Kentucky DUI: Refusal to Take a Blood, Breath or Urine Test

In Kentucky, if you get pulled over for a DUI and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Kentucky law requires you to take a blood, breath, or urine test if you are arrested for a DUI. Kentucky’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken within two hours of when you were last driving, and the officer gets to choose which one you take. For a breath test, however, the officer can’t offer you one until he or she has observed you for at least 20 minutes.

You have the right to speak with an attorney before choosing to take a test. The officer should tell you this, but you have only 10 to 15 minutes to reach your lawyer and have that conversation. You also have the right to have additional blood tests if you submit to the officer’s tests. These tests may be taken within a reasonable amount of time later by a medical professional of your choice, but you have to pay for them.

Kentucky law also says that an officer could ask you to take a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. You do not have to take this preliminary test. Refusing it, however, probably won’t work in your favor if the officer has some other reason to think you had been drinking. Based on that other reason, the officer could still arrest you and then you will be required to take a test under the law described in the paragraph above.

You can read Kentucky’s implied consent law in the Kentucky Revised Statutes 189A.103. For more information on your rights before and after the test, and on the preliminary breath test, see Kentucky Revised Statutes 189A.105 and 189A.100.

Refusing to Take the Test

 

1st Offense

2nd Offense

3rd Offense

Refusal to take test

Minimum 30 day license revocation. If convicted of DUI after refusing to take test, jail penalty is doubled.

Minimum 1 year license revocation. If convicted of DUI after refusing to take test, jail penalty is doubled.

Minimum 2 years license revocation. If convicted of DUI after refusing to take test, jail penalty is doubled.

Once you are arrested, the officer must tell you that if you refuse to take a test, your refusal could be used against you in court as evidence to prove that you were driving under the influence, you will lose your license, and you will not be able to get a hardship license. The officer must also explain that if you refuse and are later convicted of a DUI, then your minimum jail sentence will be twice as long as it would have been had you not refused a test. Considering the risk of a double-sentence, it is probably in your best interest to take a test unless you are very drunk. If you take a test and the result show that your BAC is .15 or above (which is almost twice the legal limit of .08), then the same double-sentence applies if you are later convicted of a DUI.

If this is your first refusal, your license will be suspended for 30 days. The suspension could last between a year to a year-and-a-half for your second refusal within five years. The period of suspension is between two to three years for your third refusal. Then it jumps to five years for your fourth. You could ask the court to reduce your sentence for your second, third, or forth refusal, but you would have to install an ignition interlock device in your car.

Information on penalties for refusing to take the test can be found at Kentucky Revised Statutes 189A.105 and 189A.070.

Should You Refuse to Take a Mandatory DUI Test in Kentucky?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI. In Kentucky, the consequences for a DUI include jail time and fines, which are more severe than the license suspension for refusing a chemical test. Still, refusing the test does not guarantee that you won’t be convicted of a DUI – you could be found guilty of that offense even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

(Check out our blood alcohol content chart for an estimate of how many drinks it takes to get to the legal limit.)

Get Help With Your DUI

If you have been arrested on a DUI charge in Kentucky or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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