UNOFFICIAL COPY 22 RS BR 1955
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AN ACT relating to crisis aversion and rights retention orders. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 3
READ AS FOLLOWS: 4
Sections 1 to 16 of this Act shall be interpreted to: 5
(1) Allow the Commonwealth to act expeditiously in the interest of public safety and 6
welfare; and 7
(2) Preserve the rights afforded under the Constitutions of the United States and the 8
Commonwealth of Kentucky to the people of the Commonwealth to purchase, 9
possess, receive, and have firearms in their custody or control. 10
SECTION 2. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 11
READ AS FOLLOWS: 12
As used in Sections 1 to 16 of this Act: 13
(1) "Crisis aversion and rights retention order" means any crisis aversion and rights 14
retention order issued by a District Court pursuant to Section 6 of this Act, 15
including those issued on a temporary basis under Section 4 of this Act, and 16
including a foreign crisis aversion and rights retention order filed under Section 17
14 of this Act; 18
(2) (a) "Law enforcement officer" means a sworn member of a lawfully organized 19
police unit or police force of state, county, city, urban-county, charter 20
county, consolidated local, or unified local government who is responsible 21
for the detection of crime and the enforcement of the general criminal laws 22
of the state, as well as a federal police officer, sheriff, sworn deputy sheriff, 23
and campus police officer who is commissioned under KRS 164.950. 24
(b) "Law enforcement officer" does not include any constable, deputy 25
constable, district detective, deputy district detective, special local peace 26
officer, special law enforcement officer, or auxiliary police officer; 27 UNOFFICIAL COPY 22 RS BR 1955
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(3) "Respondent" means the person against whom a crisis aversion and rights 1
retention order is sought; and 2
(4) "Responsible party" means a person who: 3
(a) Does not cohabitate with the respondent; 4
(b) May lawfully possess a firearm; and 5
(c) Enters into a written court agreement to accept the transfer of a firearm as 6
a responsible party under Section 10 of this Act. 7
SECTION 3. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 8
READ AS FOLLOWS: 9
(1) A law enforcement officer may file a petition for a crisis aversion and rights 10
retention order. 11
(2) The petition shall be filed in the respondent's county of residence. 12
(3) The petition shall be verified and contain: 13
(a) The name and job title or rank of the petitioner; 14
(b) The name, age, address, and county of residence of the respondent, if 15
known; 16
(c) The facts and circumstances which constitute the basis for the petition; and 17
(d) Descriptions of the number, types, and locations of any firearms presently 18
believed by the petitioner to be possessed or controlled by the respondent, if 19
any. 20
(4) The petition shall be filed on forms prescribed by the Administrative Office of the 21
Courts and provided to petitioners by the circuit clerk. 22
(5) In all proceedings under Sections 4, 6, 9, and 11 of this Act, it shall be the duty of 23
the county attorney to assist the petitioner, to represent the interest of the 24
Commonwealth, and to assist the court in its inquiry by the presentation of 25
evidence. 26
(6) (a) The District Court shall have exclusive jurisdiction over crisis aversion and 27 UNOFFICIAL COPY 22 RS BR 1955
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rights retention orders. 1
(b) The Court of Justice shall provide a protocol for twenty-four (24) hour 2
access to crisis aversion and rights retention orders in each county. Any 3
protocol, whether statewide or local, shall be subject to Supreme Court 4
review and approval. 5
(7) Any judge to whom a petition is referred under this section shall have full 6
authority to review and hear a petition and subsequently grant and enforce a 7
crisis aversion and rights retention order. 8
(8) If the judge of the District Court in which there is a pending request for 9
termination, modification, or enforcement of an existing crisis aversion and 10
rights retention order is unavailable or unable to act within a reasonable time, 11
the proceedings may be conducted by any judge of the same judicial district in 12
accordance with court rules. 13
SECTION 4. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 14
READ AS FOLLOWS: 15
(1) (a) The court shall review a petition for a crisis aversion and rights retention 16
order upon its filing. 17
(b) If the court finds there is a reasonable belief that the respondent poses an 18
immediate and present danger of causing serious physical injury to self or 19
others by purchasing, possessing, receiving, or having in his or her custody 20
or control a firearm, the court shall, without prior notice to the respondent, 21
issue a temporary crisis aversion and rights retention order, set a date for 22
an evidentiary hearing within fourteen (14) days, and issue a summons to 23
the parties. 24
(c) If the court finds there is not a reasonable belief that the respondent poses 25
an immediate and present danger of causing serious physical injury to self 26
