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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

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Download pdfLoading PDF...var pdf_url = 'http://law.justia.com/codes/kentucky/2009/189A00/pdf/010.pdf';$(document).ready(function() {var embedwindow = $("#embed_document");if ($.browser.msie){embedwindow.html('');} else {embedwindow.html('');}});189A.010 Operating motor vehicle with alcohol concentration of or above 0.08, or oforabove0.02forpersonsunderagetwenty-one,orwhileunderthe influence of alcohol, a controlled substance, or other substance which impairs driving ability prohibited -- Admissibility of alcohol concentration 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)Havinganalcoholconcentrationof0.08ormoreasmeasuredbya 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)Whileundertheinfluenceofanyothersubstanceorcombinationof 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)Havinganalcoholconcentrationof0.02ormoreasmeasuredbya 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)WiththeexceptionoftheresultsofthetestsadministeredpursuanttoKRS 189A.103(7), if the sample of the person's blood or breath that is used to determine thealcoholconcentrationthereofwasobtainedmorethantwo(2)hoursafter 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. (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 vehiclewhileundertheinfluenceofalcohol,thealcoholconcentrationinthe defendant'sbloodasdeterminedatthetimeofmakinganalysisofhisbloodor breath shall give rise to the following presumptions: (a)Iftherewasanalcoholconcentrationoflessthan0.05baseduponthe definitionofalcoholconcentrationinKRS189A.005,itshallbepresumed that the defendant was not under the influence of alcohol; and (b)Iftherewasanalcoholconcentrationof0.05orgreaterbutlessthan0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shallnotconstituteapresumptionthatthedefendanteitherwasorwasnot under the influence of alcohol, but that fact may be considered, together with othercompetentevidence,indeterminingtheguiltorinnocenceofthe defendant.The provisions of this subsection shall not be construed as limiting the introduction ofanyothercompetentevidencebearinguponthequestionsofwhetherthe 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 chargedwithviolationofsubsection(1)ofthissectionislegallyentitledto use any substance, including alcohol, shall not constitute a defense against any charge of violation of subsection (1) of this section. (b)Alaboratorytestortestsforacontrolledsubstance shall be inadmissible as evidenceinaprosecutionundersubsection(1)(d)ofthissectionupona finding by the court that the defendant consumed the substance under a valid prescriptionfromapractitioner,asdefinedinKRS218A.010,actinginthe course of his or her professional practice. (5)Anypersonwhoviolatestheprovisionsofparagraph(a),(b),(c),(d),or(e)of subsection (1) of this section shall: (a)For the first offense within a five (5) year period, be fined not less than two hundreddollars($200)normorethanfivehundreddollars($500),orbe 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 tothe judge for permission to enter a community labor program for not less thanforty-eight(48)hoursnormorethanthirty(30)daysinlieuoffineor imprisonment,orboth.Ifanyoftheaggravatingcircumstanceslistedin subsection (11) of this section are present while the person was operating or in physicalcontrolofamotorvehicle,themandatoryminimumtermof imprisonmentshallbefour(4)days,whichtermshallnotbesuspended, probated,conditionallydischarged,orsubjecttoanyotherformofearly release; (b)Forthesecondoffensewithinafive(5)yearperiod,befinednotlessthan 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) ofthissectionarepresent,themandatoryminimumtermofimprisonment shallbefourteen(14)days,whichtermshallnotbesuspended,probated, conditionally discharged, or subject to any other form of early release; (c)Forathirdoffensewithinafive(5)yearperiod,befinednotlessthanfive hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall beimprisonedinthecountyjailfornotlessthanthirty(30)daysnormore thantwelve(12)monthsandmay,inadditiontofineandimprisonment,be sentencedtocommunitylabor for notless than ten (10) days nor more than twelve(12)months.Ifanyoftheaggravatingcircumstanceslistedin subsection(11)ofthissectionarepresent,themandatoryminimumtermof imprisonmentshallbesixty(60)days,whichtermshallnotbesuspended, probated,conditionallydischarged,orsubjecttoanyotherformofearly release; (d)For a fourth or subsequent offense within a five (5) year period, be guilty of a ClassDfelony.Ifanyoftheaggravatingcircumstanceslistedinsubsection (11) of this section are present, the mandatory minimum term of imprisonment shallbetwohundredforty(240)days,whichtermshallnotbesuspended, probated,conditionallydischarged,orsubjecttoanyotherformofrelease; 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 