In Kentucky, 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. can result in criminal penalties. That’s why it’s important, if you’ve been arrested in Kentucky, to contact an experienced lawyer right away.

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 the 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 the arrest date to arrest date.

First offense Kentucky DUI Cases are punished as follows:

  • Fine: $200.00-$500.00 (plus statutory service fee of $375.00 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

  • Fine: $350-$500 (plus statutory service fee of $200.00 and other miscellaneous costs.)
  • Jail: seven days to six months. A fine and jail time is 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 more than six (6) months of Community Service is optional in all cases.
  • 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.
  • 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 more than twelve (12) months of Community Service is optional in all cases.
  • 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.
  • 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.

Drivers Under 21

  • Fine: $100-$500.
  • 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 pursuant to the Kentucky DUI statutes shall be imposed, such as jail and the $250 service fee. This type of DUI cannot be used for enhancement purposes. If the alcohol concentration in the under-21 driver is above 0.08, the driver is exposed to the same penalties as an adult.

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:

  1. Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;
  2. Operating a motor vehicle in the wrong direction on a limited-access highway;
  3. Operating a motor vehicle that causes an accident resulting in death or serious physical injury;
  4. 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;
  5. 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;
  6. 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 aggravating 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 the imposition of the mandatory minimum jail sentence for refusals since refusals cannot occur at the time of operation of a motor vehicle.

“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:

  1. a refusal may be used against you in court as evidence and will result in revocation of your driver’s license;
  2. 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
  3. 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 from the obligation to take the chemical test.