DUI
In need of a DUI Lawyer in Warren County Kentucky?
HAWKINS CAN HELP.
So you made a mistake, had a few drinks and got charged with Driving Under the Influence (“DUI”). Don’t make another mistake by going to Court without a DUI attorney. There are many issues that can arise when you are charged with the crime of DUI. For example, did the officer have probable cause to stop your car and then charge you with DUI? What Standard Field Sobriety Tests were you asked to perform? Were the laws and regulations regarding the Intoxilyzer, or breath test, followed? If you have been charged with a DUI, you need a DUI Lawyer in Warren County Kentucky. Call the Hawkins Law Office at 888-745-1933, right now, for a free consultation.
“Remember, don’t enter a plea, before you talk with me.” - Walter Hawkins, DUI Attorney
WHAT MUST BE PROVED FOR A DUI CONVICTION IN KENTUCKY
In Kentucky, the prosecution will have to prove four things to convict you of a DUI: That you were 1) driving, 2) a motor vehicle 3) in Kentucky 4) while under the influence of alcohol or other substances. While these four things may sound simple, each one of these things are worth careful consideration in your case. For example, you may be charged with a DUI for being in “physical control” of a motor vehicle even if you are not driving. If you are driving a lawn mower while under the influence, that may qualify as a “motor vehicle”. Finally, you can be charged with a DUI even if you took a legal prescription drug. So, in Kentucky, you could be charged with a DUI after taking your prescription medication and falling asleep behind the wheel of your running lawn mower.
KENTUCKY DUI LAW
189A.010 Operating motor vehicle with alcohol concentration of or above 0.08, or of or above 0.02 for persons under age twenty-one, or while under the influence of alcohol or other substance which impairs driving ability prohibited — Admissibility of alcohol concentration test results — Presumptions — Penalties — Aggravating circumstances.
(1) A person shall not operate or be in physical control of a motor
vehicle anywhere in this state:
(a) Having an alcohol concentration of 0.08 or more as measured by a
scientifically reliable test or tests of a sample of the person’s breath or
blood taken within two (2) hours of cessation of operation or physical
control of a motor vehicle;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of
substances which impairs one’s driving ability;
(d) While the presence of a controlled substance listed in subsection
(12) of this section 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;
(e) While under the combined influence of alcohol and any other
substance which impairs one’s driving ability; or
(f)[(e)] Having an alcohol concentration of 0.02 or more as measured by
a scientifically reliable test or tests of a sample of the person’s breath
or blood taken within two (2) hours of cessation of operation or physical
control of a motor vehicle, if the person is under the age of twenty-one
(21).
(2) With the exception of the results of the tests administered pursuant
to KRS 189A.103(7), if the sample of the person’s blood or breath that is
used to determine the alcohol concentration thereof was obtained more than
two (2) hours after cessation of operation or physical control of a motor
vehicle, the results of the test or tests shall be inadmissible as evidence
in a prosecution under subsection (1)(a) or (f)[(e)] of this section. The
results of the test or tests, however, may be admissible in a prosecution
under subsection (1)(b) or (e)[(d)] of this section.
(3) In any prosecution for a violation of subsection (1)(b) or (e)[(d)]
of this section in which the defendant is charged with having operated or
been in physical control of a motor vehicle while under the influence of
alcohol, the alcohol concentration in the defendant’s blood as determined at
the time of making analysis of his blood or breath shall give rise to the
following presumptions:
(a) If there was an alcohol concentration of less than 0.05 based upon
the definition of alcohol concentration in KRS 189A.005, it shall be
presumed that the defendant was not under the influence of alcohol; and
(b) If there was an alcohol concentration of 0.05 or greater but less
than 0.08 based upon the definition of alcohol concentration in KRS
189A.005, that fact shall not constitute a presumption that the defendant
either was or was not under the influence of alcohol, but that fact may be
considered, together with other competent evidence, in determining the guilt
or innocence of the defendant.
