What Driving Under the Influence (DUI) is and what it is not and why you may want to fight the charges.
Groups like Mothers Against Drunk Driving tell us that you are DUI if you drive after having one drink or a couple drinks. Public awareness campaigns tell us that "buzzed driving is drunk driving." These campaigns are scare tactics, which do not differentiate between legal driving and DUI. Police officers are encouraged to aggressively seek out potential DUI offenders. The result is a "arrest and sort it out later" mentality that pervades our criminal justice system. This means that a lot of people plead guilty to DUI when they are not actually breaking the law.
A DUI charge is no joke.
DUI is serious. A DUI carries with it not only potential criminal penalties, which include jail time and fines, but also civil penalties ranging from the loss of your license to drive to your inability to maintain or be hired at certain jobs. Additionally, your insurance is going to increase substantially and you may be required to install an ignition interlock device or your vehicle.
What is DUI?
In the Commonwealth, it is illegal to be operating or in physical control of a motor vehicle while:
- Having an alcohol concentration of .08 or more as measured by a test of your breath or blood, which must be taken within two hours of you having operated or been in physical control of a motor vehicle;
- While under the influence of alcohol, drugs, or a combination of drugs and alcohol, or any other substance that impairs your driving ability;
- While a controlled substance is detected by a blood test, which must be taken within two hours of you having operated or been in physical control of a motor vehicle; OR
- If you are under 21 years of age, having a blood alcohol concentration of .02 or more as measured by a scientifically reliable test, which must be taken within two hours of you having operated or been in physical control of a motor vehicle.
DUI is an enhanceable offense meaning that the penalty for DUI in the Commonwealth depends on whether or not you have been previously convicted or entered a plea of guilty to DUI within the last 10 years. Thus, for DUI, the potential penalties are as follows:
Additionally, a DUI conviction requires that the offender pay a DUI service fee and must complete Alcohol/Drug Education courses (the length of which is also determined by whether your are convicted of DUI first, second, third, or fourth or subsequent).
In the Commonwealth, additional penalties are imposed for what are known as "aggravating circumstance." Aggravating circumstances include operating a vehicle:
- At 30 mph or more over the speed limit;
- In the wrong direction on a limited access highway;
- That causes an accident that results in death or serious injury to another person;
- With a blood alcohol concentration of .15 or more;
- Refusing to submit to a test of alcohol concentration (if this is a second or greater within 10 years DUI charge); OR
- While transporting a passenger who is under 12 years old.
If any of these aggravating circumstances are present, the minimum period of incarceration is doubled and service of that minimum sentence becomes mandatory without the possibility of early release.
Kentucky's Implied Consent Statute.
After you have been arrested on suspicion of DUI, the arresting officer is required to read to you the implied consent statute before requesting that you submit to a test of your breath, blood, or urine. The law states that anyone who drives on Kentucky's roads has already consented to a test of their breath, blood, or urine if an officer has probable cause to believe that the DUI statute has been violated. That is right, the officer just told you that you agreed to his test without even knowing about it. Now, you can refuse this test, but then it would not be a very good implied law if you can refuse without any consequences. Refusing to submit to a test of your breath, blood, or urine (this is not the portable breath test), will impose civil, criminal, and evidentiary consequences. The civil consequence is that your license to drive will be suspended pre-trial (at the time of arraignment) if you refuse. Additionally, your refusal may be used against you at trial as evidence of your having violated the DUI statute. Finally, your refusal is an aggravator (if this is your second or greater DUI charge within 10 years), which means that the minimum period of incarceration is doubled if you are convicted.
You need to make a serious decision.
You are not going to have a lot of time to make a decision of whether or not to take the offered test (the officer chooses the test he or she wants to offer). Importantly, the officer should give you between 10-15 minutes to attempt to contact an attorney. Even after speaking to an attorney, this is not an easy decision. Refuse and you will lose your license to drive pretrial and it may be an aggravator. If you take the test, however, you are giving the Commonwealth a number that they will use to attempt to prove your guilt. You will have to make a decision suited to your needs. The chart below gives you a rough estimate of your BAC depending on your body weight and number of drinks consumed. Remember, this is only an estimate, and there are a myriad of factors that actually go into determining your real BAC.
Now that you know a little bit about what you are facing if convicted of DUI, we should talk about how I defend a DUI.
DUI defense is centered around the officer who arrested you and any test to determine your alcohol concentration. In Kentucky, all police officers are required to attend training at Eastern Kentucky University's Department of Criminal Justice Training. As part of their initial training, they will receive substantial DUI enforcement training. Many officers, after leaving the academy, do not continue to improve their DUI enforcement training. This is important because DUI in Kentucky is fundamentally about officer training. When an officer does not follow their training, it increases your chances of successfully fighting the charges.