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AN ACT relating to driving under the influence and declaring an emergency. 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 state: 5
(a) Having an alcohol concentration of 0.08 or more as measured 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 alcohol 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 UNOFFICIAL COPY 23 RS BR 1649
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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 be 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, the 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 concentration in KRS 189A.005, that fact 20
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 the 23
defendant. 24
The provisions of this subsection shall not be construed as limiting the introduction 25
of any other competent evidence bearing upon the questions of whether the 26
defendant was under the influence of alcohol or other substances, in any 27 UNOFFICIAL COPY 23 RS BR 1649
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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, including 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 sentencing, 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 discharged, 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 UNOFFICIAL COPY 23 RS BR 1649
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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 not 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 subsection 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 within 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 third[fourth] or subsequent offense within a ten (10) year period, be 20
guilty of a Class D felony. If any of the aggravating circumstances listed in 21
subsection (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
(d)[(e)] For purposes of this subsection, prior offenses shall include all 26
convictions in this state, and any other state or jurisdiction, for operating or 27 UNOFFICIAL COPY 23 RS BR 1649
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being in control of a motor vehicle while under the influence 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) For a second or third offense within a ten (10) year period, the minimum sentence 19
of imprisonment or community labor shall not be suspended, probated, or subject to 20
conditional discharge or other form of early release. For a third[fourth] or 21
subsequent offense under this section, the minimum term of imprisonment shall be 22
one hundred twenty (120) days, and this term shall not be suspended, probated, or 23
subject to conditional discharge or other form of early release. For a second or 24
subsequent offense, at least forty-eight (48) hours of the mandatory sentence shall 25
be served consecutively. 26
(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of 27 UNOFFICIAL COPY 23 RS BR 1649
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the penalties shall be assessed and that penalty shall not be suspended, probated, or 1
subject to conditional discharge or other form of early release. 2
(10) In determining the ten (10) year period under this section, the period shall be 3
measured from the dates on which the offenses occurred for which the judgments of 4
conviction were entered. 5
(11) For purposes of this section, aggravating circumstances are any one (1) or more of 6
the following: 7
(a) Operating a motor vehicle in excess of thirty (30) miles per hour above the 8
speed limit; 9
(b) Operating a motor vehicle in the wrong direction on a limited access highway; 10
(c) Operating a motor vehicle that causes an accident resulting in death or serious 11
physical injury as defined in KRS 500.080; 12
(d) Operating a motor vehicle while the alcohol concentration in the operator's 13
blood or breath is 0.15 or more as measured by a test or tests of a sample of 14
the operator's blood or breath taken within two (2) hours of cessation of 15
operation of the motor vehicle; 16
(e) Refusing to submit to any test or tests of one's blood, breath, or urine 17
requested by an officer having reasonable grounds to believe the person was 18
operating or in physical control of a motor vehicle in violation of subsection 19
(1) of this section, except it shall not be considered an aggravating 20
circumstance for a first offense under subsection (5)(a) of this section; and 21
(f) Operating a motor vehicle that is transporting a passenger under the age of 22
twelve (12) years old. 23
(12) The substances applicable to a prosecution under subsection (1)(d) of this section 24
are: 25
(a) Any Schedule I controlled substance except marijuana; 26
(b) Alprazolam; 27 UNOFFICIAL COPY 23 RS BR 1649
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(c) Amphetamine; 1
(d) Buprenorphine; 2
(e) Butalbital; 3
(f) Carisoprodol; 4
(g) Cocaine; 5
(h) Diazepam; 6
(i) Hydrocodone; 7
(j) Meprobamate; 8
(k) Methadone; 9
(l) Methamphetamine; 10
(m) Oxycodone; 11
