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Frequently Asked Questions about DUI in Kentucky

When you can be arrested for DUI?

An arrest cannot be made in a DUI case unless the arresting officer has witnessed the crime. This means that an off duty officer cannot call in a suspected DUI and have another officer make the arrest or the stop, unless the arresting officer personally witnessed erratic driving or any other traffic violation. If the arresting officer has not witnessed the crime the chemical test results will become irrelevant because the initial stop was unlawful.

Once the officer has made a lawful vehicle stop there must be more indicators in order to establish probable cause. Probable cause is a reasonable belief that a crime has been or is about to be committed. If a driver is stopped for rolling through a stop sign, but the driver does not have slurred speech, or bloodshot eyes or any other signs of intoxication the officer will not have probable cause to make an arrest. However, if the officer makes the stop because the driver has a busted taillight and there are empty beer bottles in the backseat and the driver is exhibiting erratic behavior the officer will have probable cause for an arrest. The reason for the stop does not have to be directly related to the arrest. The officer merely has to have reasonable suspicion to make a stop and then probable cause to make the arrest.

The final thing needed for a lawful DUI arrest is an arrest warrant. The arresting officer may take the driver into custody without making an arrest. While the driver is in custody the officer must give a sworn statement setting out why there is probable cause for an arrest to a judge or magistrate. When issued, the arrest warrant identifies the crime(s) committed, the individual(s) suspected of crime(s), states the location where the individual was found, and gives the officer permission to arrest the individual(s) named in the warrant.

What evidence can/cannot be admitted in the DUI case in this state?

When one is stopped for suspected DUI the officer will request that the driver participate in a field sobriety test. The results of these sobriety tests will not be admissible at trial as evidence of the defendant’s guilt or innocence. However, the results may be used to prove that the arrest was warranted if it is challenged. If the officer has probable cause for an arrest a chemical test will be required at then police department. The results of these tests may be admissible in court. When the results of the test reveal a BAC is between 0.01 and 0.049 there shall be a rebuttable presumption that the defendant was not under the influence of alcohol. Because this presumption is rebuttable the state may argue otherwise and the jury or the judge may still find the defendant guilty of DUI.

If the chemical test shows a BAC between 0.05 and 0.079 there shall be a presumption that the defendant was not under the influence, but the test results shall still be admissible at trial as evidence against the defendant. And when the BAC is found to be 0.08 or greater the defendant is assumed to have been under the influence. However, as stated before all of these presumptions are rebuttable and therefore both sides will be giving evidence to refute the presumptions not in his/her favor.

Can a DUI be expunged in the state? If so, how/what is the process?

DUIs can be expunged in Kentucky, but only misdemeanor DUIs and only under certain circumstances. The certain conditions are that: the person has no previous felony convictions, the person has no other misdemeanors within the last five years which have been sought for expungement, the person has not been convicted of a misdemeanor, felony or violation since the time of the conviction for the misdemeanor which is being sought for expungement, the person is not, at the time, involved in a proceeding for a misdemeanor, felony or violation, and that the offense was one against the state and not another person. While a second or third DUI within five years is still a misdemeanor it may not be expugnable if the prior convictions were also sought for expungement.

How do does a DUI differ when the driver is under 21?

When someone is stopped for suspected DUI and he/she is under the legal drinking age, twenty-one, the legal BAC limit is reduced to 0.02. When one is stopped and found to be underage and have a BAC between 0.02 and 0.07 he/she shall be fined no less than one-hundred dollars and not more than five-hundred dollars or serve twenty hours of community labor. If someone under the age of twenty-one is stopped for suspected DUI and found to have a BAC at or above 0.08 he/she will face all the same penalties as anyone twenty-one years or older.

Do I have the right to talk to an attorney before I give a sample?

Yes. Anyone arrested for DUI must be informed of the implied consent laws in the state prior to the formal request for a blood, breath or urine sample. Immediately preceding the chemical test an offender has the right to a period of no less than ten minutes and not more than fifteen minutes to try to contact and meet with his/her attorney. If, within that allowed time, the offender cannot contact or meet with an attorney the chemical tests shall still be admissible at trial. However, if an offender was informed of his/her right to attempt to contact an attorney or was simply not given the chance any chemical test results or test refusals shall not be admissible in court.

This is unusual, as most states with an implied consent law do not require the chance to meet with an attorney prior to any test covered under the implied consent law. It is also unlawful to refuse a chemical test. This is the reasoning behind why chemical tests may still be taken and admissible even when the offender was unable to reach an attorney.

Do I have to give a blood or urine sample? Do I have to submit to a field sobriety test?

After one has been stopped for suspected DUI or for any traffic violation the officer may request that the driver participate in a field sobriety test. No one is required to perform any of the subtests within a field sobriety test, including the preliminary breath test. And the refusal may not be used as evidence against anyone at trial. If the driver does consent to a field sobriety test, those results will also be inadmissible at trial. However, if the officer has probable cause for an arrest the driver may be taken into custody while an arrest warrant is obtained. Once under arrest the implied consent law requires that one must give a blood or urine sample, whichever is requested by the arresting officer. Although a blood or urine test will usually only be requested if the breath analysis does not reveal any alcohol in the system, but the offender is exhibiting the behaviors of someone under the influence. The results of any chemical test administered under the implied consent statute will be admissible in court and used as evidence to prove one’s guilt or innocence of violating the DUI statute.


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