Summary of KENTUCKY DUI LAW
Andrew T. Coiner
Founding Member, National College of DUI Defense
This summary of Kentucky law pertains to driving under the influence of alcohol and/or other substances, commonly referred to as DUI. This summary is apparently so good it was copied by a Louisville lawyer named Benham Sims who then replaced my name with his and distributed it during a Kentucky Association of Criminal Defense Lawyers seminar. Many other ramifications, such as increased insurance costs (or cancellation of coverage), inability to rent cars, job barriers, and possible loss of professional credentials or certifications, will follow a DUI guilty plea or conviction. These factors should be considered when determining whether to fight a wrongful accusation of DUI. Do not take the easy way out by entering a guilty plea to a DUI charge before considering the ramifications and consulting a qualified, experienced DUI defense attorney.
Motorists in Kentucky can be charged with six DUI violations: (1) operating or in physical control of a motor vehicle under the influence of alcohol; (2) operating or in physical control of a motor vehicle having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle; (3) operating or in physical control of a motor vehicle while under the influence of any other substance or combination of substances which impairs driving ability; (4) operating or in physical control of a motor vehicle while under the combined influence of alcohol and any substance which impairs driving ability; and (5) while the presence of a specifically prohibited controlled substance is detected in the blood, as measured by a scientifically reliable test or tests taken within two (2) hours of cessation of operation or physical control of a motor vehicle; and (6) if under 21 years of age and operating or in physical control of a motor vehicle with a prohibited alcohol concentration of 0.02. The Kentucky DUI laws cover operating or physical control of a motor vehicle “anywhere” in the state, which includes private property.
If you've been arrested for DUI, read this entire summary. It will answer many questions about DUI even before consulting with an attorney.
“UNDER THE INFLUENCE OF ALCOHOL”
Before political action groups took over the legislative process, to get a DUI conviction in Kentucky the prosecutor only had to prove a motorist was “under the influence of alcohol.” The government prosecutes this type of case even if no chemical test result exists from a blood, breath or urine test. Most cases in which a suspected impaired driver refuses a chemical test of his or her blood, breath or urine are prosecuted as “under the influence” cases. Cases in which the driver does not test above the legal limit can be prosecuted as “under the influence” cases. Whenever a driver has taken a blood, breath, or urine test, the Commonwealth may attempt to introduce the result into evidence. To “help” the prosecutor prove “under the influence” driving, the legislature permits a prosecutor to benefit from certain presumptions about any alcohol concentration if proven in court. Motorists who have an alcohol concentration of less than 0.05 are presumed NOT under the influence of alcohol. There is no presumption if a person's alcohol concentration is 0.05 and above but less than 0.08. However, the Commonwealth can attempt to refute the “presumption” by other proof. A collision, atrocious driving, disregard for the safety of others, and slurred speech are examples of the evidence that can be used against a drinking driver. What is the definition of “under the influence?” In Kentucky, the Judge, prosecutor and defense attorney cannot define “under the influence.” Kentucky appeals courts have ruled jurors do not need the definition. Jurors, Kentucky appeals courts say, must figure it out for themselves.
“PER SE” DUI
In the mid-1980s, political action groups determined “under the influence” wasn't good enough because juries were still acquitting some drinking drivers. These groups influenced the legislatures in every state to pass what they thought were more stringent DUI laws. Because there are few active groups advocating sanity in criminal laws, the political action groups were, and continue to be, successful. Illegal alcohol content laws were passed. This law is also known as the “per se” DUI offense. It would be more accurate to call this driving with an unlawful blood, breath or urine alcohol level. To prove this type of DUI, the prosecution need not prove any unsafe driving or “under the influence” condition. The offense is committed by having an unlawful alcohol concentration level and “operating” a motor vehicle. In Kentucky, the prohibited “alcohol concentration” for persons 21-years-old or older is 0.08 grams of alcohol per 210 liters of breath or 100 milliliters of blood. For persons under age 21 at the time of the arrest, the “per se” limit is only 0.02 grams.