or others, the court shall dismiss the petition. 27 UNOFFICIAL COPY 22 RS BR 1955
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(d) In reviewing the petition, the court shall consider the time that has elapsed 1
since the events described in the verified petition. 2
(e) Service of the temporary crisis aversion and rights retention order, 3
summons, and hearing order under this subsection shall be personally 4
served on the respondent by a law enforcement officer. A summons may be 5
reissued if service has not been made on the respondent by the fixed court 6
date and time. 7
(2) A temporary crisis aversion and rights retention order shall: 8
(a) Prohibit the respondent from purchasing, possessing, receiving, or having 9
in his or her custody or control a firearm, or attempting to purchase or 10
receive a firearm until a hearing on issuing a crisis aversion and rights 11
retention order can be held under Section 6 of this Act; 12
(b) Order the surrender of the respondent's firearms under Section 10 of this 13
Act until a hearing to determine whether to issue a crisis aversion and 14
rights retention order can be held under Section 6 of this Act; and 15
(c) Include: 16
1. A statement that the respondent shall not purchase, possess, receive, 17
or have in his or her custody or control, or attempt to purchase or 18
receive, a firearm while the order is in effect; 19
2. A description of the requirements for surrender of firearms under 20
Section 10 of this Act; 21
3. The grounds supporting issuance of the order; 22
4. A notice of the hearing to determine whether to issue a crisis aversion 23
and rights retention order, including the address of the court and the 24
date and time when the hearing is scheduled; 25
5. A statement that, whether the respondent attends the hearing or not, 26
the court will rule on whether to convert the temporary order to a 27 UNOFFICIAL COPY 22 RS BR 1955
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crisis aversion and rights retention order for a period not to exceed 1
one (1) year, and that orders are renewable under Section 9 of this 2
Act; and 3
6. A statement that the respondent has the right to be represented by 4
counsel at all phases of the proceedings, and that an attorney shall be 5
appointed for indigent respondents upon request of the court. 6
SECTION 5. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 7
READ AS FOLLOWS: 8
(1) Prior to or at a hearing for a crisis aversion and rights retention order, the court 9
may obtain the respondent's criminal and protective order history, and any such 10
information obtained shall be provided to the petitioner and respondent in 11
accordance with the Rules of Civil Procedure. 12
(2) The respondent may ask the court for an extension of time prior to the hearing to 13
determine if a crisis aversion and rights retention order shall be issued. 14
(3) Prior to the hearing, a respondent who is not represented by counsel may request 15
the court appoint counsel to him or her. A respondent shall be entitled to 16
representation by the Department of Public Advocacy if he or she is a needy 17
person under KRS Chapter 31. 18
(4) (a) If the respondent is not present at the hearing ordered pursuant to Section 4 19
of this Act and has not been served, a previously issued temporary crisis 20
aversion and rights retention order shall remain in place, and the court 21
shall direct the issuance of a new summons for a hearing set not more than 22
fourteen (14) days in the future. If service has not been made on the 23
respondent before that hearing or a subsequent hearing, the temporary 24
crisis aversion and rights retention order shall remain in place, and the 25
court shall continue the hearing and issue a new summons with a new date 26
and time for the hearing to occur, which shall be within fourteen (14) days 27 UNOFFICIAL COPY 22 RS BR 1955
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of the previously scheduled hearing date. The court shall repeat the process 1
of continuing the hearing and reissuing a new summons until the 2
respondent is served in advance of the scheduled hearing. If service has not 3
been made on the respondent at least seventy-two (72) hours prior to the 4
scheduled hearing, the court may continue the hearing no more than 5
fourteen (14) days in the future. In issuing the summons, the court shall 6
simultaneously transmit a copy of the summons or notice of its issuance 7
and provisions to the petitioner. 8
(b) The provisions of this section permitting the continuance of a temporary 9
crisis aversion and rights retention order shall be limited to six (6) months 10
from the issuance of the temporary crisis aversion and rights retention 11
order. If the respondent has not been served within that period, the order 12
shall be rescinded without prejudice. Prior to the expiration of the 13
temporary crisis aversion and rights retention order, the court shall provide 14
notice to the petitioner stating that, if the petitioner does not file a new 15
petition, the order shall be rescinded without prejudice. 16
SECTION 6. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 17
READ AS FOLLOWS: 18
(1) When a hearing is ordered under Section 4 of this Act, the court shall consider 19
