Kentucky Justice and Public Safety Cabinet DEPARTMENT OF CRIMINAL JUSTICE TRAINING Funderburk Bldg. 521 Lancaster Ave Richmond, KY LESSON PLAN

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1 Kentucky Justice and Public Safety Cabinet DEPARTMENT OF CRIMINAL JUSTICE TRAINING Funderburk Bldg. 521 Lancaster Ave Richmond, KY LESSON PLAN DUI Law 030B-12J 9/24/02 1

2 COVER PAGE TIME: 100 COURSE NAME: TITLE: CLASS LEVEL: OBJECTIVES: Law Enforcement Basic Academy DUI Law Basic AT THE END OF THE SESSION EACH LEARNER WILL BE ABLE TO: "See Objectives" METHOD OF INSTRUCTION: METHOD OF TESTING: TRAINING AIDS: Charts (4) REFERENCES: Facilitation, Lecture Written Computer, Proxima Projector, Powerpoint Software, Flip "See References" COMPLETED BY: Kenneth P. Alexander DATE: 9/24/02 REVISIONS BY: Michael S. Schwendeman DATE OF REVISIONS: 1/15/10 APPROVED BY: DATE APPROVED: 2

3 Objectives 1. Using the provided Kentucky Criminal Law Manual, the recruit will be able to identify the penalties for violation of DUI of a motor vehicle, a non-motor vehicle, a non-motor vehicle and a commercial motor vehicle in accordance with KRS and applicable case law. 2. Using the provided Kentucky Criminal Law Manual, the recruit will be able to identify reasons for and the lengths of periods of pretrial and post-conviction license suspensions in accordance with KRS and applicable case law. 3. Using the provided Kentucky Criminal Law Manual, the recruit will be able to analyze given facts to determine if the offense of operating a motor vehicle while license is suspended for DUI is committed in accordance with KRS and applicable case law. 4. Using the provided Kentucky Criminal Law Manual, the recruit will be able to identify the elements of driving under the influence for a motor vehicle, a nonmotor vehicle, and a commercial motor vehicle in accordance with KRS and applicable case law. 5. Using the provided Kentucky Criminal Law Manual, the recruit will be able to determine if probable cause has been established that an individual was operating or in physical control of a motor vehicle in accordance with KRS and applicable case law. 6. Using the provided Kentucky Criminal Law Manual, the recruit will be able to determine if field sobriety and preliminary breath tests are properly conducted, and explain how the results may be properly used in court in accordance with KRS and applicable case law. 3

4 I INTRODUCTION II OFFENSES A. DUI INVOLVING A MOTOR VEHICLE KRS 189A.010(1) 1. LAW (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 under the combined influence of alcohol and any other substance which impairs one's driving ability; or (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. ELEMENTS a. A person shall not b. (1) Operate or (2) Be in physical control of c. A motor vehicle d. Anywhere in this state e. (1) Having an alcohol concentration of.08% or more or (2) While under the influence of alcohol or 4

5 (3) While under the influence of any other substance or combination of substances which impairs one's driving ability or (4) While under the combined influence of alcohol and any other substance which impairs one's driving ability; or (5) Having an alcohol concentration of 0.02 or more if the person is under the age of twenty-one (21). 3. NOTES a. Element: person Must the person be: licensed to drive? -- NO. old enough to be licensed to drive? - NO. a resident of Kentucky? - NO. The word "person" means ANY person. b. Element: operates (1) in officer's presence (a) This is the usual DUI situation. An officer gets evidence that makes him suspect that DUI is taking place in his presence (e.g., he observes the car in front of him weave back and forth). (b) The officer's observation that a person is at the wheel of a moving motor vehicle is enough to establish the operating element to the level of probable cause, which is what the officer needs to have the authority to arrest. (c) The officer's observation should also be enough for the prosecutor to establish the operating element at trial. (2) Not in officer's presence (a) Let's consider the situation in which the DUI is no longer in progress when the officer arrives. (b) How can the officer develop probable cause to believe the person had been operating while intoxicated? (The person may claim that he drove there, to where the car is parked, sober and only then did he start getting intoxicated.) 1) Direct evidence The operating element may be established by direct evidence such as eyewitnesses and a confession by the defendant. 5

