AN ACT relating to the operation of a motor vehicle.

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AN ACT relating to the operation of a motor vehicle. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
Section 1. KRS 189A.010 is amended to read as follows: 3
(1) A person shall not operate or be in physical control of a motor vehicle anywhere in 4
this Commonwealth[state]: 5
(a) Having an alcohol concentration of 0.08 or more as measu red by a 6
scientifically reliable test or tests of a sample of the person's breath or blood 7
taken within two (2) hours of cessation of operation or physical control of a 8
motor vehicle; 9
(b) While under the influence of alcohol; 10
(c) While under the influence of any other substance or combination of 11
substances which impairs one's driving ability; 12
(d) While the presence of a controlled substance listed in subsection (12) of this 13
section is detected in the blood, as measured by a scientifically reliable test, or 14
tests, taken within two (2) hours of cessation of operation or physical control 15
of a motor vehicle; 16
(e) While under the combined influence of alcohol and any other substance which 17
impairs one's driving ability; or 18
(f) Having an al cohol concentration of 0.02 or more as measured by a 19
scientifically reliable test or tests of a sample of the person's breath or blood 20
taken within two (2) hours of cessation of operation or physical control of a 21
motor vehicle, if the person is under the age of twenty-one (21). 22
(2) With the exception of the results of the tests administered pursuant to KRS 23
189A.103(7): 24
(a) If the sample of the person's blood or breath that is used to determine the 25
alcohol concentration thereof was obtained more than two (2) hours after 26
cessation of operation or physical control of a motor vehicle, the results of the 27
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test or tests shall be inadmissible as evidence in a prosecution under 1
subsection (1)(a) or (f) of this section. The results of the test or tests, however, 2
may b e admissible in a prosecution under subsection (1)(b) or (e) of this 3
section; or 4
(b) If the sample of the person's blood that is used to determine the presence of a 5
controlled substance was obtained more than two (2) hours after cessation of 6
operation or physical control of a motor vehicle, the results of the test or tests 7
shall be inadmissible as evidence in a prosecution under subsection (1)(d) of 8
this section. The results of the test or tests, however, may be admissible in a 9
prosecution under subsection (1)(c) or (e) of this section. 10
(3) In any prosecution for a violation of subsection (1)(b) or (e) of this section in which 11
the defendant is charged with having operated or been in physical control of a 12
motor vehicle while under the influence of alcohol, th e alcohol concentration in the 13
defendant's blood as determined at the time of making analysis of his or her blood 14
or breath shall give rise to the following presumptions: 15
(a) If there was an alcohol concentration of less than 0.04 [ based upon the 16
definition of alcohol concentration in KRS 189A.005] , it shall be presumed 17
that the defendant was not under the influence of alcohol; and 18
(b) If there was an alcohol concentration of 0.04 or greater but less than 0.08 [ 19
based upon the definition of alcohol concentra tion in KRS 189A.005] , that 20
fact shall not constitute a presumption that the defendant either was or was not 21
under the influence of alcohol, but that fact may be considered, together with 22
other competent evidence, in determining the guilt or innocence of t he 23
defendant. 24
[The provisions of ] This subsection shall not be construed as limiting the 25
introduction of any other competent evidence bearing upon the questions of 26
whether the defendant was under the influence of alcohol or other substances, in 27
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any prosecution for a violation of subsection (1)(b) or (e) of this section. 1
(4) (a) Except as provided in paragraph (b) of this subsection, the fact that any person 2
charged with violation of subsection (1) of this section is legally entitled to 3
use any substance, i ncluding alcohol, shall not constitute a defense against 4
any charge of violation of subsection (1) of this section. 5
(b) A laboratory test or tests for a controlled substance shall be inadmissible as 6
evidence in a prosecution under subsection (1)(d) of this section upon a 7
finding by the court that the defendant consumed the substance under a valid 8
prescription from a practitioner, as defined in KRS 218A.010, acting in the 9
course of his or her professional practice. However, a laboratory test for a 10
controlled substance may be admissible as evidence in a prosecution under 11
subsection (1)(c) or (e) of this section. 12
(5) Any person who violates the provisions of paragraph (a), (b), (c), (d), or (e) of 13
subsection (1) of this section shall: 14