all admissible evidence presented by the petitioner and the respondent, and may 20
also consider other admissible evidence. 21
(2) Following a hearing ordered under Section 4 of this Act, if a court finds by clear 22
and convincing evidence that the respondent will pose an immediate and present 23
danger of serious physical injury to self or others if permitted to purchase, 24
possess, receive, or have in his or her custody or control a firearm, the court shall 25
issue a crisis aversion and rights retention order that: 26
(a) Prohibits the respondent from purchasing, possessing, receiving, or having 27 UNOFFICIAL COPY 22 RS BR 1955
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in his or her custody or control a firearm, or attempting to purchase or 1
receive a firearm from the date the order is issued until the order expires 2
not to exceed one (1) year from the date of issue; and 3
(b) Orders the surrender of firearms under Section 10 of this Act until the 4
order expires. 5
(3) A crisis aversion and rights retention order shall be effective for a period of time 6
fixed by the court, not to exceed one (1) year, and may be reissued upon 7
expiration pursuant to Section 9 of this Act for subsequent periods of up to one 8
(1) year each. 9
(4) A crisis aversion and rights retention order shall include: 10
(a) A statement that the respondent shall not purchase, possess, receive, or have 11
in his or her custody or control, or attempt to purchase or receive, a firearm 12
while the order is in effect; 13
(b) A description of the requirements for surrender of firearms and the option 14
of transfer to a responsible party under Section 10 of this Act; 15
(c) The grounds supporting issuance of the order; 16
(d) The date and time the order expires; 17
(e) The address of the court that issued the order; 18
(f) A statement that the respondent shall have the right to request a hearing to 19
terminate the order once every ninety (90) days during its effective period 20
for orders of one hundred twenty (120) days or longer; and 21
(g) A statement that the respondent may request that an attorney be appointed 22
under Section 5 of this Act. 23
(5) When appropriate, the court may provide the respondent with information 24
regarding locally available resources to assist persons in crisis. 25
SECTION 7. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 26
READ AS FOLLOWS: 27 UNOFFICIAL COPY 22 RS BR 1955
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(1) A crisis aversion and rights retention order shall become effective and binding on 1
the respondent when the respondent is given notice of the existence and terms of 2
the order by a law enforcement officer, the court, or upon personal service of the 3
order, whichever is earlier. A law enforcement officer or court giving notice of an 4
unserved order shall make all reasonable efforts to arrange for the order's 5
personal service upon the respondent. Once effective, a law enforcement officer 6
or the court may enforce the order's terms and act immediately upon their 7
violation. 8
(2) Costs, fees, or bond shall not be assessed against or required of a petitioner for 9
any filing, hearing, service, or order authorized by or required to implement 10
Sections 1 to 16 of this Act. 11
(3) Upon proper filing of a motion, either party may seek to terminate or renew a 12
crisis aversion and rights retention order if there has been a material change in 13
circumstances or if there is new evidence to present, as provided in Section 9 of 14
this Act. 15
(4) Testimony offered by a petitioner or a respondent in a hearing ordered pursuant 16
to Section 4 of this Act shall not be admissible in any criminal proceeding except 17
for purposes of impeachment. 18
(5) The court records of a respondent made in all proceedings pursuant to Sections 1 19
to 16 of this Act shall be confidential and shall not be open to the general public 20
for inspection, with the exception of law enforcement officers. Aggregate 21
statistical data about the number of crisis aversion and rights retention orders 22
requested, issued, renewed, denied, dissolved, or terminated shall be made 23
available by the Administrative Office of the Courts to the public upon request. 24
(6) If a petition made under Section 3 of this Act does not result in the issuance of a 25
crisis aversion and rights retention order, the court in which the petition was 26
heard shall order the expungement of the records of the case after thirty (30) days 27 UNOFFICIAL COPY 22 RS BR 1955
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have elapsed since the case was dismissed, in accordance with KRS 431.076, 1
unless the respondent requests in writing to preserve the record. 2
SECTION 8. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) Within twenty-four (24) hours of issuing, recognizing, renewing, dissolving, or 5
terminating a summons or a crisis aversion and rights retention order under 6
Sections 1 to 16 of this Act, the court shall forward, by the most expedient means 7
reasonably available, a copy of each to the appropriate agency designated for 8
entry of orders of protection into the Law Information Network of Kentucky, to 9
the agency assigned service, and to the Department of Kentucky State Police. 10