ofamotorvehiclewhileundertheinfluenceofalcoholorothersubstances thatimpairone'sdrivingability,oranycombinationofalcoholandsuch substances,orwhilehavinganunlawfulalcoholconcentration,ordriving whileintoxicated,butshallnotincludeconvictionsforviolatingsubsection (1)(f)ofthissection.Acourtshallreceiveasproofofapriorconvictiona copy of that conviction, certified by the court ordering the conviction. (6)Anypersonwhoviolatestheprovisionsofsubsection(1)(f)ofthissectionshall have his driving privilege or operator's license suspended by the court for a period of no less than thirty (30) days but no longer than six (6) months, and the person shallbefinednolessthanonehundreddollars($100)andnomorethanfive hundred dollars ($500), or sentenced to twenty (20) hours of community service in lieuofafine.Apersonsubjecttothepenaltiesofthissubsectionshallnotbe subjecttothepenaltiesestablishedinsubsection(5)ofthissectionoranyother penaltyestablishedpursuanttoKRSChapter189A,exceptthoseestablishedin KRS 189A.040(1). (7)Ifthepersonisundertheageoftwenty-one(21)andtherewasanalcohol 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 five (5) year period, the minimum sentence of imprisonmentorcommunitylaborshallnotbesuspended,probated,or subjectto conditionaldischargeorotherformofearlyrelease.Forafourthorsubsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty(120)days,andthistermshallnotbesuspended,probated,orsubjectto conditionaldischargeorotherformofearlyrelease.Forasecondorsubsequent offense,atleastforty-eight(48)hoursofthemandatorysentenceshallbeserved 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)Indeterminingthefive(5)yearperiodunderthissection,theperiodshallbe 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)Operatingamotorvehicleinexcessofthirty(30)milesperhourabovethe 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)Operatingamotorvehiclewhilethealcoholconcentrationintheoperator's blood or breath is 0.15 or more as measured by a test or tests of a sample of theoperator'sbloodorbreathtakenwithintwo(2)hoursofcessationof operation of the motor vehicle; (e)Refusingtosubmittoanytestortestsofone'sblood,breath,orurine 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; and (f)Operatingamotorvehiclethatistransportingapassengerundertheageof twelve (12) years old. (12)Thesubstancesapplicabletoa 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. Effective:July 15, 2010 History:Amended 2010 Ky. Acts ch. 149, sec. 17, effective July 15, 2010. -- Amended 2002 Ky. Acts ch. 183, sec. 19, effective August 1, 2002. -- Amended 2000 Ky. Acts ch. 467, sec. 2, effective October 1, 2000. -- Amended 1998 Ky. Acts ch. 124, sec. 8, effectiveJuly 15, 1998; and ch. 606, sec. 171, effective July 15, 1998.-- Amended 1996Ky.Actsch. 198,sec. 1,effectiveOctober10,1996.--Amended1991(1st Extra. Sess.) Ky. Acts ch. 15, sec. 2, effective July 1, 1991. -- Created 1984 Ky. Acts ch. 165, sec. 1, effective July 13, 1984.
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    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 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), 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. (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 0.05 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 0.05 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. (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 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 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 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) For a third offense within a five (5) 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 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) 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;
    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 have his driving privilege or operator's license suspended by the court for a period
    of no less than thirty (30) days but no longer than six (6) months, and the person
    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). (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 five (5) 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 five (5) 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; 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. Effective: July 15, 2010 History: Amended 2010 Ky. Acts ch. 149, sec. 17, effective July 15, 2010. -- Amended 2002 Ky. Acts ch. 183, sec. 19, effective August 1, 2002. -- Amended 2000 Ky. Acts
    ch. 467, sec. 2, effective October 1, 2000. -- Amended 1998 Ky. Acts ch. 124, sec. 8,
    effective July 15, 1998; and ch. 606, sec. 171, effective July 15, 1998. -- Amended
    1996 Ky. Acts ch. 198, sec. 1, effective October 10, 1996. -- Amended 1991 (1st
    Extra. Sess.) Ky. Acts ch. 15, sec. 2, effective July 1, 1991. -- Created 1984 Ky. Acts
    ch. 165, sec. 1, effective July 13, 1984.

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