(a) For the first offense within a ten (10) year period, be fined not less than two 15
hundred dollars ($200) nor more than five hundred dollars ($500), or be 16
imprisoned in the county jail for not less than forty -eight (48) hours nor more 17
than thirty (30) days, or both. Following sent encing, the defendant may apply 18
to the judge for permission to enter a community labor program for not less 19
than forty -eight (48) hours nor more than thirty (30) days in lieu of fine or 20
imprisonment, or both. If any of the aggravating circumstances listed in 21
subsection (11) of this section are present while the person was operating or in 22
physical control of a motor vehicle, the mandatory minimum term of 23
imprisonment shall be four (4) days, which term shall not be suspended, 24
probated, conditionally discharge d, or subject to any other form of early 25
release; 26
(b) For the second offense within a ten (10) year period, be fined not less than 27
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three hundred fifty dollars ($350) nor more than five hundred dollars ($500) 1
and shall be imprisoned in the county jail for n ot less than seven (7) days nor 2
more than six (6) months and, in addition to fine and imprisonment, may be 3
sentenced to community labor for not less than ten (10) days nor more than 4
six (6) months. If any of the aggravating circumstances listed in subsecti on 5
(11) of this section are present, the mandatory minimum term of 6
imprisonment shall be fourteen (14) days, which term shall not be suspended, 7
probated, conditionally discharged, or subject to any other form of early 8
release; 9
(c) For a third offense withi n a ten (10) year period, be fined not less than five 10
hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall 11
be imprisoned in the county jail for not less than thirty (30) days nor more 12
than twelve (12) months and may, in addition to fine and imprisonment, be 13
sentenced to community labor for not less than thirty (30) days nor more than 14
twelve (12) months. If any of the aggravating circumstances listed in 15
subsection (11) of this section are present, the mandatory minimum term of 16
imprisonment shall be sixty (60) days, which term shall not be suspended, 17
probated, conditionally discharged, or subject to any other form of early 18
release; 19
(d) For a fourth or subsequent offense within a ten (10) year period, be guilty of a 20
Class D felony. If an y of the aggravating circumstances listed in subsection 21
(11) of this section are present, the mandatory minimum term of 22
imprisonment shall be two hundred forty (240) days, which term shall not be 23
suspended, probated, conditionally discharged, or subject to any other form of 24
release; and 25
(e) For purposes of this subsection, prior offenses shall include all convictions in 26
this Commonwealth[state], and any other state or jurisdiction, for operating or 27
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being in control of a motor vehicle while under the influen ce of alcohol or 1
other substances that impair one's driving ability, or any combination of 2
alcohol and such substances, or while having an unlawful alcohol 3
concentration, or driving while intoxicated, but shall not include convictions 4
for violating subsection (1)(f) of this section. A court shall receive as proof of 5
a prior conviction a copy of that conviction, certified by the court ordering the 6
conviction. 7
(6) Any person who violates the provisions of subsection (1)(f) of this section shall be 8
fined no less than one hundred dollars ($100) and no more than five hundred dollars 9
($500), or sentenced to twenty (20) hours of community service in lieu of a fine. A 10
person subject to the penalties of this subsection shall not be subject to the penalties 11
established in subsection (5) of this section or any other penalty established 12
pursuant to KRS Chapter 189A, except those established in KRS 189A.040(1) and 13
KRS 189A.070. 14
(7) If the person is under the age of twenty -one (21) and there was an alcohol 15
concentration of 0.08 or greater[ based on the definition of alcohol concentration in 16
KRS 189A.005], the person shall be subject to the penalties established pursuant to 17
subsection (5) of this section. 18
(8) (a) For a second or third offense within a ten (10) year period, t he minimum 19
sentence of imprisonment or community labor shall not be suspended, 20
probated, or subject to conditional discharge or other form of early release. 21
(b) For a fourth or subsequent offense under this section, the minimum term of 22
imprisonment shall be one hundred twenty (120) days, and this term shall not 23
be suspended, probated, or subject to conditional discharge or other form of 24
early release. 25
(c) For a second or subsequent offense, at least forty -eight (48) hours of the 26
mandatory sentence shall be served consecutively. 27
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(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of 1
the penalties shall be assessed and that penalty shall not be suspended, probated, or 2
