Thursday, July 19, 2012

DUI 4 is a Felony in Kentucky. That's Kind Of A Big Deal.

This is the end of the road for our DUI punishment range analysis.

I know.  We've had some good times.  But everything comes to an end.  It's not you.  It's me.  I can't find any more law on greater punishments for DUI crimes.

We'll still be friends.  I promise.  And we'll keep in touch.  I'll keep writing blog posts on different subjects.

So far we have gone through the possible punishments for DUI 1st, 2nd, and 3rd.  Today, we’ll be talking about the most serious DUI charge you can face in Kentucky, the DUI 4th offense within a 5 year period.

You might recall that we refer to DUI as an “enhanceable offense” in Kentucky.  Basically, that just means that, within 5 years, the punishment for a second or subsequent offense is worse than the previous punishment or punishments.  A DUI 2nd is worse than a 1st, a 3rd is worse than a 2nd, and the 4th within 5 years is as bad as they come.  If you still have any questions or concerns about the punishments associated with DUI 1st, 2nd, or 3rd, please feel free to go back over the past couple of blog posts, or call me if you would like a “real-time” answer.

[All of this talk about punishment is certainly not meant to lead you to believe that EVERYONE who is charged with a DUI is punished.  There are a lot of ways to fight DUI charges, and if you have a decent Louisville DUI lawyer, they may even be able to get the charge completely dismissed.  If you are charged with a DUI, call a lawyer.  For example, me.]

If you plead guilty, or are found guilty, of a DUI 4th in Kentucky, here’s what you can expect, pursuant to KRS 189A.010:

For a fourth or subsequent offense within a five (5) 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[.]

In addition to the above, if you plead guilty to a DUI 4th in Kentucky, any decent Louisville DUI lawyer will tell you that you are facing a DUI service fee, a license suspension of 5 full years, and alcohol/drug education classes.

Yes, a DUI 4th in Kentucky is a felony.  A Class D felony in Kentucky carries a penalty range of 1-5 years in prison.  But most Class D felonies in Kentucky don’t have a mandatory minimum jail service – and typically a first time felon can ask for probation (or better).  However, DUI 4th requires a mandatory minimum120 days in jail (you might be thinking “I didn’t read that in the statute above!” and you would be right, but the 120 day mandatory minimum is enumerated in subsection (8) to KRS 189A.010.  I’m not sure why they didn’t just put in the above section.) and this 120 day sentence cannot be probated.

Notice that the mandatory minimum jail time is doubled to 240 days of incarceration if an “aggravating circumstance” is present.  To put that in perspective, at the class D felony level, a felony “year” equals a serve out time of 5 months and 27 days.  That means that an aggravated DUI 4th carries a mandatory minimum of the equivalent to nearly a felony year and half. 

So what does it mean when lawyers say someone is charged with an “Aggravated DUI” or a “DUI with an aggravator?”  The list of aggravating circumstances includes:

1) Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;
2) Operating a motor vehicle in the wrong direction on a limited access highway;
3) Operating a motor vehicle that causes an accident resulting in death or serious physical injury as defined in KRS 500.080;
4) 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 blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;
5) Refusing to submit to any test or tests of one's blood, breath, or urine 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; and
6) Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.

A refusal under subsection (5) is NOT an aggravator for a DUI 1st, but it IS an aggravator for a DUI 2nd, 3rd, or 4th.  The explanation for this is extremely complicated, but trust me – that’s the truth.

There is no such thing as a “double aggravator.”  No matter how many aggravating circumstances are present, as long as there is at least one aggravator, the person pleading guilty to a DUI 4th would serve a mandatory minimum 240 days. 

However, a jury could give a person convicted of a DUI 4th substantially more time in prison.  Again, it carries a penalty range of 1-5 years because the offense is a Class D felony.  Which also means, as a convicted felon, the perpetrator would lose the right to vote, hold public office, and gun rights (plus a slew of other ramifications depending on the circumstances – like deportation, etc.).

That about does it for our discussion of the punishments associated with the “enhanceable offence” of DUI.

If you have been charged with a DUI 4th Offense in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, you should know that you are charged with an extremely serious crime.  You should call 502.618.4949 and speak with Greg Simms, a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

Simms & Reed, PLLC.  Results.  As fast as the law will allow.

Questions answered in this blog post:  What is the penalty for DUI 4th; how much jail time can I get for a DUI 4th; what is an enhanceable offense; what is the difference between a DUI 3rd and DUI 4th; where can I find a good DUI lawyer Louisville Ky; where can I find a good DUI lawyer Elizabethtown, Ky; is DUI 4 a felony?

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