plaque for appreciation of Representative Lindsay's services from the Kentucky Association of Criminal Defense Lawyers.  Co-Chairman Lindsay then presided over the remainder of the meeting.


The first speaker was Dr. Tracy Corey, the State Medical Examiner, who spoke of the need to replace the existing medical examiner facilities in Louisville which are located on the seventh floor of a metro government center in Louisville in what used to be a hospital building.  Dr. Corey described the facilities as out-of-date, cramped, with inadequate equipment, and unable to meet the present needs of the state medical examiner's office.  Dr. Corey indicated that the cost of a new building alone would be $3 to $4 million.  Dr. Corey described the facilities in Madisonville and Frankfort as modern and adequate and the facilities in Louisville and Fort Thomas as inadequate.  Secretary of the Justice and Public Safety Cabinet General Norman Arflack indicated that at present the new facility is number 20 on the list of capital projects but that recent events such as the air crash in Lexington have necessitated reevaluation of that position to a higher position.  Senator Stivers asked how many cases were handled annually by the facility and Dr. Corey responded that 1,2000 bodies and 200 live persons were handled by the facility.  Senator Stivers commented on the need for a modernized facility to provide for proper evidence in criminal and civil proceedings.  Senator Seum asked how the current facility is funded.  Dr. Corey responded that the state has a 10 year lease on the space and the Louisville Metro Government owns the building.  Senator Seum then asked the sources of funding for the medical examiner's office and for the Jefferson County Coroner's office which is collocated on the same floor.  Dr. Corey responded that the state budget provides the medical examiner funding while the Metro government budget provides the coroner's funding.  Senator Stine commented that funding should be sought for replacement of the Fort Thomas facility as well since the chance of a major disaster is also present in Northern Kentucky.


The next speaker was Sgt. Travis Tennill, DARE Coordinator for the Kentucky State Police.  Sgt. Tennill described the Drug Awareness Resistance Education (DARE) program and its use in the schools.  Sgt.  Tennill indicated that 32,000 children receive DARE program education each year in the schools through the efforts of 100 local police officers and 12 State Troopers, but that the 32,000 figure means that only 1/3 of the school children are reached in Kentucky where the nationwide average is 80%.  Sgt. Tennill indicated that the program is funded either by local law enforcement agencies who pay their officers overtime to participate in the program, or the program is funded by the school system which pays the police department or the Kentucky State Police to present the program.  State Troopers participating in the program do so on overtime pay.  Sgt. Tennill indicated that Scott County Schools pay $25,000 per year for the program to be presented.  Sgt. Tennill proposed that a fee of $25 be added to each court cost for violations of KRS Chapter 189A relating to driving under the influence and 218A relating to controlled substances offenses which the Sergeant indicated would raise $1.1 million per year to provide the overtime payments, conduct training, and provide materials for the programs.  Representative Lindsay asked the Sergeant if he knew how much court costs are now to which the Sergeant replied that he did not know.  Several members of the committee indicated that court costs were between $125 and $175 now depending on local fees and did not include the DUI service fee.  Representative Lindsay observed that increasing the court costs would only hurt the poor since the more affluent defendants get the charges reduced or dismissed.  Senator Jones asked how many DARE programs were being presented in Eastern Kentucky.  The Sergeant responded that he did not know but would find out.  The Sergeant indicated that the program is presently being done in 49 counties.  Several members of the committee commented that the program should be done on regular duty time rather than overtime to which Sgt. Tennill responded that the intent was not to take officers from their regular enforcement duties.


The next speaker was Capt. Eric Walker who spoke of wanting to decrease the blood alcohol level as an aggravating circumstance in DUI cases from .18 to .15 blood alcohol concentration in order to receive more federal transportation funding and to reduce accidents.  Representative Wilkey asked how many lives were expected to be saved by the proposal.  The Captain had no estimate but indicated that at .15 a person was 18 percent more likely to have an accident and at .20 was 80 percent more likely to have an accident.  Representative Lindsay questioned the Captain as to how many of the criteria the state was meeting and the Captain replied 3 out of 8.  Representative Lindsay indicated that high visibility, prosecution outreach program, blood alcohol concentration BAC testing, and alcohol rehabilitation programs were all administrative and did not require legislation and then asked why we were not meeting those program criteria to which the Captain replied that we are attempting to, but have not met the criteria yet.  Representative Lindsay then indicated that the other program requiring a statutory change, administrative license revocation, had been tried on numerous occasions but had been rejected by the General Assembly.  Senator Stivers indicated that a higher BAC increases the likelihood of having an accident.  Representative Stein commented that most attorneys don't know what the aggravating circumstances in DUI cases are much less the public and changing from .18 to .15 would have little practical effect.  Senator Jones commented that he supports lowering the BAC for aggravating circumstances but that there is also a pressing need for legislation relating to establishing per se limits for driving under the influence of controlled substances.  Captain Walker indicated that the state has recently embarked on a Drug Recognition Expert Training program for both local officers and state police so that officers can spot drivers who are impaired due to drug use and that 42 officers have been trained and the Kentucky State Police have funding to train an additional 24 officers.  Representative Rasche asked whether driving under the influence of drugs was an aggravating circumstance in DUI cases to which the response was "no".  Senator Seum commented that he is in favor of increasing the penalties for drivers with higher BAC readings and that a driver with a .12 or above should not be driving in Kentucky.  Senator Gibson asked if there is a BAC level below which there is not impairment to which Ken Schwendeman of the Justice Cabinet responded that European studies have indicated that impairment of a driver begins with a blood alcohol concentration of .03.