subject to conditional discharge or other form of early release. 3
(10) In determining the ten (10) year period under this section, the period shall be 4
measured from the dates on which the offenses occurred for which the judgments of 5
conviction were entered. 6
(11) For purposes of this section, aggravating circumstanc es are any one (1) or more of 7
the following: 8
(a) Operating a motor vehicle in excess of thirty (30) miles per hour above the 9
speed limit; 10
(b) Operating a motor vehicle in the wrong direction on a limited access highway; 11
(c) Operating a motor vehicle that causes an accident resulting in death or serious 12
physical injury as defined in KRS 500.080; 13
(d) Operating a motor vehicle while the alcohol con centration in the operator's 14
blood or breath is 0.15 or more as measured by a test or tests of a sample of 15
the operator's blood or breath taken within two (2) hours of cessation of 16
operation of the motor vehicle; 17
(e) Refusing to submit to any test [or test s ] of one's [blood, ] breath[, or urine] 18
requested by an officer having reasonable grounds to believe the person was 19
operating or in physical control of a motor vehicle in violation of subsection 20
(1) of this section, except it shall not be considered an agg ravating 21
circumstance for a first offense under subsection (5)(a) of this section; and 22
(f) Operating a motor vehicle that is transporting a passenger under the age of 23
twelve (12) years old. 24
(12) The substances applicable to a prosecution under subsection ( 1)(d) of this section 25
are: 26
(a) Any Schedule I controlled substance except marijuana; 27
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(b) Alprazolam; 1
(c) Amphetamine; 2
(d) Buprenorphine; 3
(e) Butalbital; 4
(f) Carisoprodol; 5
(g) Clonazepam; 6
(h) Cocaine; 7
(i)[(h)] Cyclobenzaprine; 8
(j) Diazepam; 9
(k)[(i)] Fentanyl; 10
(l) Hydrocodone; 11
(m)[(j)] Meprobamate; 12
(n)[(k)] Methadone; 13
(o)[(l)] Methamphetamine; 14
(p)[(m)] Oxycodone; 15
(q)[(n)] Promethazine; 16
(r)[(o)] Propoxyphene; and 17
(s)[(p)] Zolpidem. 18
Section 2. KRS 189A.100 is amended to read as follows: 19
(1) (a) Law enforcement agencies may administer preliminary breath tests using 20
devices or equipment which will ensure an accurate determination of blood 21
alcohol content. Preliminary breath [Such] tests may be administered in the 22
field to a person suspected of violation of KRS 189A.010 before the person is 23
arrested. This test may be administered in addition to any other blood alcohol 24
level test authorized by law. 25
(b) 1. A person's refusal to take a preliminary breath test shall not: 26
a. Be used against him or her in a court of law or in any 27
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administrative proceeding; or 1
b. Result in the suspension of his or her license by the court at the 2
time of arraignment. 3
2. Prior to t he administration of preliminary breath test, a person 4
suspected of violating Section 1 of this Act shall be informed of the 5
provisions of subparagraph 1. of this paragraph. 6
(2) (a) Law enforcement agencies may record on film or videotape or by other visu al 7
and audible means: 8
1. The pursuit of a violator or suspected violator; 9
2. The traffic stop; or 10
3. a. Field sobriety tests administered at the scene or such tests at a 11
police station, jail, or other suitable facility; or 12
b. The refusal of a violator or s uspected violator to submit to tests 13
under KRS 189A.103; 14
for a suspected violation of KRS 189A.010. 15
(b) Recordings made under paragraph (a) of this subsection shall be subject to the 16
following conditions: 17
1. The testing is recorded in its entirety , [(]except for blood alcohol 18
analysis testing[)]; 19
2. The entire recording of the field sobriety tests or refusal and the entire 20
recording of the pursuit and traffic stop is shown in court unless the 21
defendant waives the showing of any portions not offered by the 22
prosecution; 23
3. The entire recording is available to be shown by the defense at trial if 24
the defendant [so ]desires regardless of whether it was introduced by the 25
Commonwealth; 26
4. The defendant or his or her counsel is afforded an opportunity to view 27
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the entire recording a reasonable time before the trial in order to prepare 1
an adequate defense; 2
5. Recordings shall be used for official purposes only, which shall include 3
viewing: 4
a. [Viewing ]In court; 5
b. [Viewing ] By the prosecution and defense in preparati on for a 6
trial; and 7
c. [Viewing ] For purposes of administrative reviews and official 8
administrative proceedings. Recordings shall otherwise be 9
considered as confidential records; 10
6. The videotape or film taken in accordance with this section shall, upon 11
order of the sentencing court, be destroyed after the later of the 12
following: 13
a. Fourteen (14) months, if there is no appeal of any criminal or 14
