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Elements of DUI in Kentucky

The elements of DUI in Kentucky are (1) having a BAC of 0.08 or more and (2) operating or being in physical control of a motor vehicle. BAC is the blood alcohol concentration which is defined as the grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. BAC is determined by use of a chemical test. Such chemical tests may include breath, blood or urine. These tests may be given at the time of the vehicle stop and/or at an approved location after an arrest has occurred. The chemical test must be administered within two hours of the cessation of operating or being in physical control of a motor vehicle. If the BAC is taken more than two hours after the stop the BAC reading is not admissible.

Operating or being in physical control does not have a precise definition; however, the courts have come up with several factors which help determine when one is in actual control of a motor vehicle. These factors include: (1) whether the person in the vehicle is awake or asleep, (2) Whether the vehicle was running, (3) the location of the vehicle and the totality of the circumstances concerning how the vehicle arrived at that location, and (4) the intent of the person sitting in the driver’s seat of the vehicle. Taken together the third and fourth factors listed are important because the courts recognize that a sleeping person cannot be in control of a nonmoving vehicle. Although it can be said that a vehicle found in a ditch on the side of the road with the engine cut off it is likely that the person in the driver’s seat had been driving the vehicle whether sleeping at that time or not.

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