KRS 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 prohibit ed -- Admissibility of alcohol concentration or

controlled substance test results -- Presumptions -- Penalties -- Aggravating

circumstances.

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in

this Commonwealth:

(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):

(a) If the sample of the person's blood or breath that is used to determine the

alcohol concentration ther eof 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; or

(b) If the sample of the person's blood that is used to determine the presence of a

controlled substance 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)(d) of

this section. The results of the test or tests, however, may be admissible in a

prosecution under subsection (1)(c) 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 or her blood

or breath shall give rise to the following presumptions:

(a) If there was an alcohol concentration of less than 0.04, it shall be presumed

that the defendant was not under the influence of alcohol; and

(b) If there was an alcohol concentration of 0.04 or greater but less than 0.08, 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.

This subsection shall not be construed as limiting the introduction of any other

competent evidence bearing upon the questions of whether the defendant was un der

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 inadmissib le 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 pro fessional practice. However, a laboratory test for a

controlled substance may be admissible as evidence in a prosecution under

subsection (1)(c) or (e) of this section.

(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 ten (10) 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 ten (10) 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) mon ths. 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 ten (10) 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 thirty (30) 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 ten (10) 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 Commonwealth, and any other state or jurisdiction, for operating or bei ng

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 o f subsection (1)(f) of this section 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) and

KRS 189A.070.

(7) If the person is under the age of t wenty-one (21) and there was an alcohol

concentration of 0.08 or greater, the person shall be subject to the penalties

established pursuant to subsection (5) of this section.

(8) (a) For a second or third offense within a ten (10) 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.

(b) For a fourth or subsequent offense under this section, the minimum term of

imprisonment shall be one hundr ed twenty (120) days, and this term shall not

be suspended, probated, or subject to conditional discharge or other form of

early release.

(c) 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 ten (10) 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 ac cident 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 blo od or breath taken within two (2) hours of cessation of

operation of the motor vehicle;

(e) Refusing to submit to any test of one's breath 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, except it shall

not be considered an aggravating circumstance for a first offense under

subsection (5)(a) of this section; and

(f) Operating a motor vehicle that is transporting a passenger under t he 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) Clonazepam;

(h) Cocaine;

(i) Cyclobenzaprine;

(j) Diazepam;

(k) Fentanyl;

(l) Hydrocodone;

(m) Meprobamate;

(n) Methadone;

(o) Methamphetamine;

(p) Oxycodone;

(q) Promethazine;

(r) Propoxyphene; and

(s) Zolpidem.