When a DUI case involves a blood, breath or urine test result, there are two separate ways the prosecution may seek to prove a DUI case: (1) by proving “under the influence,” utilizing the test result, if any, (and the presumptions discussed above) or proceeding on other evidence in the case or (2) by proving the person was operating or in physical control of a motor vehicle with an unlawful alcohol concentration. This method of proving DUI-alcohol requires a blood, breath or urine test. In refusal cases, the prosecution usually can only pursue and attempt to prove an “under the influence” DUI-alcohol case since no chemical test result is available to prove the alcohol concentration. Although persons under arrest for DUI may refuse to take a chemical test of their blood, breath or urine for many reasons other than fear of failure, Kentucky courts have ruled the act of refusal is admissible in court as evidence of guilt.
DUI-“Other substance or combination of substances”
You can be prosecuted for a DUI involving controlled substances even where a physician prescribes the drugs. These cases often involve substances such as marijuana, cocaine, hydrocodone and methamphetamine in the driver's blood system.
Legal Limits of Alcohol
An alcohol concentration of 0.02 or higher is the level for per se (presumed) intoxication for persons under the age of 21 at the time of arrest. This means if you are under 21 years of age and submitted to law enforcement's chemical test and the result was 0.02 or higher, you may be accused of driving with an unlawful alcohol concentration, plus be accused of DUI “under the influence” based on other evidence (including manifestations of impairment, driving conduct, or other evidence).
An alcohol concentration reading of 0.04 or higher is the level for per se (presumed) intoxication for persons accused stopped while operating a commercial vehicle. This means if you submitted to law enforcement's chemical test and the result was 0.04 or higher, you may be accused of driving a commercial vehicle while having an unlawful blood alcohol level. If a driver is stopped in a commercial vehicle and the prosecution's test reveals ANY alcohol, a 24-hour out-of-service order will be issued.
An alcohol concentration of 0.08 or more is the level for per se (presumed) intoxication for persons who are age 21 and older and accused of violating Kentucky DUI laws. This means if you submit to testing and yield a result over .079, you will be accused of driving with an unlawful blood alcohol concentration. No evidence of bad driving or visible signs or manifestations of impairment are needed to obtain a conviction for this type of DUI.
Other than the two methods of proving DUI-alcohol for the various “types” of vehicles or drivers, Kentucky law also provides for prosecution of other types of “impaired” driving. A person can be prosecuted for driving under the influence of (1) any other substance or combination of substances which impairs one's driving ability (prescribed or non-prescribed) and (2) the combination of alcohol and any other substance which impairs one's driving ability. Depending on the type of evidence available (i.e., from a blood or urine test), a prosecutor can proceed on any or all of these “types” of DUI.
“Repeat offender” status for DUI cases is determined in Kentucky based upon a ten-year “lookback” period. This status is used for increased mandatory minimum punishment. This “lookback” period has nothing to do with how long a DUI remains on your record. Whenever the ten-year “lookback” period is discussed, the method of counting is from THE DATE OF ARREST for the previous DUI offense (not the disposition or plea date) to the DATE OF ARREST in the current case.
The counting of “first”, “second”, offense etc., relates to the number of offenses within the ten-year “lookback” period. This determines the minimum punishment that must be assessed if you are convicted by a jury or plead guilty. If you are charged with DUI in Kentucky after April 9, 2016 the look-back period has been extended to 10 years. If you are charged with being a repeat offender based on the ten-year lookback period, it is essential to consult with an attorney. Chances are you signed a DUI guilty plea form for a prior offense containing language indicating the lookback period is five years. Your attorney can take steps to prevent the prior DUI from being used against you.
DUI First Offense
Fine: $200.00-$500.00 (plus statutory service fee and other miscellaneous costs.)
Jail: 48 hours to 30 days. Under Kentucky law for a first offender, either a fine or jail must be assessed, the penalty not assessed can be suspended, probated or subject to conditional discharge or early release. A judge can impose a fine of between $200.00 and $500.00 plus 48 hours in jail and probate or conditionally discharge the jail term.
Community Service: In lieu of a fine or imprisonment or both, an offender can apply to the judge for permission to enter a community labor program for not less than 48 hours nor over 30 days. This option is not available in most counties.