The provisions of this subsection shall not be construed as
limiting the introduction of any other competent evidence bearing upon the
questions of whether the defendant was under the influence of alcohol or
other substances, in any prosecution for a violation of subsection (1)(b) or
(e)[(d)] of this section.
(4) (a) Except as provided in paragraph (b) of this subsection, the
fact that any person charged with violation of subsection (1) of this
section is legally entitled to use any substance, including alcohol, shall
not constitute a defense against any charge of violation of subsection (1)
of this section.
(b) A laboratory test or tests for a controlled substance shall be
inadmissible as evidence in a prosecution under subsection (1)(d) of this
section upon a finding by the court that the defendant consumed the
substance under a valid prescription from a practitioner, as defined in KRS
218A.010, acting in the course of his or her professional practice.
(5) Any person who violates the provisions of paragraph (a), (b), (c),[
or] (d), or (e) of subsection (1) of this section shall:
(a) For the first offense within a five (5) year period, be fined not
less than two hundred dollars ($200) nor more than five hundred dollars
($500), or be imprisoned in the county jail for not less than forty-eight
(48) hours nor more than thirty (30) days, or both. Following sentencing,
the defendant may apply to the judge for permission to enter a community
labor program for not less than forty-eight (48) hours nor more than thirty
(30) days in lieu of fine or imprisonment, or both. If any of the
aggravating circumstances listed in subsection (11) of this section are
present while the person was operating or in physical control of a motor
vehicle, the mandatory minimum term of imprisonment shall be four (4) days,
which term shall not be suspended, probated, conditionally discharged, or
subject to any other form of early release.
(b) For the second offense within a five (5) year period, be fined not
less than three hundred fifty dollars ($350) nor more than five hundred
dollars ($500) and shall be imprisoned in the county jail for not less than
seven (7) days nor more than six (6) months and, in addition to fine and
imprisonment, may be sentenced to community labor for not less than ten (10)
days nor more than six (6) months. If any of the aggravating circumstances
listed in subsection (11) of this section are present, the mandatory minimum
term of imprisonment shall be fourteen (14) days, which term shall not be
suspended, probated, conditionally discharged, or subject to any other form
of early release.
(c) For a third offense within a five (5) year period, be fined not less
than five hundred dollars ($500) nor more than one thousand dollars ($1,000)
and shall be imprisoned in the county jail for not less than thirty (30)
days nor more than twelve (12) months and may, in addition to fine and
imprisonment, be sentenced to community labor for not less than ten (10)
days nor more than twelve (12) months. If any of the aggravating
circumstances listed in subsection (11) of this section are present, the
mandatory minimum term of imprisonment shall be sixty (60) days, which term
shall not be suspended, probated, conditionally discharged, or subject to
any other form of early release.
(d) For a fourth or subsequent offense within a five (5) year period, be
guilty of a Class D felony. If any of the aggravating circumstances listed
in subsection (11) of this section are present, the mandatory minimum term
of imprisonment shall be two hundred forty (240) days, which term shall not
be suspended, probated, conditionally discharged, or subject to any other
form of release.
(e) For purposes of this subsection, prior offenses shall include all
convictions in this state, and any other state or jurisdiction, for
operating or being in control of a motor vehicle while under the influence
of alcohol or other substances that impair one’s driving ability, or any
combination of alcohol and such substances, or while having an unlawful
alcohol concentration, or driving while intoxicated, but shall not include
convictions for violating subsection (1)(f)[(e)] of this section. A court
shall receive as proof of a prior conviction a copy of that conviction,
certified by the court ordering the conviction.
