Few people charged with DUI realize that they have statutory rights under Kentucky's implied consent laws, KRS 189A.103 and KRS 189A.105, which can protect them from inappropriate police procedure when the police are attempting to obtain evidence of their impairment.
The arresting police officer must comply with this statute or find himself violating the accused person's statutory rights. According to KRS 189A.105:
At the time a breath, blood, or urine test is requested, the person shall be informed:
1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010 and will result in revocation of his driver's license, and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests, and that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.
KRS 189A.103 states in part that the breath tests, "shall have been performed . . . only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes."
Additionally, the police officer must also provide the accused person with the opportunity to contact an attorney. KRS 189A.105 further states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right.
After the accused person has complied with the police officers requests, then KRS 189A.105 further states:
Immediately following the administration of the final test requested by the officer, the person shall again be informed of his right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.
If the officer failes to follow the procedures set forth under Kentucky's Implied Consent laws, then any results the officer thereafter obtains may be suppressed.
Person's who believe their Kentucky Implied Consent rights have been violated should contact a Kentucky DUI attorney.