License Suspension: For Kentucky residents 21 and over when arrested, a District Judge can impose a license suspension between 30 and 120 days. A hardship license is available if the suspension is over 30 days. Drivers under 21 will be suspended for 30 days to six months and can have a hardship license. After the license suspension and completion of alcohol treatment, drivers may be reinstated. Any non-resident driver's home state licensing agency (DMV, DPS, etc.) will receive notice from the Kentucky Department of Transportation if any license suspension or case disposition (conviction or plea) occurs in Kentucky and the non-resident's license is involved. In almost all cases, a guilty plea or guilty verdict in a DUI in Kentucky will cause a suspension to occur in the non-resident's home state. A “not guilty” verdict or other non-DUI disposition will prevent such consequences. These suspensions can be lengthier and reinstatement more onerous. This puts a premium on winning the case, or obtaining a non-DUI disposition.
Alcohol and Drug Assessment and Treatment: Ninety days.
DUI Second Offense
Fine: $350-$500 (plus statutory service fee and other miscellaneous costs.)
Jail: seven days to six months. A fine and jail time are imposed for all second offenses within five years. At least 48 hours of the sentence must be served consecutively.
Community Service: Not less than ten (10) days or over six (6) months of Community Service is optional in all cases, but rarely granted.
Alcohol and Drug Assessment and Treatment: One year.
License Suspension: 12 months to 18 months. The District Judge may grant a hardship license after 12 months.
DUI Third Offense
Fine: $500-$1,000 (plus statutory service fee and other miscellaneous costs.)
Jail: Thirty (30) days to twelve (12) months. At least 48 hours of the sentence must be served consecutively.
Community Service: Not less than ten (10) days or over twelve (12) months of Community Service is optional in all cases and rarely granted.
License Revocation: 24 months to 36 months. The District Judge may grant a hardship license after 24 months.
Alcohol and Drug Assessment and Treatment: One year.
DUI Fourth Offense
Fine: $1,000-$10,000 (plus statutory service fee and other miscellaneous costs.)
Jail: Class D felony. One to five years. At least 120 days of the sentence must be served.
License Revocation: 60 months. No hardship license.
Alcohol and Drug Assessment and Treatment: One year.
DUI Under 21 years of age if alcohol concentration is greater than 0.02 and less than 0.08
Fine: $100-$500 plus court costs.
License Revocation: Thirty (30) days to six (6) months.
Community Service: Up to twenty (20) hours in lieu of a fine.
Alcohol and Drug Assessment and Treatment: Ninety days.
PRACTICAL TIP: No other penalties established under the Kentucky DUI statutes shall be imposed. This type of DUI cannot be used for enhancement. If the alcohol concentration in the under-21 driver is above 0.08, the driver is subject to the same penalties as an adult.
Kentucky established a list of six aggravating factors, which, if present, double the mandatory minimum jail sentence which must be imposed and which cannot be probated or conditionally discharged. Aggravating factors only act to enhance minimum jail sentences. Aggravating factors do not enhance fines, fees and license suspensions.
The aggravating factors are:
- Operating a motor vehicle over thirty (30) miles per hour above the speed limit;
- Operating a motor vehicle in the wrong direction on a limited access highway;
- Operating a motor vehicle that causes an accident resulting in death or serious physical injury;
- Operating a motor vehicle while the alcohol concentration in the operator's blood or breath is 0.15 or more as measured by a test or tests of a sample of the operator's blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;
- Refusing to submit to any test of one's blood, breath or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of the DUI laws;
- Operating a motor vehicle transporting a passenger under the age of twelve (12) years old.
Mandatory minimum jail sentences for a DUI with an aggravating factor are:
First Offense: Four days;
Second Offense: 14 days;
Third Offense: 60 days; and
Fourth Offense: 240 days.
The aggravating factors do not apply to under-21 DUIs. There is no prohibition on dismissal by the prosecution of the aggravated circumstance to avoid the minimum mandatory sentence. For a first offense, the aggravating factor must be present at the time of operation of the motor vehicle. This excludes imposition of the mandatory minimum jail sentence for refusals since refusals cannot occur at the time of operation of a motor vehicle.