(6) Any person who violates the provisions of subsection (1)(f)[(e)] of
this section shall have his driving privilege or operator’s license
suspended by the court for a period of no less than thirty (30) days but no
longer than six (6) months, and the person shall be fined no less than one
hundred dollars ($100) and no more than five hundred dollars ($500), or
sentenced to twenty (20) hours of community service in lieu of a fine. A
person subject to the penalties of this subsection shall not be subject to
the penalties established in subsection (5) of this section or any other
penalty established pursuant to KRS Chapter 189A, except those established
in KRS 189A.040(1).
(7) If the person is under the age of twenty-one (21) and there was an
alcohol concentration of 0.08 or greater based on the definition of alcohol
concentration in KRS 189A.005, the person shall be subject to the penalties
established pursuant to subsection (5) of this section.
(8) For a second or third offense within a five (5) year period, the
minimum sentence of imprisonment or community labor shall not be suspended,
probated, or subject to conditional discharge or other form of early
release. For a fourth or subsequent offense under this section, the minimum
term of imprisonment shall be one hundred twenty (120) days, and this term
shall not be suspended, probated, or subject to conditional discharge or
other form of early release. For a second or subsequent offense, at least
forty-eight (48) hours of the mandatory sentence shall be served
consecutively.
(9) When sentencing persons under subsection (5)(a) of this section, at
least one (1) of the penalties shall be assessed and that penalty shall not
be suspended, probated, or subject to conditional discharge or other form of
early release.
(10) In determining the five (5) year period under this section, the
period shall be measured from the dates on which the offenses occurred for
which the judgments of conviction were entered.
(11) For purposes of this section, aggravating circumstances are any one
(1) or more of the following:
(a) Operating a motor vehicle in excess of thirty (30) miles per hour
above the speed limit;
(b) Operating a motor vehicle in the wrong direction on a limited access
highway;
(c) Operating a motor vehicle that causes an accident resulting in death
or serious physical injury as defined in KRS 500.080;
(d) Operating a motor vehicle while the alcohol concentration in the
operator’s blood or breath is 0.15[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;
(e) Refusing to submit to any test or tests 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 subsection (1) of this section; and
(f) Operating a motor vehicle that is transporting a passenger under the
age of twelve (12) years old.
(12) The substances applicable to a prosecution under subsection (1)(d) of
this section are:
(a) Any Schedule I controlled substance except marijuana;
(b) Alprazolam;
(c) Amphetamine;
(d) Buprenorphine;
(e) Butalbital;
(f) Carisoprodol;
(g) Cocaine;
(h) Diazepam;
(i) Hydrocodone;
(j) Meprobamate;
(k) Methadone;
(l) Methamphetamine;
(m) Oxycodone;
(n) Promethazine;
(o) Propoxyphene; and
(p) Zolpidem.
TOP OBVIOUS (AND NOT-SO-OBVIOUS) WAYS TO AVOID A DUI
OBVIOUS
1. Don’t drive while under the influence of drugs or alcohol.
2. Have a designated driver.
3. Don’t do illegal drugs.
4. Follow instructions on prescription drug labels.
5. Contact a DUI attorney immediately.
6. Follow all traffic laws.
NOT-SO-OBVIOUS
7. Have all equipment in working order (tail lights, blinkers, etc.).
8. Timely register your car and place sticker on license plate and license plate on car.
9. Do not drive between 1:00 and 5:00am for fun, especially on weekends.
10. Do not have an open container of alcohol in your car.
11. Do not do any field sobriety tests if you plan on fighting the DUI.
12. If first offense, do not take the intoxilyzer (i.e. breath test).
13. Do not fidget with the radio.
14. Do not fidget with your cell phone.
PUTTING YOU FIRST: FREE CARD TO GIVE TO OFFICERS IF STOPPED FOR DUI in Kentucky
This card is provided for informational purposes only, and NOT intended as legal advice. The decision to use this card does not create an attorney-client relationship and you are solely responsible for any consequences to your case should you decide to use this information.
For more information, contact The Hawkins Law Office today by calling 270-745-1993 or 888-745-1933 or via email at walter@walterhawkins.com for a free consultation.