6 2) Circumstantial evidence a) Motor vehicle not on traveled portion of the road 1. The officer should check for a warm engine and other evidence of recent operating. 2. Also, if there are no intoxicating substances in or near the vehicle, this is evidence the person used intoxicants elsewhere and then drove to this place. b) Motor vehicle on traveled portion of the road. 1. In this situation it would be unlikely that the person drove to this place sober, parked, and then started using intoxicants. 2. In Newman v. Stinson, 489 S.W.2d 826 (Ky. 1972), officers found the defendant nearly "passed out" at the wheel of his car which was stopped at a stop light. The court said the officers had reasonable grounds to believe the defendant had been operating (while intoxicated). c. Element: in physical control of (1) It is possible to have DUI before the motor vehicle is in motion. (2) This situation involves (a) being at the wheel of, or otherwise in control of, a non-moving motor vehicle and (b) having the intent to operate the motor vehicle. (3) "In control of" (a) Say you observe a drunk stagger toward, and get into, his car. At what point is he "in control of" the car? (b) The DeHart case involved a man stepping onto the running board of his truck. (c) Certainly, if the person has seated himself at the wheel of a motor vehicle he is in control of it. (4) "with intent to operate" (a) The person in control of the motionless motor vehicle must have the intent to operate it. (b) What has to happen for you to have probable cause to believe this is the person's intent? Must he put the key in the ignition? 6

7 Turn on the engine? Put the transmission in gear? (c) There is room for disagreement; discuss this with your prosecutor. (d) It is best if there is evidence to overcome the defendant's possible claim that his intent was not to put the motor vehicle in motion but to turn on the heater, turn on the air conditioning, etc.. (5) DeHart v. Gray, 245 S.W.2d 434 (Ky. 1952) the Court of Appeals held that the operating element of DUI was met when DeHart stepped on the running board of his truck with the stated intention of moving it. (6) Wells v. Com., 709 S.W.2d 847 (Ky. App. 1986) Wells was asleep at the wheel of his van, which was parked in a motel parking lot. the key was in the ignition, the engine was running, the transmission was in neutral, and the emergency brake was on. The court held that the operating element was not met and said that the most important item of evidence was the fact that Wells was asleep. Since he was asleep, he did not have the intent to operate the van. Also, the setting of the emergency brake and the transmission indicated he did not have the intent to operate. (7) Harris v. Com., 709 S.W.2d 846 (Ky. App. 1986) Harris was asleep at the wheel of his truck, which was parked in the parking lot of a fast-food restaurant. The key was in the ignition and turned to the "on" position, but the engine was not running. The court held the operating element was not met, that the facts do not show the intent to operate. 7

8 d. Element: motor vehicle Nemeth v. Com. 944 SW2d 981 (Ky App 1997) [M]otor vehicle was not defined in KRS 189A, and the definition of vehicle, as used in KRS Chapter 189, was for the use of that term as used in that chapter and not necessarily as used in KRS Chapter 189A. Since there is no specific statutory definition of motor vehicle in KRS Chapter 189A, we should construe that term in accordance with its common and approved usage. Since a farm tractor is a vehicle, has a motor, and is frequently operated on public roads and highways, common sense tells us that a farm tractor is a motor vehicle as that term is used in KRS Chapter 189A. e. Element: anywhere in this state The operating does not have to be on a public roadway; it may be on a private roadway or off-road. f. Alternative Elements (1) having an alcohol concentration of.08% or more (a) Alcohol concentration of 0.08% or more is enough, by itself (per se), to prove this element in court. (b) Since alcohol concentration testing is not done until after the defendant is arrested, the officer, in deciding if he has probable cause to believe all elements of DUI exist, will be considering (1)(b) rather than (1)(a). (c) If there is no evidence of an alcohol concentration of 0.08% or more, the prosecutor may establish this element by proving any one of the following "under the influence" situations: (d) NOTE: Since 2000 the alcohol test must be completed within 2 hours of the suspect ceasing to operate the motor vehicle if the test is to be evidence in a per se case under (1)(a) or (e). Beyond 2 hours the test can still be admitted in an under the influence case under (1)(b) or (d), see (g) and (i) below. (2) while under the influence of alcohol (3) while under the influence of any other substance or combination of substances which impairs one s driving ability 8

