2013 Kentucky Revised Statutes CHAPTER 189A - DRIVING UNDER THE INFLUENCE 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, a controlled substance, or other substance which impairs driving ability prohibited -- Admissibility of alcohol concentration test results -- Presumptions -- Penalties -- Aggravating circumstances.
Download as PDF
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, a controlled substance, or other
substance which impairs driving ability prohibited -- Admissibility of
alcohol concentration test results -- Presumptions -- Penalties -Aggravating circumstances.
(1)
(2)
(3)
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) 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).
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) of this section. The results of the test or tests,
however, may be admissible in a prosecution under subsection (1)(b) or (e) of
this section.
In any prosecution for a violation of subsection (1)(b) or (e) 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,
(4)
(5)
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) of this section.
(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.
Any person who violates the provisions of paragraph (a), (b), (c), (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; and
(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) 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) 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 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.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 17, effective July 15, 2010. -Amended 2002 Ky. Acts ch. 183, sec. 19, effective August 1, 2002. -- Amended
2000 Ky. Acts ch. 467, sec. 2, effective October 1, 2000. -- Amended 1998 Ky.
Acts ch. 124, sec. 8, effective July 15, 1998; and ch. 606, sec. 171, effective
July 15, 1998. -- Amended 1996 Ky. Acts ch. 198, sec. 1, effective October 10,
1996. -- Amended 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 2, effective July
1, 1991. -- Created 1984 Ky. Acts ch. 165, sec. 1, effective July 13, 1984.
Disclaimer: These codes may not be the most recent version. Kentucky may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.