INTERLOCK IGNITION DEVICES
Interlock ignition devices are now required for first offenders with aggravating circumstances and repeat offenders. In certain cases, you can apply for an interlock ignition device if you have been pretrial suspended for refusal to submit to a chemical test or for being a repeat offender. Please consult a qualified DUI attorney to determine if and when you can apply for an interlock ignition device.
DRIVING WHILE YOUR LICENSE IS SUSPENDED
First Offense Driving on a DUI Suspended License
The penalty for a first offense of driving on a DUI suspended license is not over ninety (90) days of jail time and the fine is not more than $250.00. The District Judge will suspend the driver's license for six months. If you are driving DUI while DUI suspended, it is a Class A misdemeanor with not over 12 months jail time and a fine of not more than $500.00. The license suspension is one year.
Second Offense for Driving on a DUI Suspended License
The penalty for a second offense of driving on DUI suspended license is not over twelve (12) months of jail time and the fine is not more than $500. The driver's license suspension is one year. If you are driving DUI while DUI suspended, second offense, it is a Class D felony with one to five years jail time and a fine of not less than $1,000.00 or more than $10,000.00. The license suspension is two years.
Third Offense or more for Driving on a DUI Suspended License
The penalty for a third offense of driving on a DUI suspended license is a Class D felony with between one and five years of jail time and a fine of not less than $1,000 or more than $10,000. The driver's license suspension is two years. If you are driving DUI while DUI suspended, third offense, it is a Class D felony with one to five years jail time and a fine of not less than $1,000.00 or more than $10,000.00. The license suspension is five years.
Driving on a DUI suspended license now includes driving on an under-21 DUI suspension, refusal, pretrial and interlock device suspensions.
Multiple DUI offenders: Surrendering License Plates or Ignition Interlock Devices
All persons convicted of second or greater DUI offenses must have one disabling option imposed by the Court. The Court may impound the license plate or plates of all motor vehicles owned, solely or jointly, by the offender. The suspension of the plate or plates shall not exceed the driver's license suspension time. Family members or others may apply to the Court for a hardship exception. Before or after impoundment, the vehicle can be transferred to a joint owner or sold.
In lieu of impounding plates, the Court will order the installation of an ignition interlock device that prohibits starting a vehicle if the driver's breath alcohol level is over 0.02. This option begins after the minimum period of driver's license suspension.
If you are operating or in physical control of a motor vehicle anywhere in Kentucky you are deemed to have given your consent to one or more tests of your blood, breath, or urine to determine alcohol concentration. This is called the implied consent law. At the testing site, when a chemical test is requested, you shall be informed that: (1) a refusal may be used against you in court as evidence and will cause suspension of your driver's license; if you refuse and are subsequently convicted of DUI you will be subject to a mandatory jail sentence twice if the mandatory jail sentence imposed if you submit to the tests (on second offense or greater); and if you refuse you cannot obtain a hardship license. If you submit to the requested tests, you have the right to a test or tests of your blood performed by a person of your choosing within a reasonable time and at your expense. You must be advised of this right and asked, “Do you want such a test?” Remember you must submit to all requested police chemical tests, except a portable breath test, before you have the right to an independent test.
Even if you are acquitted of DUI the court shall impose the appropriate license suspension for refusing to submit to a chemical test. For a DUI first offense refusal, a driver's license shall be suspended for 30 days to 120 days. For a DUI second offense refusal, a driver's license shall be suspended for 12 months to 18 months. For a DUI third offense refusal, a driver's license shall be suspended for 24 months to 36 months. For a DUI fourth offense refusal, a driver's license shall be suspended for sixty (60) months.
PRACTICAL TIP: Sometimes, refusing all chemical tests may be more beneficial than the consequences that may result from an unfavorable test result. For instance, if you are arrested for DUI and have an aggravating factor already present, you should probably refuse all chemical tests.
PRACTICAL TIP TWO: Hospitals are always attempting to be released from all sorts of liability. Most time, before a hospital will draw blood from an accused drinking driver, at law enforcement's request, the hospital will attempt to have the accused sign a liability release. The hospital wants to be relieved from damages if it breaks the needle off in your arm or gives you an incurable disease. You are not required to release the hospital from any such liability. Do not sign the form. Usually if you don't sign the form the hospital won't draw your blood. The cop will call this a “refusal” right? He might, but under Kentucky law he or she will be wrong. It is not considered a refusal if the hospital won't take your blood because you won't release it from liability.
