Got a DUI in Louisville - What your DUI lawyer should do and what facts and factors you should know

Prosecutor's duties regarding amending charges of DUI
Kentucky has an anti-plea-bargaining DUI statute. Many people are under the mistaken impression that DUI's can be resolved with an easy amendment of the charge to reckless driving. This is no longer the case in Kentucky. Because of the actions of certain prosecutors and judges several years ago, the General Assembly passed a law prohibiting prosecutor from amending DUI's. When an alcohol concentration for a driver over 21 is above 0.08, for a driver under 21 is above 0.02, or when the defendant refuses to take an alcohol concentration test, Kentucky law states:

A prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and will continue to be, unavailable.

The prosecutor cannot amend the alcohol concentration unless uncontroverted scientific evidence is presented that the test results were in error.

Pre-Trial License Suspensions

Kentucky law requires Judges at arraignment or as soon as it has information suspend the license of the accused if the accused:

1. refused a breath, blood or urine test. (The law enforcement officer may request that you submit to a blood test, breath test or urine test or all three tests. You do not have the right to pick the test. After you submit to the officers test(s) you may request a blood test by a qualified person of your choosing within a reasonable time of your arrest.)  Beach v. Commonwealth.

2. has been convicted of one or more DUIs or has had his license suspended on one or more occasions for refusing to take an alcohol concentration test in the five years preceding the arrest; or

3.  was involved in an accident that resulted in death or serious physical injury to a person other than the accused.

The accused may ask for a review of the suspension and the Court shall conduct a review within thirty (30) days of the filing of the motion.

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 0.15 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;
(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; (DUI 2nd and subsequent offenses)
(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: 4 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.

DRIVING UNDER THE INFLUENCE

Motorists in Kentucky can be charged with five different DUI violations. Kentucky's different types of DUI are:

(1) operating or in physical control of a motor vehicle under the influence of alcohol;
(2) operating or in physical control of a motor vehicle with a prohibited alcohol concentration;
(3) operating or in physical control of a motor vehicle while under the influence of any other substance which impairs driving ability;
(4) operating or in physical control of a motor vehicle while under the influence of a combination of alcohol any substance which impairs driving ability; and
(5) if under 21 years of age and operating or in physical control of a motor vehicle with a prohibited alcohol concentration.

The Kentucky DUI laws cover operating or physical control of a motor vehicle "anywhere" in the state, which includes private property. Yes, farmers on their own property have been convicted of operation a motor vehicle under the influence of alcohol for merely driving their truck on their property, despite the fact that they never operated on a public roadway. In a recent opinion, the court opined that a moped is  a motor vehicle.

Client Interview Form - Print out for review and completion

DUI Client Interview - Print out for review and completion

DUI First Offenders Diversion Program (FODP) Info Sheet

DUI Alcohol Education Treatment Programs