Senator Stivers explained four bills that the Justice and Public Safety Cabinet is seeking and which he has placed in the committee folders for consideration and comment by the members.  Senator Stivers indicated that he is not planning to introduce the legislation until the session of the General Assembly begins in January and is seeking comments and changes for the legislation.  The first bill, 07 RS BR 355 relates to hidden or secret compartments in motor vehicles and provides for Class D felony penalties and confiscation of the vehicle for making a secret compartment, having a secret compartment in a vehicle, or selling a vehicle with a secret compartment which holds illegal drugs, firearms in violation of the law, or persons in violation of the law.  The second bill, 07 RS BR 356 provides that a court shall grant immunity from prosecution in order to secure testimony in a criminal cases upon approval of the Justice and Public Safety Cabinet.  The third bill, 07 RS BR 364, provides for redistribution of assets from the asset forfeiture fund at 75% for the law enforcement agency seizing the property, 20% to the Commonwealth's or County Attorney's office which prosecuted the case, and 5% for the Justice and Public Safety Cabinet for asset forfeiture education, drug and alcohol prevention programs, and other named purposes.  The program would be administered by the Justice and Public Safety Cabinet.  The fourth bill, 07 RS BR 365, clarifies that all proceeds regardless of money or property which are traceable to a drug offense are subject to forfeiture. 


Senator Jones commented that he would reintroduce legislation from the 2006 regular session of the General Assembly which provides that possession of a controlled substance in the blood or urine constitutes possession of the substance for purposes of the controlled substances statutes.  Mr. Tom Self of the Justice and Public Safety Cabinet indicated that in a Federal case several years ago that the U.S. Court of Appeals for the 6th Circuit ruled that possession of a controlled substance in the body as evidenced by a blood or urine test constituted possession in violation of federal law.


Ms. Brucie Moore, President-elect of the County Attorneys Association, introduced various members of the association to discuss the association's legislative proposals for 2007.  Irv Maze, Jefferson County Attorney spoke of the need for an appropriation of $365,000 to County Attorneys so that they could receive additional funds from the Federal Government for child support collection activities.  Mr. Maze spoke of recent cuts in staff from 300 to 60 at the Cabinet for Health and Family Services and cuts in funding for child support collection activities.  Mr. Maze indicated that none of the savings was passed on to the county attorneys for improvement of their collection activities and that for every $1 spent on collection activities by a County Attorney that $79 in child support was collected.  Mr. Maze indicated that for each $1 the state spends the federal government will grant the state $3 for child support collection activity.  Representative Yonts asked if the cabinet paid $55 per hour to special prosecutors under contract to the cabinet to which Mr. Maze responded that he did not know what those contract amounts were.


The next speaker was Woodford County Attorney Allen George, who indicated that there is a problem in prosecuting operators of motor vehicles for not having insurance when the person is not the owner of the motor vehicle.  Mr. George cited a situation where two persons were living together, both of whom owned vehicles, neither had insurance, and each one drove the other's vehicle which was legal because a Supreme Court of Kentucky decision ruled that the General Assembly had erred in creating the offense of operating a vehicle without insurance in a penalty section rather than in the main portion of the statute.  Mr. George suggested that KRS 304.39-080 be amended to include operators of motor vehicles in addition to the owners.


Mr. George then spoke of a proposal to have per se impairment penalties for operating a motor vehicle under the influence of a controlled substance.  Mr. George indicated that the bill will not include marijuana.  Representative Stein commented about exemption of prescription drugs where therapeutic levels are not exceeded.  Senator Roeding commented that cocaine, amphetamine, and methamphetamine are not illegal drugs and have legitimate therapeutic uses.  Senator Jones commented that personnel from the State Crime Laboratory have only bachelors degrees and can only testify as to the presence of drugs in the body but cannot testify as to the impairment that may have been caused by the drugs thus weakening cases.  Senator Jones indicated that the Daubert case makes their testimony subject to exclusion.  Mr. George responded that this was true and that there are very few experts in Kentucky who can testify regarding impairment and that there is no money to pay for their appearance.  Mr. George indicated that a per se level would eliminate the need to testify as to impairment because the level of impairment would have been set by the General Assembly in the same manner as for alcohol.


The next speaker was Michael Davis of APRISS, Inc. whose company is, under a federal grant, operating a program to computerize the names of purchasers of pseudoephedrine, the quantity purchased, and if the quantities exceed the amount that can be possessed, even if purchased from separate sources, the information is provided to law enforcement.  The final speaker was Detective Ryan Lewis from Laurel County who indicated that the program started in November of 2005 and in just 6 weeks he was able to seize a methamphetamine laboratory based on the information and that since that time 14 more methamphetamine laboratories have been seized.  Detective Lewis stated that his investigation time has been cut from two days to ten minutes.  Mr. Davis indicated that Oklahoma and West Virginia have passed legislation mandating computerizing of pseudoephedrine purchase data.  Senator Roeding indicated that the goal could easily be accomplished by adding ephedrine, pseudoephedrine and related substances to the existing KASPER reporting system.


The meeting was adjourned at 12:15 PM.