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Kentucky DUI cases can be charged in two different
ways: either violating the law prohibiting
driving
under the influence of alcohol (or
other drugs), which
relates to a
loss of one's physical or mental
faculties as the result of drinking; or by
violating
Kentucky's per se law, simply by driving with an
alcohol level of .08% or more. (For drivers under the
age of 21, the limit is .02%.)
Before political groups, such as MADD (http://www.madd.org), took over
the legislative process, to get a DUI conviction in
Kentucky the government had to prove driver was "under
the influence of alcohol." This type of case is
pursued even if no alcohol content 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.
Now, drunk driving cases can be brought even if
there is no impairment to a person's driving, due to
the per se laws. These laws criminalize driving based
upon
the
"science" of blood or breath alcohol testing,
and being above a certain level, even if there is
nothing whatsoever wrong with the way the person is
driving.
Kentucky "repeat offender" status for DUI cases is
determined based upon a
five-year
"lookback" period.
This status is used for purposes of increased
mandatory minimum punishment. This "lookback" period
has nothing to do with how long a DUI remains on your
record. For purposes of Kentucky law, the "lookback"
period is calculated from arrest date to arrest date.
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First offense Kentucky DUI Cases are punished as
follows:
- Fine: $200.00-$500.00 (plus statutory service
fee of $250.00 and other miscellaneous costs.)
- Jail: 48 hours to 30 days. Under Kentucky law
for a first offender, either a fine or jail must be
imposed.
- 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 more than 30
days.
- 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
more than 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.
- Alcohol and Drug Assessment and Treatment:
Ninety days.
Any
non-Kentucky 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 of the case 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.
 DUI Second Offense
DUI Third Offense
DUI Fourth Offense
Drivers Under 21
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Aggravating Factors
The new DUI law in Kentucky, effective October 1,
2000, establishes 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 in excess of 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
0.18 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 that is 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.
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"Refusal" Penalties
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 for purposes of determining
alcohol concentration. This is called the implied
consent law.
At the testing site, at the time a chemical test is
requested, you shall be informed that:
- a refusal may be used against you in court as
evidence and will result in revocation of your
driver's license;
- if you refuse and are subsequently convicted of
DUI you will be subject to a mandatory jail sentence
which is twice as long as the mandatory jail
sentence imposed if you submit to the tests; and
- if you refuse you will not be able to 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
specifically 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 the DUI at trial, 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.
Right to a Lawyer
Kentucky drunk driving law is unique in one key
respect: If arrested for DUI, you now must be afforded
an opportunity to attempt to contact a lawyer. The
opportunity is for not less than ten minutes or more
than 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 during this
time does not excuse you of the obligation to take the
chemical test.
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If you, or someone you care about, have been arrested for drunk driving, contact a qualified Kentucky DUI defense attorney for a free consultation by calling 1.800.DUI.LAWS. Protect your rights - call today! |