(2) Within twenty-four (24) hours of achieving service, a law enforcement officer 11
who serves an order shall cause a copy of each protection order issued under 12
Section 4 or 6 of this Act to be electronically forwarded to the appropriate agency 13
designated for entry of orders of protection into the Law Information Network of 14
Kentucky and to the Department of Kentucky State Police. 15
(3) (a) All forms, affidavits, and protection orders issued or filed pursuant to 16
Sections 1 to 16 of this Act which require entry into the Law Information 17
Network of Kentucky shall be entered on forms prescribed by the 18
Administrative Office of the Courts after consultation with the Justice and 19
Public Safety Cabinet. 20
(b) The information required to be submitted to the Law Information Network 21
of Kentucky pursuant to this section shall include identifying information 22
about the respondent and the date the order was issued, renewed, dissolved, 23
or terminated. In the case of a crisis aversion and rights retention order, the 24
court shall include the date the order is set to expire. The court shall also 25
indicate whether the respondent to a crisis aversion and rights retention 26
order was present in court to be advised of the contents of the order or if the 27 UNOFFICIAL COPY 22 RS BR 1955
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respondent failed to appear. The respondent's presence in court shall 1
constitute proof of service of notice of the terms of the order. 2
(4) The Department of Kentucky State Police shall immediately make information 3
about a crisis aversion and rights retention order issued, recognized, renewed, or 4
terminated pursuant to Sections 1 to 16 of this Act available to the National 5
Instant Criminal Background Check System for the purposes of firearm 6
purchaser background checks. 7
SECTION 9. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 8
READ AS FOLLOWS: 9
(1) (a) A respondent to a crisis aversion and rights retention order issued under 10
Section 6 of this Act and effective for one hundred twenty (120) days or 11
longer may submit to the issuing court a written request to terminate the 12
order once every ninety (90) days during the effective period of the order. 13
The respondent may request a hearing on the request for termination. 14
(b) Notice of the request shall be served on the petitioner in accordance with 15
the laws of this Commonwealth regarding service of process. 16
(c) If the court orders a termination hearing, the hearing shall: 17
1. Occur within fourteen (14) days from the date of service of the request 18
upon the petitioner; and 19
2. Be heard by the issuing court sitting without a jury. 20
(d) The respondent seeking termination of the order shall have the burden of 21
proving by clear and convincing evidence that the respondent will not pose 22
an immediate and present danger of causing serious physical injury to self 23
or others if permitted to purchase, possess, receive, or have in his or her 24
custody or control a firearm. 25
(e) The court may consider proof of crisis intervention, treatment, or services 26
received by the respondent while subject to a crisis aversion and rights 27 UNOFFICIAL COPY 22 RS BR 1955
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retention order as evidence in favor of termination of the order. 1
(f) If the court finds after the hearing that the respondent has met his or her 2
burden, the court shall terminate the order. 3
(2) For crisis aversion and rights retention orders effective for more than ninety (90) 4
days, the issuing court shall notify the petitioner that the order is set to expire at 5
least thirty (30) days before expiration. The notice shall advise the petitioner of 6
the procedures for seeking a renewal of the order pursuant to this section. 7
(3) (a) A petitioner may request a renewal of a crisis aversion and rights retention 8
order at any time during the ninety (90) day period preceding the expiration 9
of the order. 10
(b) Renewal proceedings for a crisis aversion and rights retention order shall 11
be heard by a judge of the District Court which issued the existing order, 12
and the existing crisis aversion and rights retention order shall remain in 13
effect until the court holds the hearing. 14
(c) The court may, after notice and a hearing, renew a crisis aversion and 15
rights retention order issued under Section 6 of this Act for up to one (1) 16
year after the prior date of expiration if the court finds by clear and 17
convincing evidence that the respondent will continue to pose an immediate 18
and present danger of causing serious physical injury to self or others if 19
permitted to purchase, possess, receive, or have in his or her custody or 20
control a firearm. 21
(d) In determining whether to renew a crisis aversion and rights retention order 22
issued under Section 6 of this Act, the court shall consider all relevant 23
evidence presented by the petitioner and the respondent, and may also 24
consider other relevant evidence. 25
(e) A crisis aversion and rights order renewed pursuant to this section shall be 26
subject to termination by further order of the court at a hearing held 27 UNOFFICIAL COPY 22 RS BR 1955