traffic case filed as a result of the videotape or film, or if the 15
videotape or film does not record the actual ha ppening of an 16
accident involving a motor vehicle; 17
b. Fourteen (14) months after a decision has been made not to 18
prosecute any case upon which an arrest has been made or a 19
citation issued as a result of the videotape or film, if the videotape 20
does not recor d the actual happening of an accident involving a 21
motor vehicle; 22
c. Twenty-six (26) months, if there is no appeal of any criminal or 23
traffic case filed as a result of the videotape or film, if the 24
videotape or film records the actual happening of an accide nt 25
involving a motor vehicle; 26
d. After all appeals have been exhausted arising from any criminal or 27
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traffic case filed as a result of the videotape; 1
e. At the conclusion of any civil case arising from events depicted on 2
the videotape or film; or 3
f. At the conclusion of the exhaustion of all appeals arising from any 4
law enforcement agency administrative proceedings arising from 5
events depicted on the videotape or film; and 6
7. Public officials or employees utilizing or showing recordings other than 7
as permitted in this chapter or permitting others to do so shall be guilty 8
of official misconduct in the first degree under KRS 522.020. 9
(3) When a peace officer makes a videotape or film recording of any transaction 10
covered by subsection (2) of this section and a citation is issued or an arrest is 11
made, the peace officer shall note on the uniform citation that a videotape has been 12
made of the transaction. 13
Section 3. KRS 189A.105 is amended to read as follows: 14
(1) A person's refusal to submit to tests under KRS 189A.103 shall result in suspension 15
of his or her driving privilege as provided in this chapter. 16
(2) (a) At the time a breath[,] or blood[, or urine] test is requested, the person shall be 17
informed that: 18
1. [That, ]If the person refuses to submit to a breath test[such tests]: 19
a. The fact of this refusal may be used against him or her in court as 20
evidence of violating KRS 189 A.010 and will result in suspension 21
of his or her driver's license by the court at the time of 22
arraignment; and 23
b. If the person is subsequently convicted of violating KRS 24
189A.010(1): 25
i. For a second or third time within a ten (10) year period, he or 26
she will be subject to a mandatory minimum jail sentence 27
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which is twice as long as the mandatory minimum jail 1
sentence imposed if he or she submits to the tests; and 2
ii. His or her license will be suspended by the Transportation 3
Cabinet; 4
2. If the person refuses to submit to a blood test: 5
a. The fact of this refusal shall not be used against him or her in 6
court as evidence of violating Section 1 of this Act but will result 7
in suspension of his or her driver's license by the court at the 8
time of arraignment; and 9
b. If the person is subsequently convicted of violating subsection (1) 10
of Section 1 of this Act, his or her license will be suspended by 11
the Transportation Cabinet; 12
3. [That, ]If a test is taken: 13
a. The results of the test may be used against the person in court as 14
evidence of violating KRS 189A.010(1); and 15
b. The person has the right to have a test or tests of his or her blood 16
performed by a person of his or her choosing described in KRS 17
189A.103 wit hin a reasonable time of his or her arrest at the 18
expense of the person arrested; and 19
4.[3.] [That ]Although his or her license will be suspended, he or she may be 20
eligible immediately for an ignition interlock license allowing him or 21
her to drive during t he period of suspension and, if he or she is 22
convicted, he or she will receive a credit toward any other ignition 23
interlock requirement arising from this arrest. 24
(b) [Nothing in ] This subsection shall not be construed to prohibit a judge of a 25
court of comp etent jurisdiction from issuing a search warrant or other court 26
order requiring a blood [or urine ] test[, or a combination thereof,] of a 27
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defendant charged with a violation of KRS 189A.010, or other statutory 1
violation arising from the incident. However, i f the incident involves a motor 2
vehicle accident in which there was a fatality, the investigating peace officer 3
shall seek [such ] a search warrant for blood testing unless the testing has 4
already been done by consent. If testing done pursuant to a warrant reveals the 5
presence of alcohol or any other substance that impaired the driving ability of 6
a person who is charged and convicted of a violation of KRS 189A.010(1), 7
the sentencing court shall require, in addition to any other sentencing 8
provision, that the defendant make restitution to the Commonwealth[state] for 9
the cost of the testing. 10
(c) 1. When directed by a peace officer pursuant to a search warrant or other 11
