DUI FAQ: Answers to Common Questions About Driving Under the Influence in Kentucky
Prosecutions for driving under the influence (DUI) in Kentucky are governed by KRS 189A.010, which makes it illegal to “operate or be in physical control of a motor vehicle” anywhere in the state while under the influence of alcohol, drugs, or other substances that impair driving ability. As with any law, some parts of KRS 189A.010 are black and white and easy to understand while some parts appear gray and unclear. Here are answers to frequently asked questions about Kentucky’s DUI laws. Contact Hesterberg Law Firm for assistance sorting through your DUI charge and fighting back against it.
What is considered “under the influence?”
There is no established definition of “under the influence” in Kentucky as it pertains to operating a motor vehicle. Basically, “under the influence” means whatever a juror conceptualizes it to mean. The Kentucky Supreme Court has ruled that no instruction can be given to the jury to define “under the influence.”
However, lawyers are allowed to ask individual jurors how they define “under the influence” during jury selection. That is why it is important to be represented by an attorney who is skillful at drawing out answers from potential jurors. Many defense attorneys will strike a potential juror who believes that any alcohol consumption, even the tiniest drink, can cause the drinker to become “under the influence.”
Can I get a DUI while parked or asleep in the car?
Yes, it is possible to be charged with DUI if the vehicle is stationary or parked, but an experienced attorney might be able to get the case dismissed by challenging whether there was actual operation or physical control of the vehicle. See the answer above for more details.
Can I get DUI on a private road in Kentucky?
Yes, you can be charged with DUI on any road in Kentucky, even if the road is not public. Kentucky’s DUI laws apply to any road “anywhere in this state.”
Can I get a DUI on a golf cart? An ATV? A moped? A tractor?
Yes, you can be charged with a DUI while operating any vehicle with a motor. Kentucky courts have held that golf carts, ATVs, mopeds, and tractors are all “motor vehicles” for purposes of DUI prosecution.
Can I get a DUI on a boat in Kentucky?
Yes, you can be charged for operating a boat or watercraft while under the influence. KRS 235.240(2) says: “A person shall not operate any motorboat or vessel, or manipulate any water skis, surfboard, or similar device, while intoxicated or under the influence of any other substance which impairs one’s driving ability.”
Is a DUI a felony in Kentucky?
No, DUI is not a felony in Kentucky unless it is the defendant’s fourth DUI offense within 10 years. DUI First Offense, Dui Second Offense, and DUI Third Offense are all misdemeanors. If someone is charged with a DUI and they have three previous DUI convictions in the last decade, a grand jury could indict them for felony DUI Fourth.
What is the DUI “legal limit” in Kentucky? Can I get a DUI even if my blood alcohol concentration is below the legal limit?
A Kentucky driver with a blood-alcohol concentration of .08 or greater is guilty of “per se” DUI, meaning a conviction is highly likely unless the test result is suppressed because of an evidentiary issue. Subsection (1)(A) of KRS 189A.010 makes it illegal to drive while 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[.]”
Even if the test shows a blood-alcohol concentration of less than .08, you can still be prosecuted for DUI under a different subsection of the DUI law. In fact, KRS 189A.010 allows six ways to prosecute a DUI:
- 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;
- While under the influence of alcohol;
- While under the influence of any other substance or combination of substances which impairs one’s driving ability;
- 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;
- While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
- 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).
How much does a DUI cost in Kentucky?
If convicted of a DUI, you should expect to pay at least several hundred dollars in service fees, fines, and court costs, but the overall amount you spend as a result of a DUI could be significantly higher depending on a number of factors.
KRS 189A.050 requires anyone convicted of DUI to pay a $425 service fee. In addition to the service fee, there will also be fines and court costs. The fine range for DUI First is $200 to $500. The fine range for DUI Second is $350 to $500. The fine range for DUI Third is $500 to $1,000. The fine range for DUI Fourth or higher is $1,000 to $10,000. These costs do not include the retainer fee a private attorney will charge for representation or the fees for mandatory Alcohol & Drug Education classes. Other potential costs include tow truck bill, increased insurance rates, and licensing fees.
Defendants can receive credit toward their fines and court costs for every day spent in jail prior to sentencing. If a defendant receives jail time as part of his sentence on DUI First, there may not be a fine but there will still be a service fee.
Hesterberg Law Firm can tailor representation to your specific needs and potentially help you save money on costs typically associated with DUI.
Is jail time mandatory for DUI?
Jail time is only mandatory for DUI in Kentucky if it is at least the second offense within a 10-year period, unless an aggravator is present. See next section for further details.
What are the penalties for DUI in Kentucky?
A DUI conviction in Kentucky will lead to possible jail time, license suspension, and alcohol driver education classes, plus fines and court costs. DUI convictions up to 10 years old can be used to enhance DUI penalties.
For the first DUI offense within a 10-year period, the penalties are: Two to 30 days in county jail or a fine of $200-500, license suspension for six months, 90 days of Alcohol & Drug Treatment (ADE) classes, and service fee and court costs. If aggravating circumstances are present, the mandatory minimum jail sentence is four days.
