Under a .08 Does NOT Always Mean You Are Legal.

You’ve probably heard that in Kentucky, we have a “legal limit” for driving under the influence in Kentucky.  But what you may not know is there are different kinds of DUIs.  Or, at least, there are several different ways DUIs are prosecuted.

If you operate a vehicle in Kentucky (and this means ANYWHERE in Kentucky, not just on the open public roadways), and your BAC is over a .08, you are guilty of DUI.  Specifically, you would be prosecuted under KRS 189A.010(1)(a).  That subsection reads: 

“(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state:  (a) Having an alcohol concentration of 0.08 or more as measured by a scientifically reliable test or tests of a sample of the person's breath or blood taken within two (2) hours of cessation of operation or physical control of a motor vehicle[.]”

This is what is known as the “Per Se rule.”  If the Commonwealth (specifically, it would be a County or Assistant County Attorney if a DUI 1^st, 2^nd or 3^rd) would only have to prove that you were operating a vehicle in Kentucky with that number BAC.  That’s a Per Se prosecution.  But that’s not the only way to get a DUI in Kentucky.

Any Louisville DUI lawyer worth their salt will tell you that the Per Se prosecution is only one of several different types of DUI prosecutions in Kentucky.  The next DUI we’re going to talk about is an “Under the Influence” DUI.

If you have a BAC of UNDER .08, and you are operating a vehicle in Kentucky, it IS still possible for you to get a DUI.  Let’s say, for example, you have a low tolerance for alcohol.  You only have 2 beers.  Your BAC is only a .04, but you are “under the influence of alcohol,” and you operate a vehicle in Kentucky, you are guilty of DUI.

KRS 189A.010(1)(b) provides:

“(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (b) While under the influence of alcohol[.]”

As you can see, a prosecution under subsection (1)(b) doesn’t require the prosecution to prove a number at all.  If they can prove you are under the influence (using evidence of failed Standardized Field Sobriety Tests, and/or bloodshot, watery eyes, and/or the fact that you may be unsteady on your feet, and/or cognitive impairment evidenced by disorientation, and/or slurred speech, etc), you can be found Guilty of DUI.

Keep in mind that when I say “alcohol” and the KRS that we are reading today uses the word “alcohol” you should substitute the words “alcohol, drugs, medications or a combination thereof.”  Because the other sections of the KRS make sure that those things are covered.

The last DUI we’re going to talk about today is the “Strict Liability” DUI.  “Strict Liability” is a term that we use in the legal world for crimes that don’t require a mental state.  We’ve talked about this before, but let me refresh your memory.  Because some of you out there look like you haven’t been paying attention.

A lot of crimes require that you do some act (setting fire to, striking, raping, etc) with a mental state.  You would have to “Intentionally,” “Knowingly,” “Wantonly,” or “Recklessly” do said act.  For example, drug possession culpability is typically reserved for someone who “knowingly” possesses said drug.  If you borrow your degenerate brother’s car, and there’s a kilo of bathroom molly sewn into the passenger seat, but you don’t know about it, you are NOT Guilty of drug possession.

However, as a society we have determined that it would be against public policy to require the prosecution to prove a mental state for certain acts.  Speeding, for example, is a strict liability offense.  If you did it, we don’t care why you did it.  We don’t even care if you know that you were speeding.  We, as a society have decided that we are going to punish you regardless. 

The truth is that NONE of the DUIs we are talking about require a mental state.  So I’m not sure why some lawyers call the list of substances at the end of 189A “Strict Liability” DUIs.  But just for your knowledge, here they are:

(1) A person shall not operate or be in physical control of a motor vehicle anywhere in this state: (d) While the presence of a controlled substance listed in subsection (12) of this section is detected in the blood, as measured by a scientifically reliable test, or tests, taken within two (2) hours of cessation of operation or physical control of a motor vehicle; (12) The substances applicable to a prosecution under subsection (1)(d) of this section are:

(a) Any Schedule I controlled substance except marijuana (don’t get excited, you can still get a marijuana DUI in Kentucky);

(b) Alprazolam;

(c) Amphetamine;

(d) Buprenorphine;

(e) Butalbital;

(f) Carisoprodol;

(g) Cocaine;

(h) Diazepam;

(i) Hydrocodone;

(j) Meprobamate;

(k) Methadone;

(l) Methamphetamine;

(m) Oxycodone;

(n) Promethazine;

(o) Propoxyphene; and

(p) Zolpidem

It is a defense to one of these DUIs if you actually have a prescription for the medication listed AND you have been taking the medication as directed (it helps if the directions didn’t include the statement “do not drive while taking this medication”).

I hope this blog post left you a little more informed about the different types of DUIs.  Most importantly, what I would like for you to take away from this is one simple statement:  “If a person is under a .08, that does NOT mean they are legal to drive in Kentucky.”

So be safe out there.  Take a cab.  City Scoot it.  Or, if you have friends who are willing to refrain, get a designated driver.

Greg Simms

600 West Main Street

Suite 100

Louisville, KY 40202

502.618.4949