9 The substance may even be prescription medication: KRS 189A.010(4): (4) The fact that any person charged with violation of subsection (1) 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. (5) while under the combined influence of alcohol and any other substance which impairs one s driving ability (6) having an alcohol concentration of.02 or more... if the person is under the age of twenty-one 1. LAW B. DUI INVOLVING A VEHICLE NOT A MOTOR VEHICLE KRS ELEMENTS (1) No person under the influence of intoxicating beverages or any substance which may impair one's driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state. a. No person b. Shall operate c. A vehicle that is not amotor vehicle d. Anywhere in this state e. Under the influence of (1) Intoxicating beverages or (2) Any substance which may impair one s driving ability 3. NOTES a. Element: a vehicle that is not a motor vehicle (1) Includes all vehicles powered by muscles--bicycle, horse, horse and buggy, etc. (2) Also includes vehicles with motors which are exempted from the statutory definition of "motor vehicle" -- farm tractors, construction equipment, etc. 9

10 1. LAW C. DUI INVOLVING A COMMERCIAL MOTOR VEHICLE KRS 218A ELEMENTS (1) Notwithstanding any other provision of this chapter, a person shall not drive a commercial motor vehicle within this state while having any measurable or detectable amount of alcohol or other controlled substances in his system. (2) A person who drives a commercial motor vehicle within this state while having any detectable amount of alcohol or controlled substance in his system or who refuses to submit to the test required in KRS 281A.220, shall be placed out of service for twentyfour (24) hours. (3) Any person who drives a commercial motor vehicle within this state with an alcohol concentration of four hundredths percent (0.04%) or more shall be deemed to be operating a vehicle under the influence. (4) Any person who drives a commercial motor vehicle within this state with an alcohol concentration of four hundredths percent (0.04%) or more in addition to any other sanctions which may be imposed under this chapter shall be disqualified from driving a commercial motor vehicle under KRS 281A.190. a. A person b. Shall not drive c. A commercial motor vehicle d. Within this state e. While having any measurable or detectable amount in his system of (1) Alcohol or (2) Other controlled substances 10

11 3. NOTES a. Element: commercial motor vehicle - Commercial motor vehicles (CMVs) are vehicles such as tractor-trailers, other big trucks, buses, and vehicles placarded for carrying hazardous materials. III. DEVELOPING PROBABLE CAUSE TO ARREST A. PERSON IN MOVING VEHICLE BECOMES A SUSPECT 1. reasonable suspicion More than a mere hunch; less than Probable Cause Must be articulable 2. Sources of evidence of DUI a. Officer's observations Most frequently you stop a DUI suspect because you observe him operating his vehicle in a questionable manner--weaving on the roadway, etc. Just keep in mind that erratic driving, or other questionable operation of the vehicle, is not an element of DUI; You may legally stop persons you suspect of DUI who are driving perfectly normally if you have enough evidence, from other sources, to give you "reasonable suspicion" of DUI. Hayden v. Com., 766 S.W.2d 956 (Ky. App. 1989) "While sometimes actual impaired driving is what calls the officer's attention to a particular vehicle and justifies the initial stop, that justification can also come from minor violations which may or may not demonstrate impaired driving,... although evidence of impaired driving and/or impaired driving ability is often present in a D.U.I. trial, neither are an essential element of the offense." b. Information from law enforcement sources You may stop a vehicle merely on a report from a dispatcher, or from another peace officer, so long as the information provides reasonable suspicion for DUI. In one Kentucky case, one officer saw a vehicle driven erratically and passed the word to another officer who did not see any erratic 11