The penalties for DUI Second are: Seven days to six months in county jail, fine of $350 to $500, license suspension for 18 months, one year of ADE classes, and service fee and court costs. If aggravating circumstances are present, the mandatory minimum jail sentence is 14 days.
The penalties for DUI Third are: 30 days to twelve months in county jail, fine of $500 to $1,000, license suspension for 36 months, one year of ADE classes, and service fee and court costs. If aggravating circumstances are present, the mandatory minimum jail sentence is 60 days.
DUI Fourth Offense is a Class D felony. Class D felonies are punishable by one to five years in prison. The minimum jail sentence for a DUI Fourth in Kentucky is 120 days. The other penalties for DUI Fourth are: Fine of $1,000 to $5,000, license suspension for 60 months, one year of ADE classes, and service fee and court costs. If aggravating circumstances are present, the mandatory minimum jail sentence is 240 days.
If certain aggravating circumstances – or “aggravators” – are present, the mandatory minimum penalties for each DUI offense can be enhanced. Here is the list of aggravators:
- Driving in excess of 30 miles per hour above the speed limit;
- Driving in the wrong direction on a limited access highway;
- Causing an accident resulting in death or serious physical injury;
- Driving while the alcohol concentration in the driver’s blood or breath is 0.15 or higher;
- Refusing to submit to a breath or urine test requested by an officer having reasonable grounds to believe the driver was operating or in physical control of a motor vehicle while under the influence, except for DUI First Offense (Note: Refusing a blood test used to be an aggravator, but under the recent McCarthy decision from the Kentucky Supreme Court, prosecutors are not supposed to be able to use blood test refusal as an aggravator); and
- Driving while transporting a passenger under the age of 12.
What happens if I get a DUI in Kentucky and I am under 21?
DUIs for defendants under 21, also known as “kiddie DUI,” are governed by KRS 189A.010(1)(f), which establishes the legal limit of blood-alcohol concentration at .02, much lower than the .08 limit for drivers over 21.
Punishments are less harsh for DUI drivers under 21. They are not subject to many of the typical penalties of older drivers, but a conviction can result in a fine of $100 to $500 or community service, ADE classes, and license suspension. If the driver is under 18, they could lose their license until they turn 18. If the driver under 21 has an alcohol concentration of .08 or greater, they are subject to all the typical penalties, including jail time, faced by older DUI drivers.
How likely is jail time for DUI First Offense?
While jail time is not mandatory for DUI First Offense (unless there are aggravating factors), it is up to the prosecutor whether to extend a “minimums” offer that includes no additional jail time.
How long will I lose my license for a DUI in Kentucky?
For DUI First Offense, the license suspension period is four to six months. For DUI Second Offense, the license suspension period is 12 to 18 months. For DUI Third Offense, the license suspension period is 18 to 36 months. For DUI Fourth Offense, the license suspension period is 30 to 60 months. The Kentucky Transportation Cabinet oversees license suspensions.
If you qualify for an Ignition Interlock Device and follow all the device requirements, the license suspension can be reduced by the Cabinet to the lower part of the suspension range. For example, if you are convicted of DUI first and receive a six-month license suspension, but then you get an Ignition Interlock Device installed in your car and satisfy all the device’s conditions, you are eligible to get your license back in four months instead of the full six month.
How do I get an Ignition Interlock Device installed on my vehicle?
If you are convicted of a DUI involving alcohol, you should be eligible to apply for an Ignition Interlock Device. The device measures breath-alcohol content before a vehicle can be started, ensuring the driver is sober before operating the vehicle.
Applications are made through the Kentucky Ignition Interlock Program (KIIP). An experienced attorney can help you navigate the application process. More information is available at: https://drive.ky.gov/driver-licensing/Pages/Ignition-Interlock-Program.aspx
How long does a DUI stay on my record? Can a DUI be expunged from my record?
In Kentucky, a DUI must remain on a defendant’s criminal record for 10 years before it is eligible to be expunged. DUI Fourth offenses are not eligible to be expunged. Contact Hesterberg Law Firm for helping expunging your DUI charge from your record.
I am charged with DUI. Which court do I go to?
You should receive documents from either the court or the jail instructing you where to go and the date and time of your next court appearance. Since DUIs are misdemeanors (except for DUI Fourth, which is a felony), they are prosecuted in District Court. So, you will need to appear in the District Court of the county where you are charged with DUI. If you are charged with felony DUI Fourth, you will need to appear in the Circuit Court of the county where you are charged.
Who will be the prosecutor in my DUI case?
Since District Court has jurisdiction over most DUIs, either the County Attorney or one of their assistants will prosecute the case on behalf of the Commonwealth of Kentucky. They will be referred to as “the Commonwealth” in court and in legal documents. Since DUI Fourth is a felony, those cases are prosecuted by the Commonwealth’s Attorney’s Office in circuit court. Each county elects a County Attorney, and each judicial district elects a Commonwealth’s Attorney, so the prosecutors will vary from jurisdiction to jurisdiction.
Where are DUI checkpoints/roadblocks usually located?
