Holes in the Kentucky Implied Consent Law

At the heart of Implied Consent is a balancing act.  We need to walk that thin line between making the streets safe and taking dangerous people off the road - and ensuring that people still have a 5th Amendment Right not to incriminate themselves.  It's nice to have rights.  We should care about that.

When someone is arrested for a DUI in Kentucky, an officer will most likely ask them to submit to a blood, breath or urine test.  Before the test is given, the officer should read the Kentucky Implied Consent law to the newly arrested individual.  Specifically, under KRS 189A.105, an officer is required to read a set of three (3) paragraphs about Kentucky law on refusing the test.  The portions we are going to discuss today include:

 “1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010…and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests…and

3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.”

There are a couple of problems with the above language (which is copied verbatim from the Kentucky Implied Consent Statute).  1) Officers are threatening people with jail time for a refusal.  But the truth is that there is no mandatory jail time for a first time refusal.

This is kind of a big deal.  Police are telling people that if they refuse they “will be subject to a mandatory minimum jail sentence” -- and that is simply not the truth.  Refusal is an aggravating circumstance for a DUI 2^nd, 3^rd, or 4^th.  Refusal is not an aggravating circumstance for a First Offense DUI in Kentucky.

When officers read the above Implied Consent Statute, they threaten arrestees with jail time for refusing.  But, if convicted, they would not actually be subject to mandatory minimum jail time.

Do you think this might have the effect of persuading more people to incriminate themselves?

2) Sometimes officers change the words to the Implied Consent Statute.  In my own personal experience defending these cases, sometimes the cop says “your refusal will be used against you in court” instead of “your refusal may be used against you in court.”  The wording change is subtle.  But it makes a world of difference. 

Note that the word change makes the consequence more harsh.

In the actual statute, a jury may infer a refusal as evidence of guilt.  But in the altered version, a jury will, in fact, believe that a refusal makes it more likely that the person is guilty.  Faced with harsher consequences, a person who is on the fence about submitting to a test may submit (even if they have previously been advised by counsel to refuse).

The last problem with the Kentucky Implied Consent Law that we’ll discuss today is 3) the right to an independent blood test is frequently trampled by law enforcement.  The KRS provides that if someone submits to an officer’s test, “the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.”

The first problem with this subsection is that it carves out a statutory “right” but then hinges it on the person’s ability to pay for the test.  Either it’s a right or it isn’t.  And in this country, rights don’t belong to only those who have money.  They belong to everyone.  That’s how rights work.

The second problem is that some police officers don’t make reasonable efforts to provide the arrestee with the right to a blood test.  I’ve heard them say things like “you can get a blood test if you want but we’ll take you to ____hospital___ and you have to have $400.00 in cash” effectively talking the person out of an independent test.  In another case, after being read the Implied Consent, my client said “I don’t know how I would pay for it – my wallet is in my car.”  The officer did nothing.  Obviously, if a police officer wanted to make reasonable efforts to afford this right to the arrestee, they could take the person to their car at police impound and retrieve the wallet.

In short, the problems with the Kentucky Implied Consent law are numerous – both in black and white and in their application through law enforcement.  At this time, the Kentucky Legislature (and courts) are unwilling to do anything about it.  But awareness is the first step.  Hopefully this will provide some awareness.

Have a great week.

Greg Simms – 502.618.4949