12 driving. The transmission from the first officer was sufficient to justify the stop. c. Information from non-law enforcement sources From identified informant For example, a citizen may walk up to you, or call you at the police station, identify himself, and tell you about seeing a drunk take off driving a vehicle of a certain description. From anonymous informant Information from a person who doesn't identify himself is less reliable than that from a person who is willing to tell who he is. An anonymous tip, by itself, may not be enough to give you the reasonable suspicion you need to stop the suspect. Try to check out the information; the more accurate it checks out to be, the greater weight it has as evidence. Also look for other evidence--erratic driving, for example. 3. Detaining the suspect-- Gathering evidence a. Incriminating questions--miranda The U.S. Supreme Court has held that a DUI suspect who has been stopped is not "in custody" for Miranda purposes. The court said that custody, for Miranda purposes, exists only when a suspect's freedom of action is curtailed to a degree associated with formal arrest. Therefore you may legally ask incriminating questions of the suspect (such as--have you been drinking?) without first giving a Miranda warning. If you end up arresting the suspect, the suspect is in custody for Miranda purposes. b. Preliminary breath test (1) Authorization to administer KRS 189A.100(1) (1) Law enforcement agencies may administer preliminary breath tests using devices or equipment which will ensure an accurate determination of blood alcohol content. Such tests may be administered in the field to a person suspected of violation of KRS 189A.010 before the person is 12

13 arrested. This test may be administered in addition to any other blood alcohol level test authorized by law. A person's refusal to take a preliminary breath test shall not be used against him in a court of law or in any administrative proceeding. (3) Limitation on use of results KRS 189A.104 (1) The only alcohol or substance testing that is subject to refusal or enhancement of penalties provided for in this chapter is: (a) Breath analysis testing by a machine installed, tested, and maintained by the Commonwealth for that specific purpose at a police station or detention facility; (b) Blood or urine testing at the request of the officer at a police station, detention facility, or medical facility; or (c) Combination of tests required in paragraphs (a) or (b) of this subsection. (2) The results of any breath analysis by an instrument other than one specified in subsection (1) of this section shall be inadmissible in court. Subsection (2) clearly prohibits testifying as to specific alcohol levels e.g..08,.18, etc. It probably prohibits testifying as to Pass/Fail, since that would imply a specific level also. Probably the best an officer can do is to testify that it indicated the presence of alcohol. c. Field sobriety tests All courts, including the U.S. Supreme Court, recognize the validity of the various balancing and coordination tests. The suspect may refuse to participate in the testing. If he does refuse, make a note of it--the refusal may be admissible in court as evidence of a guilty mind. 13

14 d. Recording field sobriety tests KRS 189A.100(2) (2) Law enforcement agencies may record on film or video tape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions: (a) The testing is recorded in its entirety... ; and (b) The entire recording is shown in court... ; and (c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it is introduced by the Commonwealth; and (d) The defendant or his counsel is afforded an opportunity to view the entire recording a reasonable time before the trial... ; and (e) Recordings shall be used for official purposes only, which shall include: 1. Viewing in court; 2. Viewing by the prosecution and defense in preparation for a trial; and 3. Viewing for purposes of administrative reviews and official administrative proceedings. Recordings shall otherwise be considered as confidential records; and (f) The videotape or film taken in accordance with this section shall, upon order of the District Court, be destroyed after the later of the 14

15 following: [A time schedule follows] (g) Public officials or employees utilizing or showing recordings other than as permitted in this chapter or permitting others to do so shall be guilty of official misconduct in the first degree [Class A Misdemeanor]. (3) When a peace officer makes a videotape or film recording of any transaction covered by subsection (2) of this section and a citation is issued or an arrest is made the peace officer shall note on the uniform citation that a videotape has been made of the transaction. e. Physical evidence And, of course, you should be looking for physical evidence of DUI: for example--alcohol beverage containers, drugs, and drug paraphernalia. B. PERSON IN STOPPED VEHICLE BECOMES SUSPECT In this situation, the officer does not suspect DUI until after he has approached a stopped motor vehicle. C. OFFICER ENCOUNTERS VEHICLE ALREADY STOPPED 1. Vehicle in accident When you arrive at the scene of a traffic accident, you should look for evidence of DUI. 2. Parked vehicle If you encounter a person in or near a parked vehicle, and you have reason to believe he is under the influence, you should consider the possibility of a DUI charge. Remember, to have a DUI charge, you must have probable cause to believe the person operated, or was in physical control of (with intent to operate), the motor vehicle while he was under the influence. Remember the Wells and Harris cases where DUI convictions were reversed. 15