court order issued under this subsection, a qualified medical professional 12
shall withdraw the sample of blood as soon as practicable and shall 13
deliver the sample to the requesting peace officer, or other peace officer 14
as directed by the requesting peace officer, if[provided that] the 15
collection of the sample does not jeopardize the person's life, c ause 16
serious injury to the person, or seriously impede the person's medical 17
assessment, care, or treatment. 18
2. The qualified medical professional authorized to withdraw the blood 19
sample and the medical care facility where the blood sample is drawn 20
shall be considered as acting in good faith once presented with a search 21
warrant or other court order issued under this subsection. The qualified 22
medical professional shall not require the person that is the subject of 23
the test or tests to provide any additional consent. 24
3. A qualified medical professional who administers any test under this 25
paragraph upon the request of a peace officer, and a medical care facility 26
where any test under this paragraph may be performed, shall not be 27
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criminally liable solely for admin istering the requested test or civilly 1
liable for damages to the person tested solely for administering the 2
requested test except in cases of gross negligence or willful or wanton 3
misconduct. 4
(d) If the person is not informed of the provisions of paragraph (a) of this 5
subsection prior to the request for a breath or blood test, the person shall 6
not have his or her: 7
1. Refusal to submit to a breath or blood test used: 8
a. Against him or her in court a s evidence of violating Section 1 of 9
this Act; or 10
b. As an aggravating circumstance under subsection (11) of 11
Section 1 of this Act; or 12
2. License suspended by the court at the time of arraignment. 13
(3) During the period immediately preceding the administrat ion of any test, the person 14
shall be afforded an opportunity of at least ten (10) minutes but not more than 15
fifteen (15) minutes to attempt to contact and communicate with an attorney and 16
shall be informed of this right. Inability to communicate with an at torney during 17
this period shall not be deemed to relieve the person of his or her obligation to 18
submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 19
shall remain applicable to the person upon refusal. [Nothing in ] This section shall 20
not be deemed to create a right to have an attorney present during the 21
administration of the tests, but the person's attorney may be present if the attorney 22
can physically appear at the location where the test is to be administered within the 23
time period established in this section. 24
(4) Immediately following the administration of the final test requested by the officer, 25
the person shall again be informed of his or her right to have a test or tests of his or 26
her blood performed by a person of his or her choosing described in KRS 189A.103 27
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within a reasonable time of his or her arrest at the expense of the person arrested. 1
He or she shall then be asked , "Do you want such a test?" The officer shall make 2
reasonable efforts to provide transportation to the tests. 3
Section 4. KRS 186.018 is amended to read as follows: 4
(1) For purposes of maintaining driving history records of operators of motor vehicles 5
of the Commonwealth, the files of the Transportation Cabinet shall be used to 6
ascertain the driving history record of each person who is licensed to operate a 7
motor vehicle within the Commonwealth. 8
(2) Except as provided in subsections (3) and (4) of this section, the Transportation 9
Cabinet shall destroy, and shall not maintain, rec ords of moving traffic convictions 10
that are more than ten (10)[five (5)] years old. 11
(3) For any licensee who now holds, who has applied for, or has ever held a 12
commercial driver's license or commercial learner's permit issued pursuant to KRS 13
281A.120 or 281A.170, the cabinet shall keep conviction records indefinitely. 14
(4) The Transportation Cabinet shall not release information on the driving history 15
record of a person under the age of twenty -one (21) whose operator license has 16
been suspended pursuant to KR S 189A.010(6). The cabinet shall destroy, and shall 17
not maintain, the record of the suspension of a person's operator's license if the 18
license was suspended pursuant to KRS 189A.010(6), within five (5) working days 19
of the person's operator's license being reinstated. This subsection shall not apply to 20
a person who holds, or is required to hold, a commercial driver's license or 21
commercial learner's permit. 22
(5) The cabinet shall charge a fee of three dollars ($3) for any driving history record, 23
ten cents ($0. 10) of which shall be deposited in a special account within the road 24
fund to be used exclusively by the Transportation Cabinet for the state driver 25
education program as designated in KRS 186.535. 26