Friday, July 13, 2012

What is the Punishment for a DUI 1st in Kentucky?

Several people have asked me in the past if Kentucky has a “first DUI dismissal” rule, or something of the sort, where a person gets special leniency because they are charged with a first time DUI.  They have heard this mythical One-DUI-Free Rule from a buddy, or a family member.  And they want to ride that unicorn right out of the courtroom to freedom, sweet freedom.

It’s not true.  There is no such rule, statute, caselaw, or standard operating procedure.  Sorry.  But that doesn’t mean that a good Louisville DUI lawyer can’t help with your case, and possibly get it dismissed.  If you are charged with a DUI, call a lawyer.

Today we’ll talk about the possible punishments associated with DUI (the statute is found in KRS 189A).    Specifically, we’ll talk about DUI 1st, and the idea of an “enhanceable offense.”

DUI is one of the most complicated areas of law.  Hands down, it is the most complicated area of misdemeanor law.  The punishments alone are nothing like other misdemeanor crimes.  For example, Disorderly Conduct in the Second Degree (hereinafter, “DC2”) is a Class B misdemeanor.  It carries a punishment of up to 90 days in jail and/or a fine of up to $250.  There is no mandatory minimum jail time.  Very simple.

Here is the punishment for a DUI, First Offense:

 (a) For the first offense within a five (5) 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[.]

Complicated, huh?  Let’s talk a little bit about some of the language in this statute.

First and foremost, the statute designates a DUI, First Offense to be “the first offense within a five (5) year period[.]”  That means, for every 5 years that pass without a person picking up a DUI charge, that person’s record is etch-a-sketch-style erased.*  It doesn’t matter if you have had 6 DUIs in the past.  If you haven’t had a DUI for 5 years, your new DUI charge will be charged as a DUI, First Offense.

This whole “first, second, third…” offense within 5 years mumbo jumbo means that, in Kentucky, DUI is what we call an “enhanceable offense.”  That means the punishment gets worse every time you get a new DUI charge within that 5 year period.  The second DUI is worse than the first, the third is worse than the second, and the fourth is as bad as they come.  A fourth DUI in Kentucky within a 5 year period is a Class D felony.

You may have noticed that the statute above requires a mandatory minimum 4 days of incarceration if an “aggravating circumstance” is present.  This is what lawyers mean when they 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.

There is no such thing as a “double aggravator.”  If you had a child under the age of 12 in the vehicle at the time of the DUI, you would be facing a mandatory minimum 4 days in jail.  If you have a child under 12 in the car AND you were travelling the wrong way on the highway, you would not be facing a mandatory minimum 8 days in jail. 

In addition to the punishments listed above (the possible jail time, community labor and fine), anyone who pleads guilty to a Kentucky DUI must pay a DUI service fee, face a license suspension of 30 – 120 days, and complete alcohol/drug education classes.

See?  The punishment for a DUI 1st in Kentucky is pretty stiff, and can be extremely complicated.  That’s why it is important to contact a Louisville DUI lawyer as soon as you can after being charged with a DUI.

If you have been charged with a DUI in Louisville, Lexington, Elizabethtown, Frankfort, or the surrounding areas, call 502.618.4949 and speak with a Louisville DUI lawyer at Simms & Reed, PLLC.  The initial consultation is free.

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

*Not to mean that your record is expunged - only that your record is re-set, where the next DUI will be a DUI 1st.  If you need an expungement, you should call a lawyer.

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1 comment:

  1. I'm charge with DUI 1st on a motorcycle and the KSP allowed me to Ride my Harley to another location so I could lock it up, So how is a man DUI and allowed to Ride the motorcycle down the state HWY after being charged & then arrested,.??