16 D. OFFICER STOPS VEHICLE FOR OTHER PURPOSE Sometimes you stop a vehicle for one reason or another and then, after approaching the stopped vehicle, you begin to suspect DUI. E. AUTHORITY TO ARREST 1. Committed in officer s presence-- KRS (1)(d) (1) A peace officer may make an arrest: * * * * * (d) Without a warrant when a misdemeanor, as defined in KRS , has been committed in his presence; or 2. Not committed in officer's presence--krs (1)(e) (e)... [A] violation of KRS 189A.010 or KRS 281A.210 need not be committed in his presence in order to make an arrest without a warrant if the officer has probable cause to believe that the person has violated KRS 189A.010 or KRS 281A.210. F. AFTER ARREST TRANSPORTING (TO THE BREATH TESTING FACILITY) -- CONVERSATION WITH THE ARRESTEE You may tape any conversation of which you are a part as you obviously have the permission of one of the parties--yourself. If you tape a conversation that you are not a party to, the information may be admissible-- the person may not be able to show a Reasonable Expectation of Privacy in the back seat of a cruiser. A general conversation with the arrestee can be interpreted as interrogation, particularly if it gets into matters important to the specific charge. If the arrestee hasn't been given Miranda warnings and waived his rights, you should confine yourself to simple answers to any questions the arrestee may have. IV. PENALTIES FOR DUI 16

17 A. DUI INVOLVING A MOTOR VEHICLE 1. Fine, imprisonment, community labor KRS 189A.010(5) (5) Any person who violates the provisions of paragraphs (a), (b), (c), or (d) of subsection (1) of this section shall: a. 1 st Offense subsection (5)(a) Fine and/or Jail* or Comm. Svc. 1st $ h - 30 d 48 h - 30 d * If aggravating circumstances exist minimum jail time is doubled and none of minimum time can be suspended or probated. (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 fortyeight (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. 2 nd Offense subsection (5)(b) 17

18 Fine and Jail* and Comm. Svc. 2nd $ d - 6 m 10 d - 6 m * If aggravating circumstances exist minimum jail time is doubled and none of minimum time can be suspended or probated. (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. 3 rd Offense subsectionv(5)(c) Fine and Jail* and Comm. Svc. 3rd $ d - 12 m 10 d - 12 m * If aggravating circumstances exist minimum jail time is doubled and none of minimum time can be suspended or probated. (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 ($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 18

19 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. 4 th and subsequent Offense subsection (5)(d Fine Jail* Comm. Svc. 4th+ Class D Felony (min. 120 days) * If aggravating circumstances exist minimum jail time is doubled and none of minimum time can be suspended or probated. (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. Computing prior offenses subsection (5)(e) (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 19

20 (1)(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 f. Aggravating Circumstances - KRS 189A.010(11) (11)For purposes of this section, aggravating circumstances are any one (1) or more of the following: Operating over 30 mph over limit. (a) Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit; Operating wrong way on limited access highway (b) Operating a motor vehicle in the wrong direction on a limited access highway; Causing accident resulting in death or serious physical injury (c) Operating a motor vehicle that causes an accident resulting in death or serious physical injury as defined in KRS ; Having alcohol level.18 or higher (d) 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; Refusing to take any implied consent test (e) Refusing to submit to any test or tests of one's blood, breath, or urine requested by an officer having 20

21 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 Transporting passenger under 12 yoa 2. License suspension -- (f) Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old. a. Pretrial KRS 189A.200 (1) The court shall at the arraignment or as soon as such relevant information becomes available suspend the motor vehicle operator's license and motorcycle operator's license and driving privileges of any person charged with a violation of KRS 189A.010(1) who: (a) Has refused to take an alcohol concentration or substance test as reflected on the uniform citation form; (b) Has been convicted of one (1) or more prior offenses... or has had his operator's license revoked or suspended on one (1) or more occasions for refusing to take an alcohol concentration or substance test, in the five (5) year period immediately preceding his arrest; or (c) Was involved in an accident that resulted in death or serious physical injury as defined in KRS to a person other than the defendant. * * * * * (3) When the court orders the suspension of a license pursuant to this section, the defendant SHALL immediately surrender the license to the Circuit 21