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pursuant to subsection (1) of this section or further renewed by order of the 1
court pursuant to this subsection. 2
SECTION 10. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) Upon issuance of a crisis aversion and rights retention order, the court shall: 5
(a) Order the respondent to surrender to a local law enforcement agency all 6
firearms in the respondent's custody or control, or which the respondent 7
possesses; and 8
(b) Direct a law enforcement agency having jurisdiction over the respondent to 9
conduct a reasonable search of available records in order to: 10
1. Identify adults living in the same household as the respondent; and 11
2. Provide notice to those adults that the respondent is prohibited from 12
having firearms in his or her custody or control while the order is in 13
effect. 14
(2) (a) If an order becomes binding and effective upon a respondent after personal 15
service of the order by a law enforcement officer, the respondent shall 16
surrender all firearms to the control of the law enforcement officer serving 17
the order; or 18
(b) If an order becomes binding and effective upon a respondent after the 19
respondent is given notice of the existence and terms of the order by a law 20
enforcement officer or the court, the law enforcement officer or the court 21
shall inform the respondent of the time, place, and manner of the surrender 22
to local law enforcement. 23
(3) At the time of surrender, a law enforcement officer taking possession of a firearm 24
pursuant to a crisis aversion and rights retention order shall issue a receipt 25
identifying all firearms that have been surrendered and provide a copy of the 26
receipt to the respondent. The officer serving the order shall file the original 27 UNOFFICIAL COPY 22 RS BR 1955
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receipt with the court that issued the crisis aversion and rights retention order, 1
and shall ensure that the law enforcement agency retains a copy of the receipt. 2
(4) After firearms have been surrendered to a local law enforcement agency 3
pursuant to a crisis aversion and rights retention order, the respondent or the 4
rightful owner of the firearm, as applicable, may petition the issuing court to 5
order the law enforcement agency to transfer the firearm to: 6
(a) A responsible party; 7
(b) An individual who possesses a valid federal firearms license issued under 8
18 U.S.C. sec. 923 for storage or an eventual lawful sale whose terms are 9
mutually agreed upon between the licensee and the respondent or rightful 10
owner, as applicable; or 11
(c) The Department of Kentucky State Police under KRS 95.435, to be sold at 12
public auction under KRS 16.220, with proceeds returned to the respondent 13
or the rightful owner of the firearm, as applicable. 14
SECTION 11. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 15
READ AS FOLLOWS: 16
(1) A court that has probable cause to believe a respondent to a crisis aversion and 17
rights retention order possesses, or has in his or her custody or control firearms 18
that he or she has failed to surrender pursuant to Sections 1 to 16 of this Act, or 19
has received or purchased firearms while subject to the order, shall issue a search 20
warrant describing the firearms and authorizing a search of any location where 21
the firearms are reasonably believed to be and order the seizure of any firearms 22
discovered pursuant to such search. 23
(2) Firearms seized under this section shall be processed in the same manner as 24
firearms surrendered under Section 10 of this Act. 25
SECTION 12. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 26
READ AS FOLLOWS: 27 UNOFFICIAL COPY 22 RS BR 1955
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(1) (a) A law enforcement agency storing a firearm surrendered under Section 10 1
of this Act or seized under Section 11 of this Act shall use reasonable care 2
to ensure that the firearm is not lost or damaged, and the law enforcement 3
agency is prohibited from permanently marking the firearm for 4
identification or other purposes. 5
(b) A law enforcement agency shall be liable for any damage to or loss of the 6
firearm that results from the law enforcement agency's negligence in the 7
storage or handling of the firearm. 8
(2) When a crisis aversion and risk retention order is terminated or expires, a law 9
enforcement agency holding any firearm that has been surrendered pursuant to 10
Section 10 of this Act or seized under Section 11 of this Act shall notify the 11
respondent that he or she may request the return of the firearm. A law 12
enforcement agency shall return any surrendered or seized firearm requested by 13
a respondent only after confirming, through a background check, that the 14
respondent is currently eligible to possess firearms. 15
(3) (a) Any firearm which was surrendered by a respondent pursuant to Section 10 16
of this Act and that remains unclaimed or has not been transferred by the 17
lawful owner one (1) year after any crisis aversion and rights retention 18
order has expired or terminated shall be treated as unclaimed property 19
under KRS Chapter 393A. 20
(b) Any firearm which was seized under Section 11 of this Act and that remains 21