There are certain spots in every county where police like to set up traffic roadblocks. Police are supposed to follow several guidelines when setting up a traffic safety checkpoints or roadblocks. These guidelines include, but are not limited to, advertising the roadblock in the media and marking the area with lights or signs to give drivers advance notice. Roadblocks that do not follow the proper guidelines may violate a defendant’s Fourth Amendment rights and lead to any evidence gathered from the roadblock being suppressed. At Hesterberg Law Firm, we have experience challenging the constitutionality of police roadblocks.
Here is a list of common KSP checkpoints in Eastern Kentucky:
Post 8: https://kentuckystatepolice.org/post8checkpoints/
Post 9: http://kentuckystatepolice.org/post9checkpoints/
Post 10: http://kentuckystatepolice.org/post10checkpoints/
Post 11: http://kentuckystatepolice.org/post11checkpoints/
Can DUI be dismissed or reduced?
Depending on the facts of the case, an experienced attorney may be able to successfully argue for a reduction or outright dismissal of a DUI charge. Contact Hesterberg Law Firm for a free consultation.
Will DUI affect my car insurance rates?
Yes, it is very likely a DUI conviction will cause automobile insurance rates to increase. While it is impossible to predict exactly how high your rate will jump, a reasonable estimate for a first DUI is 60 percent, or about $1,000 per year, with additional DUIs causing insurance to become even more expensive.
What happens if I drive while my license is suspended?
Anyone caught driving while their license is suspended for a DUI will face penalties that could include jail time and additional license suspension time.
The first offense within a 10-year period is a Class B Misdemeanor – which carries up to 90 days in jail and up to a $250 fine – and causes an additional six months of license suspension time. The second offense is a Class A Misdemeanor – which carries up to 12 months in jail and up to a $500 fine – and causes one additional year of license suspension time. The third offense or greater is a Class D felony – which caries one to five years in prison – and causes two additional years of license suspension time. All these penalties can be enhanced if you are caught driving on a DUI-suspended license at the same time you are driving under the influence.
You may still be eligible to apply for an Ignition Interlock Device to get back on the road, even if you receive additional suspension for driving on a suspended license. Contact Hesterberg Law Firm for help with this process.
Are there ways I can legally still drive while my license is suspended for DUI?
Yes, there are a couple ways to still legally drive even while you are serving a license suspension due to a DUI conviction.
One way is by getting an Ignition Interlock Device installed in your vehicle. Applications are made through the Kentucky Ignition Interlock Program (KIIP). More information is available at: https://drive.ky.gov/driver-licensing/Pages/Ignition-Interlock-Program.aspx
Another way is by asking the court to grant a hardship license. A hardship license allows the holder to commute only to: employment, school or an educational institution, necessary medical care, driver improvement, alcohol, or substance abuse education programs, and court-ordered counseling or other programs. You must serve an initial “hard time” suspension period before applying for a hardship license, and the length of this varies depending on level of offense.
Contact Hesterberg Law Firm for help securing an Ignition Interlock License or a hardship license.
How can a lawyer help with my DUI? Is it worth hiring a lawyer for DUI?
A lawyer can advocate on your behalf in several ways, including reduction or dismissal of the charges, suppression of evidence, and, if necessary, defending you at trial. A lawyer is trained to notice certain things in arrest citations and police testimony that could be key to winning your case. A lawyer can also help you navigate the intimidating process of going to court and filing documents for your DUI defense. Hesterberg Law Firm is ready to help you fight your DUI charge.
What are the odds of winning my DUI case?
The winnability of a DUI trial hinges on the facts and circumstances of each individual case. Sometimes the case can be dismissed before trial if the police made a procedural violation that leads to evidence being thrown out by the judge.
At trial, the arresting officer(s) typically testify about their observations of the defendant, any erratic driving by the defendant, how the defendant performed on field sobriety procedures, statements made by the defendant, and other relevant information. The prosecutor may also offer into evidence the results of any blood, breath, or urine test taken by the defendant at the time in question. A recent Kentucky Supreme Court decision known as McCarthy prevents the prosecutor from telling the jury the defendant refused a blood test, however the prosecutor can still use a defendant’s refusal of a urine or breath test against them.
A test result that shows blood-alcohol content higher than the legal limit (.08) can make the case more difficult to win. Generally, it is easier for an attorney to explain to the jury the defendant’s refusal to comply with testing than it is a damaging test result. While the prosecutor will point out any missteps the defendant committed during field sobriety procedures, a defense attorney can highlight tasks the defendant performed correctly that show he was not necessarily driving under the influence.
Another key factor in winning a DUI case is establishing trust and rapport with the jury early in the trial, especially during jury selection. Attorneys who have practiced DUI defense for a long time will tell you that voir dire (AKA jury selection) is vital to winning a DUI case.
When hiring an attorney to defend your DUI, you need someone who can connect with jurors, effectively cross-examine the prosecution’s witnesses, find and submit evidence in your defense, and someone who has actually taken a DUI to trial and WON. At Hesterberg Law Firm, we fit that description. Contact us to see how we can help win your DUI case.