PRACTICAL TIP THREE: If you are arrested for DUI and have submitted to all government chemical testing, you can have an independent test or tests of your blood, breath or urine. This can usually be accomplished at a local hospital. The police must transport you to the independent testing site and should allow you access to a telephone to obtain the funds for testing. As a general rule, obtaining an independent test is neither advisable or helpful to your defense. Consult with an attorney before requesting an independent test.
Prosecutor's duties regarding amending charges of DUI
In Kentucky there is an anti-plea-bargaining statute. Many people think their DUI charge can be resolved with an easy reduction to reckless driving. Usually, the prosecutor is prohibited from amending a DUI charge to reckless driving. When an alcohol concentration for a driver over 21 is above 0.08, for a driver under 21 is above 0.02 or when the drinking driver refuses to take an alcohol concentration test, Kentucky law states a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge unless all prosecution witnesses are, and will continue to be, unavailable. The prosecutor cannot amend the alcohol concentration unless uncontroverted scientific evidence is presented that the test results were in error.
Pre-Trial License Suspensions
Prior to trial the Court shall at arraignment or when it has information suspend the license of the accused if the accused: (1) refused a chemical test, (2) has been convicted of one or more DUIs or has had his license suspended on one or more occasions for refusing to take an alcohol concentration test in the five years preceding the arrest; or (3) was involved in an accident that resulted in death or serious physical injury to a person other than the accused. The accused may ask for a review of the suspension and the Court shall conduct a review within thirty (30) days of filing the motion.
Preliminary Breath Tests and Divided Attention Testing
You are not required under Kentucky law to submit to preliminary breath testing or divided attention testing. The refusal to submit to preliminary breath testing is not admissible in trial. A preliminary breath test is usually conducted at the scene of the stop. A small, hand-held device is usually offered to the accused. Divided attention testing is also called field sobriety tests by law enforcement. Such exercises are not tests and in no way measure sobriety. Law enforcement will ask you to hold one foot in the air with your arms pinned to your sides while counting to 30 by thousands (one, one thousand, two, one thousand, etc.). Another popular police manufactured exercise is the walk-and-turn, which requires the accused to walk nine steps heel-to-toe forward, turn, and walk nine steps heel-to-toe back all the while with arms pinned to sides. A third so-called test is the horizontal gaze nystagmus (HGN). The officer will wave his finger or some other object before an accused's eyes to allegedly measure whether the eyes exhibit jerking motions at certain locations. Appeals courts in at least half of the states have rejected HGN testing. Sadly, Kentucky still permits law enforcement officers to testify about HGN.
PRACTICAL TIP: Under no circumstances should you take a preliminary breath test or any so-called field sobriety test. The officer will attempt to intimidate or harass you into taking these tests, but respectfully decline. Polite refusals: “No sir I am not required under Kentucky law to submit to a preliminary breath test.” “No sir, there is no connection between being able to stand on one leg and operating a motor vehicle safely in the Commonwealth of Kentucky.” “No sir I just recently had my eyes examined by a licensed, practicing physician and they are just fine.”
PRACTICAL TIP TWO: Do not confuse a roadside preliminary breath test with an Intoxilyzer breath test. A preliminary breath tester is usually a small, hand-held device. The Intoxilyzer is a large, stationary machine, usually at the jail. There are no consequences for refusing the preliminary breath test. You may want to submit to the test to determine whether or not to submit to the Intoxilyzer test at the jail. Depending on your circumstances there may be many consequences for refusing to submit to an Intoxilyzer breath test.
I WANT MY LAWYER!
If arrested for DUI, you must be given a chance to contact a lawyer. The opportunity is for not less than ten minutes or over 15 minutes during the observation period prior to a breath test or at the hospital prior to blood or urine testing. Failure to contact a lawyer does not excuse you of the obligation to take the chemical test. If you have any questions, please call or email me today.