KRS 189A.105: Effect of refusal to submit to tests -- Information required to be provided

when tests requested -- Court-ordered testing -- Withdrawal of blood sample --

Right to consult attorney before submitting to tests -- Personal testing option.

(1) A person's refusal to submit to tests under KRS 189A.103 shall result in suspension

of his or her driving privilege as provided in this chapter.

(2) (a) At the time a breathor blood test is requested, the person shall be informed

that:

1. If the person refuses to submit to a breath test:

a. The fact of this refusal may be used against him or her in court as

evidence of violating KRS 189A.010 and will result in suspension

of his or her driver's license by the court at the time of

arraignment; and

b. If th e person is subsequently convicted of violating KRS

189A.010(1):

i. For a second or third time within a ten (10) year period, he or

she will be subject to a mandatory minimum jail sentence

which is twice as long as the mandatory minimum jail

sentence imposed if he or she submits to the tests; and

ii. His or her license will be suspended by the Transportation

Cabinet;

2. If the person refuses to submit to a blood test:

a. The fact of this refusal shall not be used against him or her in court

as evidence of violating KRS 189A.010 but will result in

suspension of his or her driver's license by the court at the time of

arraignment; and

b. If the person is subsequently convicte d of violating KRS

189A.010(1), his or her license will be suspended by the

Transportation Cabinet;

3. If a test is taken:

a. The results of the test may be used against the person in court as

evidence of violating KRS 189A.010(1); and

b. The person has th e right to have a test or tests of his or her blood

performed by a person of his or her choosing described in KRS

189A.103 within a reasonable time of his or her arrest at the

expense of the person arrested; and

4. Although his or her license will be suspe nded, he or she may be eligible

immediately for an ignition interlock license allowing him or her to

drive during the period of suspension and, if he or she is convicted, he or

she will receive a credit toward any other ignition interlock requirement

arising from this arrest.

(b) This subsection shall not be construed to prohibit a judge of a court of

competent jurisdiction from issuing a search warrant or other court order

requiring a blood test of a defendant charged with a violation of KRS

189A.010, or o ther statutory violation arising from the incident. However, if

the incident involves a motor vehicle accident in which there was a fatality,

the investigating peace officer shall seek a search warrant for blood testing

unless the testing has already been done by consent. If testing done pursuant

to a warrant reveals the presence of alcohol or any other substance that

impaired the driving ability of a person who is charged and convicted of a

violation of KRS 189A.010(1), the sentencing court shall require, in addition

to any other sentencing provision, that the defendant make restitution to the

Commonwealth for the cost of the testing.

(c) 1. When directed by a peace officer pursuant to a search warrant or other

court order issued under this subsection, a qualified medical professional

shall withdraw the sample of blood as soon as practicable and shall

deliver the sample to the requesting peace officer, or other peace officer

as directed by the requesting peace officer, if the collection of the

sample does no t jeopardize the person's life, cause serious injury to the

person, or seriously impede the person's medical assessment, care, or

treatment.

2. The qualified medical professional authorized to withdraw the blood

sample and the medical care facility where t he blood sample is drawn

shall be considered as acting in good faith once presented with a search

warrant or other court order issued under this subsection. The qualified

medical professional shall not require the person that is the subject of

the test or tests to provide any additional consent.

3. A qualified medical professional who administers any test under this

paragraph upon the request of a peace officer, and a medical care facility

where any test under this paragraph may be performed, shall not be

criminally liable solely for administering the requested test or civilly

liable for damages to the person tested solely for administering the

requested test except in cases of gross negligence or willful or wanton

misconduct.

(d) If the person is not inform ed of the provisions of paragraph (a) of this

subsection prior to the request for a breath or blood test, the person shall not

have his or her:

1. Refusal to submit to a breath or blood test used:

a. Against him or her in court as evidence of violating KRS

189A.010; or

b. As an aggravating circumstance under KRS 189A.010(11); or

2. License suspended by the court at the time of arraignment.

(3) 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. Inability to communicate with an attorney during

this period shall not be deemed to relieve the person of his or her obligation to

submit to the tests and the penalties specified by KRS 189A.010 and 189A.107

shall remain applicable to the person upon refusal. This section shall not be deemed

to create a right to have an attorney present during the a dministration of the tests,

but the person's attorney may be present if the attorney can physically appear at the

location where the test is to be administered within the time period established in

this section.

(4) Immediately following the administration of the final test requested by the officer,

the person shall again be informed of his or her right to have a test or tests of his or

her blood performed by a person of his or her choosing described in KRS 189A.103

within a reasonable time of his or her ar rest at the expense of the person arrested.

He or she shall then be asked, "Do you want such a test?" The officer shall make

reasonable efforts to provide transportation to the tests.