Refusing a Breath Test in Kentucky

Written by Joe Suhre on February 26, 2015 in DUI Law, DUI Penalties

Refusing a Breath Test in Kentucky

One of the most frightening moments many drivers experience is when they see a police officer’s lights in their rear view mirror. Getting pulled over is at best a hassle, but it can also be stressful and confusing. People are not sure how to deal with the officers and their requests. This only gets worse if the traffic stop occurs after the person has had a drink or two. Most people do not know what their rights are in these situations, but knowing what the officer is and is not allowed to do can be the key to making it through the experience without picking up a DUI charge. One important thing to know is that Kentucky law allows people to refuse to take chemical tests of their blood alcohol content (BAC). However, this refusal comes with serious pros and cons.

Implied Consent Laws

Kentucky law allows drivers to refuse to take chemical tests of their BAC without a warrant. This rule is based in the 4th Amendment to the Constitution, which gives people the right to be protected from unreasonable searches except in limited circumstances. However, the refusal to take a BAC test is not without its consequences.

The Kentucky legislature passed a law known as an “implied consent” law. This law states that anyone with a driver’s license has consented to taking a BAC test at the request of an officer, provided that the officer has “reasonable grounds” to believe that the driver was operating under the influence of alcohol.. The state is allowed to do this in spite of the Fourth Amendment because the law recognizes driving as a privilege rather than a right. Failure to take a BAC test when requested can come with serious penalties. Yet, that does not mean it is not necessarily the right decision to refuse.

The Pros and Cons

The law imposes a variety of penalties for refusing to take a BAC test when requested. The most straightforward penalty is that the state will revoke the person’s driver’s license for some period of time. It is 30 days for a first refusal, one year for a second refusal, and 2 years for a third refusal. Importantly, these penalties are considerably less than the penalties for a DUI, although a refusal to take a BAC test also doubles the mandatory minimum jail sentence that accompanies a DUI.

The more complex issue is what the refusal does to a person’s DUI case. Taking a BAC test and exceeding the legal limit makes it an easier case for the prosecution to convict. However, refusing a BAC test can also be used as evidence of a DUI, though that evidence is not as strong as the evidence provided by a chemical BAC test. In the end, the decision to refuse is largely dependent on a person’s particular level of intoxication, and should be made in consultation with an attorney.

The law allows people a short amount of time to get in touch with a lawyer before taking the test. If you are currently facing a breath test or have taken one and are now being charged with a DUI contact a Lexington DUI defense attorney at Suhre & Associates, LLC today.

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