Mr. Larry Norris, Director Arkansas Department of Correction P.O. Box 8707 Pine Bluff, Arkansas 71611-8707

Dear Mr. Norris:

I am writing in response to your request for an opinion on whether A.C.A. § 12-27-107(d)(6) gives the Director of the Arkansas Department of Correction ("ADC") the authority to authorize designated ADC employees to use blue rotating or flashing emergency lights on ADC vehicles while participating in the search and capture of escapees. You note that several statutes appear to restrict the use of such lights to police agencies and authorized emergency vehicles.

RESPONSE

It is my opinion that the answer to your question is "no" current law does not authorize ADC employees to use blue rotating or flashing emergency lights on their vehicles.

The statutory provision you reference, A.C.A. § 12-27-107(d)(6), was added in 1997 and provides as follows:

(d) Subject to the rules, regulations, policies, and procedures prescribed by the Board of Correction and Community Punishment, the director shall:

* * *

(6) Designate those employees of the department who shall have the powers of peace officers in the enforcement of criminal laws to the extent they apply to employees, inmates, and persons on Department of Correction property, or while participating in the search and capture of an inmate who has escaped custody, or while assisting law enforcement officers in the search and capture of any fugitive or escapee from another jurisdiction.

The provision above does not address the use of blue rotating or flashing emergency lights in the pursuit of escapees. As you note, several other state statutes address the use of such lights. I have excerpted some of the pertinent provisions below:

27-36-208. Special restrictions on lamps.

(c) Flashing lights are prohibited except on an authorized emergency vehicle, school bus, or on any vehicle as a means of indicating a right or left turn, or the presence of a vehicular traffic hazard requiring unusual care in approaching, overtaking, or passing.

A.C.A. § 27-36-301(b). Violations.

Except as otherwise provided by the statutes of the State of Arkansas, it is unlawful for any person to install or activate or operate a blue light in or on any vehicle in this state or to possess in or on any vehicle in this state a blue light that is not sealed in the manufacturer's original package. . . .¹

A.C.A. § 27-36-303. Police vehicles.

All state, county or city and municipal police agencies shall install, maintain, and exhibit blue rotating or flashing emergency lights upon all police motor vehicles which are equipped with emergency lighting and operated within the State of Arkansas.

27-49-108. Governmental personnel subject generally.

The provisions of this subtitle applicable to the drivers of vehicles upon the highways [the "Uniform Act Regulating Traffic on Highways of Arkansas"] shall apply to the drivers of all vehicles owned or operated by the United States, this state, or any county, city, town, district, or any other political subdivision of this state, subject to such specific exceptions as are set forth in this subtitle with reference to authorized emergency vehicles.

27-49-219. Vehicles.

(d)(1) "Authorized emergency vehicle" means authorized emergency vehicles which shall include:

(A) Motor vehicles used by state, county, or city and municipal police agencies, all of which shall be equipped with:

(i) Blue; or

(ii) Blue, red, or white rotating or flashing emergency lights;

27-51-202. Restrictions not applicable to emergency vehicles.

(a) The prima facie speed limitations set forth in this subchapter shall not apply to authorized emergency vehicles when responding to emergency calls and the drivers thereof is operating the vehicle's emergency lights and is also operating an audible signal by bell, siren, or exhaust whistle if other vehicles are present.

5-77-201. Blue light or blue lens cap sales.

(a)(1) It shall be unlawful to sell a blue light or blue lens cap to any person other than a law enforcement officer or a county coroner.

(2) It shall be unlawful for a person other than a law enforcement officer or a county coroner to buy a blue light or blue lens cap. . . .

5-77-301. Blue light sales.

(a) It shall be unlawful to sell or transfer a blue light to any person other than a certified law enforcement officer. The sale or transfer shall be reported to the Department of Arkansas State Police on a form prescribed by the department. . . .

Use of blue rotating emergency lights is clearly prohibited by Arkansas law, except as otherwise authorized by statute. In my opinion the authority granted the Director under A.C.A. § 12-27-107(d)(6) is not sufficiently specific to overcome the prohibitory language of the statutes listed above. As noted above, A.C.A. § 12-27-107(d)(6) does not mention or contemplate the use of blue flashing or rotating emergency lights on ADC vehicles.

It appears from a review of the statutes above that the only vehicles that may be equipped with blue rotating or flashing lights are those of "police agencies." Such agencies may install blue rotating or flashing lights on "police motor vehicles." A.C.A. § 27-36-303. The use of blue lights on an "authorized emergency vehicle" is also tied to use by a "police agency." See A.C.A. § 27-49-219. One pertinent legal question therefore becomes whether the ADC can be characterized as a "police agency," which may install blue rotating lights on ADC vehicles used in the pursuit of escapees.

As my predecessor stated in Op. Att'y Gen. 99-232, in an opinion concerning the use of blue lights and sirens by county coroners, "[t]he term "police agencies" is not defined anywhere in the Arkansas Code and I have found no Arkansas case law that speaks to the question. . . ." I cannot characterize the ADC as a "police agency" absent some expression of legislative intent in this regard. Although A.C.A. § 12-27-107(d)(6) does invest the designated ADC employees with the powers of "peace officers" for limited purposes, I cannot infer from this authorization a legislative intention to allow ADC employees to violate the ordinary traffic regulations and rules of the road through the use of emergency lights. Cf. People v. Ellman, 135 Misc. 2d 1010, 517 N.Y.S.2d 664 (1987) (fact that officer of "Weschester County Society for the Prevention of Cruelty to Children" was defined by statute as a "peace officer" did not authorize him to disobey traffic regulations, stating that: "[u]nlike police officers, peace officers are not required to complete an approved police training program, and meet the age, educational and fitness requirements of the Civil Service Law. They are not members of and accountable to a police force or department, are not required to enforce the general criminal laws of the State, and have limited enforcement powers. . . . This lack of screening, police training and police department accountability is an important reason to maintain the distinction.")

In my opinion, therefore, legislative action would be necessary for the ADC to utilize blue rotating or flashing emergency lights in its pursuit of escapees under A.C.A. § 12-27-107(d)(6).

Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.

Sincerely,

J. LEON JOHNSON Attorney General

JLJ:ECW/cyh

¹ See also, Arkansas State Police Regulation 1998-1, § 5, stating: "It is unlawful for any person other than designated law enforcement personnel to possess in or on any vehicle in this state a blue light as defined herein which is not sealed in the manufacturer's original package with the original seal."