unclaimed or has not been transferred by the lawful owner six (6) years 22
after any crisis aversion and rights retention order has expired or 23
terminated shall be treated as unclaimed property under KRS Chapter 24
393A. 25
SECTION 13. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 26
READ AS FOLLOWS: 27 UNOFFICIAL COPY 22 RS BR 1955
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(1) A person who knowingly files a petition for any crisis aversion and rights 1
retention order, knowing the information in the petition to be materially false or 2
with an intent to harass the respondent, is guilty of Class A misdemeanor. 3
(2) A person who knowingly purchases, possesses, receives, or has in his or her 4
custody or control a firearm with knowledge that he or she is prohibited from 5
doing so by any crisis aversion and rights retention order: 6
(a) Is guilty of a Class A misdemeanor; and 7
(b) Shall be prohibited from purchasing, possessing, receiving, having in his or 8
her custody or control, or attempting to purchase or receive, a firearm for a 9
period of five (5) years from the date of conviction. 10
(3) If a respondent subject to a crisis aversion and rights retention order has 11
transferred a firearm to a responsible party, and the responsible party 12
intentionally or wantonly allows the respondent access to any firearm, the 13
responsible party is guilty of a Class A misdemeanor. 14
SECTION 14. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 15
READ AS FOLLOWS: 16
The Commonwealth of Kentucky shall recognize and enforce orders from other states 17
that are substantially similar to temporary crisis aversion and rights retention orders or 18
crisis aversion and rights retention orders, provided that: 19
(1) The order is filed with a court of competent jurisdiction within the 20
Commonwealth; 21
(2) The order is valid in the originating state at the time it is filed; and 22
(3) In the case of an order lasting more than fourteen (14) days, the respondent was 23
afforded opportunity for a hearing in the originating state prior to the order 24
being issued. 25
SECTION 15. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 26
READ AS FOLLOWS: 27 UNOFFICIAL COPY 22 RS BR 1955
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Nothing in Sections 1 to 16 of this Act shall be construed to authorize a warrantless 1
search or seizure by a law enforcement officer if a warrant would otherwise be 2
required. 3
SECTION 16. A NEW SECTION OF KRS CHAPTER 237 IS CREATED TO 4
READ AS FOLLOWS: 5
Sections 1 to 16 of this Act shall not be construed to impose criminal or civil liability 6
on any person who chooses not to seek a crisis aversion and rights retention order. 7
Section 17. KRS 31.110 is amended to read as follows: 8
(1) A needy person who is being detained by a law enforcement officer, on suspicion of 9
having committed, or who is under formal charge of having committed, or is being 10
detained under a conviction of, a serious crime, or who is accused of having 11
committed a public or status offense or who has been committed to the Department 12
of Juvenile Justice or Cabinet for Health and Family Services for having committed 13
a public or status offense as those are defined by KRS 610.010(1), 610.010(2)(a), 14
(b), (c), or 630.020(2), or who is a respondent under Sections 1 to 16 of this Act, is 15
entitled: 16
(a) To be represented by an attorney to the same extent as a person having his or 17
her own counsel is so entitled; and 18
(b) Except as provided in subsection (2)(c) of this section, to be provided with the 19
necessary services and facilities of representation, including investigation and 20
other preparation. The courts in which the defendant is tried shall waive all 21
costs. 22
(2) A needy person who is entitled to be represented by an attorney under subsection 23
(1) of this section is entitled: 24
(a) To be counseled and defended at all stages of the matter beginning with the 25
earliest time when a person providing his or her own counsel would be 26
entitled to be represented by an attorney and including revocation of probation 27 UNOFFICIAL COPY 22 RS BR 1955
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or parole; 1
(b) To be represented in any appeal; and 2
(c) To be represented in any other post-conviction, or, if a minor under the age of 3
eighteen (18), post-disposition proceeding, including any appeal from a post-4
conviction or post-disposition action. However, if the department and the 5
court of competent jurisdiction determines that it is not a proceeding that a 6
reasonable person with adequate means would be willing to bring at his or her 7
own expense, there shall be no further right to be represented by counsel 8
under the provisions of this chapter. In cases involving a minor under the age 9
of eighteen (18), prior to making a determination on whether or not a post-10
disposition action is a proceeding that a reasonable person with adequate 11
means would be willing to bring at his or her own expense, an attorney with 12
the department shall be granted access to the court file of the minor: 13
1. Without the requirement of a formal court order in which the attorney 14
has provided a release signed by the minor or the minor's legal guardian 15
authorizing the use of the records; and 16
