LOUISVILLE, Ky., (WDRB) -- A Jefferson Circuit Court judge has overruled a lower court judge and will allow participants completing County Attorney Mike O'Connell's traffic school program to get their cases dismissed without having to pay court costs.

Judge Judith McDonald-Burkman on Friday granted O'Connell's motion to block District Judge Ann Bailey Smith from charging court costs to drivers who complete the program, called Drive Safe Louisville.

McDonald-Burkman ruled that court costs should not be imposed against a defendant whose case has been dismissed and the Kentucky General Assembly recently authorized county attorneys to operate these traffic safety programs "prior to the adjudication of the offense."

The county attorney's traffic program, where traffic violators can take a course without having to enter a plea or pay court fees, was "not intended to be an alternative sentence such as state traffic school or a pretrial diversion program as no finding of guilt is a required condition for participation," the judge wrote in her opinion.

Smith had refused to dismiss citations against about 100 drivers, claiming in part that the county attorney's office has no right to dismiss charges without the court's consent.

McDonald-Burkman agreed, in part, saying prosecutors may move for dismissal upon completion of the traffic program, but the court has the authority to grant or deny the request based on a "fair consideration of all relevant concerns."

Judge McDonald-Burkman then said, however, that the district court "shall" dismiss the citations without court costs "unless there exists articulable reasons for denial."

McDonald-Burkman said Smith's "conditioning dismissal of Drive Safe Louisville participants' citation on the payment of court cost is erroneous."

Smith's lawyer, Virginia Snell, has said millions of dollars could be lost in court costs for the state.

Snell did not immediately return a phone call seeking comment. Smith said she had not seen the ruling and would comment after reading it.

O'Connell said McDonald-Burkman's ruling was "thoughtful and very to the point."

He said the program has continued while McDonald-Burkman considered the case, with district court judges not requiring court costs pending the ruling. Some judges who agree with Smith postponed their cases until December, O'Connell said.

O'Connell is one of about 60 county prosecutors who have launched traffic schools to raise revenue for their offices.

Drivers charged in Jefferson County with any of 17 moving violations can pay $150 to take a two-hour, online class and get their citation dismissed.

This case centered around Timothy Higgins, who was cited for speeding and completed O'Connell's program. Smith said she would only dismiss it if he paid the $134 in court costs.

Since the program began in February, 3,635 motorists have completed the program, according to Jessie Halladay, a spokeswoman for O'Connell's office.

It has generated more than $500,000 as of Oct. 1. Of that, $164,885 went to the vendor, $84,125 to the county clerk, and $255,740 to the county attorney's office, Halladay said. 

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