KRS § 189A.010 — KY Code / Title XVI / Chapter 189A / Section 189A.010
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 or controlled substance test results -- Presumptions -- Penalties -- Aggravating circumstances
Status: in_force

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 or

controlled substance 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) 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):

(a) 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; or

(b) If the sample of the person's blood that is used to determine the presence of a

controlled substance 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)(d) of

this section. The results of the test or tests, however, may be admissible in a

prosecution under subsection (1)(c) or (e) of this section.

(3) 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 0.04 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 0.04 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) 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. However, a laboratory test for a

controlled substance may be admissible as evidence in a prosecution under

subsection (1)(c) or (e) of this section.

(5) 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 ten (10) 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 ten (10) 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 ten (10) 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 thirty (30) 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 ten (10) 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 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) and

KRS 189A.070.

(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 ten (10) 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 ten (10) 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, except it shall not be considered an aggravating

circumstance for a first offense under subsection (5)(a) 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.