2. Notwithstanding any other statute prohibiting the disclosure of a 17
juvenile court file. 18
(3) A needy person's right to a benefit under subsection (1) or (2) of this section is not 19
affected by his or her having provided a similar benefit at his or her own expense, or 20
by he or she having waived it, at an earlier stage. 21
(4) A person, whether a needy person or not, who is a minor under the age of eighteen 22
(18) and who is in the custody of the Department of Juvenile Justice and is residing 23
in a residential treatment center or detention center is entitled to be represented on a 24
legal claim related to his or her confinement involving violations of federal or state 25
statutory rights or constitutional rights. Prior to representation, an attorney with the 26
department shall be granted access to the court file of the minor and residential 27 UNOFFICIAL COPY 22 RS BR 1955
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treatment center or detention center records pertaining to the juvenile: 1
(a) Without entering an appearance as an attorney of record; and 2
(b) Notwithstanding any other statute prohibiting the disclosure of a juvenile's 3
record, including KRS 15A.0651, 610.320, 610.340, or 610.345. 4
(5) A person, whether a needy person or not, who is subject to a proceeding under KRS 5
Chapter 202C and is unrepresented at any time shall be entitled to the same rights of 6
representation as a needy person under subsection (1) of this section. 7
Section 18. KRS 431.015 is amended to read as follows: 8
(1) (a) KRS 431.005 to the contrary notwithstanding, and except as provided in 9
paragraphs (b), (c), and (d) of this subsection, a peace officer shall issue a 10
citation instead of making an arrest for a misdemeanor committed in his or her 11
presence, if there are reasonable grounds to believe that the person being cited 12
will appear to answer the charge. The citation shall provide that the defendant 13
shall appear within a designated time. 14
(b) A peace officer may make an arrest instead of issuing a citation for a 15
misdemeanor committed in his or her presence if the misdemeanor is: 16
1. A violation of KRS Chapter 508, 510, or 527, or KRS 189A.010, 17
511.050, 511.085, 514.110, or 523.110; 18
2. An offense in which the defendant poses a risk of danger to himself, 19
herself, or another person; or 20
3. An offense in which the defendant refuses to follow the peace officer's 21
reasonable instructions. 22
(c) A peace officer shall make an arrest for violations of protective orders issued 23
pursuant to KRS 403.715 to 403.785,[ or] an order of protection as defined in 24
KRS 456.010, or a crisis aversion and rights retention order issued under 25
Section 4 or 6 of this Act. 26
(d) A peace officer may make an arrest or may issue a citation for a violation of 27 UNOFFICIAL COPY 22 RS BR 1955
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KRS 508.030 which occurs in a hospital pursuant to KRS 431.005(1)(f). 1
(2) A peace officer may issue a citation instead of making an arrest for a violation 2
committed in his or her presence but may not make a physical arrest unless there are 3
reasonable grounds to believe that the defendant, if a citation is issued, will not 4
appear at the designated time or unless the offense charged is a violation of KRS 5
189.223, 189.290, 189.393, 189.520, 189.580, 235.240, 281.600, 511.080, or 6
525.070 committed in his or her presence or a violation of KRS 189A.010, not 7
committed in his or her presence, for which an arrest without a warrant is permitted 8
under KRS 431.005(1)(e). 9
(3) A peace officer may issue a citation when he or she has probable cause to believe 10
that the person being issued the citation has committed a misdemeanor outside of 11
his or her presence, if there are reasonable grounds to believe that the person being 12
cited will appear to answer the charge. The citation shall provide that the defendant 13
shall appear within a designated time. 14
(4) If the defendant fails to appear in response to the citation, or if there are reasonable 15
grounds to believe that he or she will not appear, a complaint may be made before a 16
judge and a warrant shall issue. 17
(5) When a physical arrest is made and a citation is issued in relation to the same 18
offense the officer shall mark on the citation, in the place specified for court 19
appearance date, the word "ARRESTED" in lieu of the date of court appearance. 20
Section 19. KRS 431.076 is amended to read as follows: 21
(1) (a) On or after July 15, 2020, if a court enters: 22
1. An order of acquittal of criminal charges against a person;[, or enters] 23
2. An order dismissing with prejudice all criminal charges in a case against 24
a person and not in exchange for a guilty plea to another charge; or[,] 25
3. An order dismissing a petition for a crisis aversion and rights 26
retention order under Section 4 of this Act; 27 UNOFFICIAL COPY 22 RS BR 1955
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the court shall order the record expunged upon the expiration of thirty (30) 1
days, unless the person objects to the expungement. As used in this paragraph, 2
"criminal charges" shall not include a traffic infraction not otherwise 3
