Beane v. Commonwealth

GANT, Justice. Movant was tried and convicted of driving a motor vehicle under the influence of alcohol and operating said vehicle on a suspended license. He was convicted by a Calloway District Court jury on both charges, fined $200 for the DUI conviction and given a sentence of 15 days in jail for driving on the revoked or suspended license. For the first conviction above, the district judge imposed a service fee in the amount of $150 under the provisions of KRS 189A.050, which reads: 189A.050. Service fee — Amount— Payment — Remedies for non-payment. —(1) All persons convicted of violation of KRS 189A.010 shall be sentenced to pay a service fee of one hundred fifty dollars ($150), which shall be in addition to all other penalties authorized by law. (2) The fee shall be imposed in all cases but shall be subject to the provisions of KRS 534.020 relating to the method of imposition and KRS 534.060 as to remedies for nonpayment of the fee. (3) The service fee shall be utilized.... The first question posed by movant requires determination of whether this “service fee” set out in KRS 189A.050 is a part of the court costs and thus subject to be avoided under the provisions of KRS 453.-190, which provides for application by a poor person, as defined in said statute, made pursuant to motion with accompanying affidavit. It is our opinion that the mandatory service fee imposed herein constitutes an additional “fine” or “penalty.” It is never described in KRS 189A.050 as a part of the court costs but pointedly made subject to the provisions of KRS Chapter 534, which chapter is entitled “Fines”; and the particular statutes made a part of KRS 189A.050 — viz., KRS 534.020 and .060-deal with the method of imposing fines and the procedures to be followed in the event of nonpayment. It is clearly the intent of the legislature to treat this service fee as a fine. Movant, of course, is not without remedy. His indigence, if such is present, is clearly a factor which may be considered under KRS 534.060 if it is later shown to be a factor in his subsequent nonpayment. In addition to the service fee, above discussed, the court taxed court costs in the amount of $47.50. No motion for avoidance of those costs or accompanying affidavit was filed herein after the judgment, as provided by KRS 453.190. The only affidavit which was filed related to KRS 31.120, dealing with appointment of counsel, and was made prior to trial. The opinion of the Court of Appeals dealing with these matters is affirmed. STEPHENS, C.J., and STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur. LEIBSON and LAMBERT, JJ., dissent. LEIBSON, J., files a dissenting opinion in which LAMBERT, J., joins.