22 Court clerk, and the court SHALL retain the defendant in court or remand him into the custody of the sheriff until the license is produced and surrendered.... * * * * * b. Upon conviction KRS 189A.070 (1) Eighteen or over subsection (1) (1) Unless the person is under eighteen (18) years of age, in addition to the penalties specified in KRS 189A.010, a person convicted of violation of KRS 189A.010(1)(a), (b), (c), or (d) shall have his license to operate a motor vehicle or motorcycle revoked by the court as follows: 1st Off days (a) For the first offense within a five (5) year period, for a period of not less than thirty (30) days nor more than one hundred twenty (120) days; 2nd Off months (b) For the second offense within a five (5) year period, for a period of not less than twelve (12) months nor more than eighteen (18) months; 3rd Off months (c) For a third offense within a five (5) year period, for a period of not less than twenty-four (24) months nor more than thirty-six (36) months; and 4th+ Off. 60 months 22

23 (d) For a fourth or subsequent offense within a five (5) year period, sixty (60) months. Computation of offenses (e) For purposes of this section, "offense" shall have the same meaning as described in KRS 189A.010(5) (e). (2) Under eighteen subsection (4) Until 18th birthday or above suspension periods, whichever is longer (4) A person under the age of eighteen (18) who is convicted of violation of KRS 189A.010(1)(a), (b), (c), or (d) shall have his license revoked by the court until he reaches the age of eighteen (18) or shall have his license revoked as provided in subsection (1) of this section, whichever penalty will result in the longer period of revocation. DUI INVOLVING A NON-MOTOR VEHICLE 1. Fine KRS (1) Any person who violates any of the provisions of... subsection (1) of KRS shall be fined not less than twenty dollars ($20) nor more than one hundred dollars ($100) for each offense License suspension KR?S (1)(b) (1) The cabinet shall forthwith revoke the license of any operator of a motor vehicle upon receiving record of his 23

24 conviction of any of the following offenses: * * * * * (b) Driving a vehicle which is not a motor vehicle while under the influence of alcohol or any other substance which may impair one's driving ability; (2) If the person convicted of any offense named in subsection (1) of this section is not the holder of a license, the cabinet shall deny the person so convicted a license for the same period of time as though he had possessed a license which had been revoked. If through an inadvertence the defendant should be issued a license, the cabinet shall forthwith cancel it. * * * * (5) Except as provided in subsections (3), (4), and (8) of this section, in all other cases, the revocation or denial of a license or the withdrawal of the privilege of operating a motor vehicle under this section shall be for a period of six (6) months, except that, if the same person has had one (1) previous conviction of any offense enumerated in subsection (1) of this section, regardless of whether the person's license was revoked because of the previous conviction, the period of the revocation, denial, or withdrawal shall be one (1) year; if the person has had more than one (1) previous conviction of the offenses considered collectively as enumerated in subsection (1) of this section, regardless of whether the person's license was revoked for any previous conviction, the period of revocation, denial, or withdrawal shall be for not less than two (2) years. If the cabinet, upon receipt of the written recommendation of the court in which any person has been convicted of 24

25 violating KRS (1) or (5) as relates to instances in which a driver's license or fraudulent driver's license was the identification used or attempted to be used in the commission of the offense, who has had no previous conviction of said offense, the person's operator's license shall not be revoked, but the person's operator's license shall be restricted to any terms and conditions the secretary in his discretion may require, provided the person has enrolled in an alcohol or substance abuse education or treatment program as the cabinet shall require. If the person fails to satisfactorily complete the education or treatment program or violates the restrictions on his operator's license, the cabinet shall immediately revoke his operator's license for a period of six (6) months. * * * * (8) A person under the age of eighteen (18) who is convicted of the offenses of subsections (1) or (3) of this section, except for subsection (1)(h) of this section, shall have his license revoked until he reaches the age of eighteen (18) or shall have his license revoked as provided in this section, whichever penalty will result in the longer period of revocation. C. DUI INVOLVING A COMMERCIAL MOTOR VEHICLE 1. Fine, imprisonment, community labor KRS 281A.2102 In addition to the penalties established by this chapter for driving a commercial motor vehicle under the influence of alcohol: (1) Any person convicted of driving a commercial motor vehicle while the alcohol concentration of the person's blood or breath is four hundredths 25