(n) Promethazine; 12
(o) Propoxyphene; and 13
(p) Zolpidem. 14
Section 2. KRS 189A.110 is amended to read as follows: 15
Any person who is arrested for a violation of KRS 189A.010 [and who, upon breath 16
analysis testing, shows an alcohol concentration reading of .15 percent or more ]shall be 17
detained in custody at least eight (8)[four (4)] hours following his or her arrest. 18
Section 3. KRS 189A.040 is amended to read as follows: 19
(1) In addition to any other penalty prescribed by KRS 189A.010(5)(a) or (6), the court 20
shall sentence the person to attend an alcohol or substance abuse education or 21
treatment program subject to the following terms and conditions for a first offender 22
or a person convicted under KRS 189A.010(1)(f): 23
(a) The treatment or education shall be for a period of ninety (90) days and the 24
program shall provide an assessment of the defendant's alcohol or other 25
substance abuse problems, which shall be performed at the start of the 26
program; 27 UNOFFICIAL COPY 23 RS BR 1649
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(b) Each defendant shall pay the cost of the education or treatment program up to 1
his or her ability to pay but no more than the actual cost of the treatment; 2
(c) Upon written report to the court by the administrator of the program that the 3
defendant has completed the program recommended by the administrator 4
based upon the assessment of the defendant, the defendant shall be released 5
prior to the expiration of the ninety (90) day period; and 6
(d) Failure to complete the education or treatment program or to pay the amount 7
specified by the court for education or treatment shall constitute contempt, 8
and the court shall, in addition to any other remedy for contempt, reinstitute 9
all penalties which were previously imposed but suspended or delayed 10
pending completion of the education or treatment program. 11
(2) In addition to any other penalty prescribed by KRS 189A.010(5)(b), the court shall 12
sentence the person to an alcohol or substance abuse treatment program subject to 13
the following terms and conditions for a second offender: 14
(a) The sentence shall be for a period of one (1) year and the program shall 15
provide an assessment of the defendant's alcohol or other substance abuse 16
problems, which shall be performed at the start of the program; 17
(b) Each defendant shall pay the cost of the treatment program up to his or her 18
ability to pay but no more than the actual cost of the treatment; 19
(c) Upon written report to the court by the administrator of the program that the 20
defendant has completed the program recommended by the administrator 21
based upon the assessment of the defendant, the defendant may be released 22
prior to the expiration of the one (1) year period; and 23
(d) Failure to complete the treatment program or to pay the amount specified by 24
the court for treatment shall constitute contempt of court and the court shall, 25
in addition to any other remedy for contempt, reinstitute all penalties which 26
were previously imposed but suspended or delayed pending the completion of 27 UNOFFICIAL COPY 23 RS BR 1649
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the treatment program. 1
(3) In addition to any other penalty prescribed by KRS 189A.010(5)(c)[ or (d)], the 2
court shall sentence the person to an alcohol or substance abuse treatment program 3
subject to the following terms and conditions for a third or subsequent offender: 4
(a) The sentence shall be for a period of one (1) year and the program shall 5
provide an assessment of the defendant's alcohol or other substance abuse 6
problems, which shall be performed at the start of the program. The program 7
may be an inpatient or residential-type program; 8
(b) Each defendant shall pay the cost of the treatment program up to his or her 9
ability to pay but no more than the actual cost of the program; 10
(c) A defendant, upon written recommendation to the court by the administrator 11
of the program, may be released from the inpatient or residential program 12
prior to the expiration of one (1) year but shall be retained in the program on 13
an outpatient basis for the remainder of the year period; and 14
(d) Failure to complete the treatment program or to pay the amount specified by 15
the court for treatment shall constitute contempt of court, and the court shall, 16
in addition to any other remedy for contempt, reinstitute all penalties which 17
were previously imposed but suspended or delayed pending completion of the 18
treatment program. 19
(4) Costs of treatment or education programs which are paid from the service fee 20
established by KRS 189A.050, or from state or federal funds, or any combination 21
thereof, shall be deducted from the amount which the defendant must pay. 22
(5) For defendants who are Medicaid-eligible, alcohol or substance abuse treatment 23
under this section shall be authorized by the Department for Medicaid Services and 24