classified as a misdemeanor. The order expunging the records shall not require 4
any action by the person. 5
(b) A person who has been charged with a criminal offense and who has been 6
acquitted of the charges, or against whom charges have been dismissed and 7
not in exchange for a guilty plea to another charge, and whose records have 8
not been expunged pursuant to paragraph (a) of this subsection, may petition 9
the court in which the disposition of the charges was made to expunge all 10
charges. 11
(c) A person against whom felony charges originally filed in the District Court 12
have not resulted in an indictment by the grand jury or in an information filed 13
by the Commonwealth's attorney may petition the District Court in which the 14
charges were filed to dismiss and expunge all charges for which an indictment 15
or information has not issued. 16
(2) An expungement petition brought under subsection (1)(b) or (c) of this section shall 17
be filed no sooner than: 18
(a) Sixty (60) days following the order of acquittal or dismissal with prejudice by 19
the court; 20
(b) Six (6) months following the date of the District Court decision to hold the 21
matter to the grand jury; or 22
(c) For charges dismissed without prejudice: 23
1. For felony charges, three (3) years following the date of the order of 24
dismissal without prejudice; or 25
2. For misdemeanor charges, one (1) year following the date of the order of 26
dismissal without prejudice. 27 UNOFFICIAL COPY 22 RS BR 1955
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(3) (a) If the court finds that the petition under subsection (1)(b) of this section is 1
properly brought, the court shall grant the petition and order the expunging of 2
the records. 3
(b) 1. If the expungement petition is brought under subsection (1)(c) of this 4
section, the petition shall be served upon the offices of the county and 5
Commonwealth's attorneys that prosecuted the case. 6
2. Following the filing of the petition, the court shall notify the county and 7
Commonwealth's attorneys of an opportunity for a response to the 8
petition. The response shall be filed within ninety (90) days after the 9
filing of the petition. 10
3. If a response is not filed, ninety (90) days after the filing of the petition 11
the court shall dismiss the charges without prejudice and order the 12
expunging of the records. 13
4. If a response is filed, ninety (90) days after the date the response is filed, 14
if an indictment has not issued, the court shall dismiss without prejudice 15
the charges for which an indictment has not issued and order the 16
expunging of the records. 17
(4) An order of expungement pursuant to this section shall expunge all criminal records 18
in the custody of the court and any criminal records in the custody of any other 19
agency or official, including law enforcement records, but no order of expungement 20
pursuant to this section shall expunge records in the custody of the Department for 21
Community Based Services. The court shall order the expunging on a form 22
provided by the Administrative Office of the Courts. Every agency, with records 23
relating to the arrest, charge, or other matters arising out of the arrest or charge, that 24
is ordered to expunge records, shall certify to the court within sixty (60) days of the 25
entry of the expungement order, that the required expunging action has been 26
completed. All orders enforcing the expungement procedure shall also be expunged. 27 UNOFFICIAL COPY 22 RS BR 1955
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(5) (a) If an expungement is ordered under subsection (1)(a) or (b) of this section, an 1
appellate court which issued an opinion in the case shall order the appellate 2
case file to be sealed and also direct that the version of the appellate opinion 3
published on the court's Web site be modified to avoid use of the defendant's 4
name in the case title and body of the opinion. 5
(b) If an expungement is ordered under subsection (1)(c) of this section, an 6
appellate court which issued an opinion in the case may, upon motion of the 7
petitioner in the case, order the appellate case file to be sealed and also direct 8
that the version of the appellate opinion published on the court's Web site be 9
modified to avoid use of the petitioner's name in the case title and body of the 10
opinion. 11
(6) After the expungement, the proceedings in the matter shall be deemed never to have 12
occurred. The court and other agencies shall delete or remove the records from their 13
computer systems so that any official state-performed background check will 14
indicate that the records do not exist. The court and other agencies shall reply to any 15
inquiry that no record exists on the matter. The person whose record is expunged 16
shall not have to disclose the fact of the record or any matter relating thereto on an 17
application for employment, credit, or other type of application. 18
(7) Inspection of the records included in the order may thereafter be permitted by the 19
court only upon petition by the person who is the subject of the records and only to 20
those persons named in the petition. 21
(8) Except as provided in subsection (1)(a) of this section, this section shall be 22
retroactive. 23