26 (0.04) to eight hundredths (0.08) shall be fined not less than twenty dollars ($20) and not more than fifty dollars ($50). (2) Any person convicted of driving a commercial motor vehicle while the alcohol concentration of the person's blood or breath is greater than eight hundredths (0.08) shall be fined under the provisions of KRS 189A.010(5)(a) to (d). 2. License Suspension KRS 281A.190(1)-(3) (1) A person shall be disqualified from driving a commercial motor vehicle for a period of one (1) year if convicted of: (a) Driving a commercial motor vehicle under the influence of alcohol or a controlled substance; (b) Driving a commercial motor vehicle while the alcohol concentration of the person's blood or breath or urine is four hundredths (0.04) or more; * * * * * (e) Refusing to submit to testing as required by KRS 281A.220. (2) A person shall be disqualified for life if convicted of two (2) or more violations of any of the offenses specified in subsection (1) of this section or any combination of those offenses, arising from two (2) or more separate incidents..... (3) If any violation specified in subsection (1) of this section occurred while transporting a hazardous material required to be placarded, the person shall be disqualified for a period of three (3) years. D.. Operating While License Suspended for DUI 1. Basic Statute KRS 189A

27 (1) No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.070, KRS 189A.010(6), KRS 189A.107, KRS 189A.200 or KRS 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device. in violation of KRS 189A.345(1). (2) In addition to any other penalty imposed by the court, any person who violates subsection (1) of this section shall: (a) For a first offense within a five (5) year period, be guilty of a Class B misdemeanor and have his license revoked by the court for six (6) months, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a Class A misdemeanor and have his license revoked by the court for a period of one (1) year; (b) For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years; (c) For a third or subsequent offense within a five (5) year period, be guilty of a Class D felony and have his license revoked by the court for two (2) years, unless at the time of the offense the person was also operating or in physical control of a 27

28 motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), or (d), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of five (5) years. 2. Functioning Ignition Zinterlock Device a. Definition Ignition interlock device KRS 189A.005(2) (2) "Ignition interlock device" means a device that connects a motor vehicle ignition system or motorcycle ignition system to a breath alcohol analyzer and prevents a motor vehicle ignition or motorcycle ignition from starting, and from continuing to operate, if a driver's breath alcohol concentration exceeds 0.02, as measured by the device; b. Prohibition against operating without KRS 189A.345(1) (1) No person shall operate a motor vehicle or motorcycle without a functioning ignition interlock device when prohibited to do so under KRS 189A.340(1) or under KRS 189A.410(2). (1) Purpose: To retain license plates KRS 189A.340(1) (1) In lieu of ordering license plate impoundment under KRS 189A.085 of a person convicted of a second or subsequent violation of KRS 189A.010, the court may order installation of an ignition interlock device as provided in this section as follows: (a) Except as provided in paragraph (d) of this subsection, at the time that the court revokes a person's license under any provision of KRS 28

29 189A.070 other than KRS 189A.070(1)(a), the court shall also order that, at the conclusion of the license revocation, the person shall be prohibited from operating any motor vehicle or motorcycle without a functioning ignition interlock device. * * * * (2) Purpose: To obtain hardship license KRS 189A.410 (2) (2) Whenever the court grants a person hardship driving privileges under subsection (1) of this section, the court through court order, may: (a) Prohibit the person from operating any motor vehicle or motorcycle without a functioning ignition interlock device; (b) Require that the person comply with all of the requirements of KRS 189A.340, except for the requirements found in KRS 189A.340(1); and (c) Require the person to install an ignition interlock device on every vehicle owned or leased by the person who is permitted to operate a motor vehicle under this section. (3) Purpose: To shorten period of revocation KRS 189A.0704)( (4) After one (1) year of the period of revocation provided for in subsection (2)(b) or (c) of this section has elapsed, a person whose license has been revoked pursuant to either of those subsections may move the court to have an ignition interlock device installed for the remaining portion of the period of revocation. The court may, upon a written finding in the record for good cause shown, order an 29

30 ignition interlock device installed if the following conditions are satisfied: (a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2); (b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and (c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the period of revocation required for the person under subsection (2)(b) or (c) of this section. 30

31 Legal bibliography 1. Kentucky Revised Statutes, West Publishing Co, Kentucky Decisions, West Publishing Co. 3. Opinions of the Attorney General of Kentucky, Banks-Baldwin Publishing Co. 4. Kentucky Administrative Regulations. 31