its contractors as Medicaid-eligible services and shall be subject to the same 25
medical necessity criteria and reimbursement methodology as for all other covered 26
behavioral health services. 27 UNOFFICIAL COPY 23 RS BR 1649
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(6) For the purposes of this section, "treatment" means service in an alcohol or 1
substance abuse education or treatment program or facility licensed, regulated, and 2
monitored by the Cabinet for Health and Family Services for services as required 3
under this section. 4
(7) The Cabinet for Health and Family Services shall promulgate administrative 5
regulations for the licensure of education and treatment facilities and programs for 6
offenders receiving education or treatment under this section. The criteria 7
developed by the Cabinet for Health and Family Services shall include: 8
(a) Manner of assessment; 9
(b) Appropriate education and treatment plans; and 10
(c) Referrals to other treatment providers. 11
(8) The participating facilities and programs shall be required to abide by these 12
standards and shall report completion to the Transportation Cabinet. Upon request, 13
the facility or program shall report to the courts regarding the progress of offenders 14
being treated pursuant to this section. 15
(9) Administrative decisions regarding the licensure of education and treatment 16
facilities and programs may be appealed, and upon appeal an administrative hearing 17
shall be conducted in accordance with KRS Chapter 13B. 18
Section 4. KRS 189A.200 is amended to read as follows: 19
(1) The court shall at the arraignment or as soon as such relevant information becomes 20
available suspend the motor vehicle operator's license and motorcycle operator's 21
license and driving privileges of any person charged with a violation of KRS 22
189A.010(1) who: 23
(a) Has refused to take an alcohol concentration or substance test as reflected on 24
the uniform citation form; 25
(b) Has been convicted of one (1) or more prior offenses as described in KRS 26
189A.010(5)(d)[(e)] or has had his or her operator's license suspended on one 27 UNOFFICIAL COPY 23 RS BR 1649
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(1) or more occasions for refusing to take an alcohol concentration or 1
substance test, in the ten (10) year period immediately preceding his or her 2
arrest; or 3
(c) Was involved in an accident that resulted in death or serious physical injury as 4
defined in KRS 500.080 to a person other than the defendant. 5
(2) Persons whose licenses have been suspended pursuant to this section may file a 6
motion for judicial review of the suspension, and the court shall conduct the review 7
in accordance with this chapter within thirty (30) days after the filing of the motion. 8
The court shall, at the time of the suspension, advise the defendant of his or her 9
rights to the review. 10
(3) When the court orders the suspension of a license pursuant to: 11
(a) Subsection (1)(a) of this section, the court may, in addition to any other 12
conditions the court may order, require that the person apply to the 13
Transportation Cabinet for issuance of an ignition interlock license under 14
KRS 189A.340 for the period of the suspension; 15
(b) Subsection (1)(b) or (c) of this section, the court shall, in addition to any other 16
conditions the court may order, require that the person apply to the 17
Transportation Cabinet for issuance of an ignition interlock license under 18
KRS 189A.340 for the period of suspension; and 19
(c) Subsection (1) of this section and the person is required to apply for an 20
ignition interlock license pursuant to paragraph (a) or (b) of this subsection, 21
the person shall present the completed ignition interlock license application to 22
the court. 23
(4) When the court orders the suspension of a license pursuant to this section, the 24
defendant shall immediately surrender his or her license to operate a motor vehicle 25
or motorcycle to the court. Should the defendant fail to surrender his or her license 26
to the court, the court shall issue an order directing the sheriff or any other peace 27 UNOFFICIAL COPY 23 RS BR 1649
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officer to seize the license forthwith and deliver it to the court. If the license is 1
currently under suspension, the provisions of this subsection shall not apply. 2
(5) The Circuit Court Clerk shall forthwith transmit to the Transportation Cabinet: 3
(a) Any license surrendered pursuant to this section; and 4
(b) If the court ordered a person to apply for an ignition interlock device under 5
subsection (3) of this section, notification of the order. 6
(6) Licenses suspended under this section shall remain suspended until: 7
(a) The person is acquitted; 8
(b) All pending or current charges relating to a violation of KRS 189A.010 9
have been dismissed; or 10
(c) The person is convicted and the Transportation Cabinet has suspended 11
his or her license pursuant to KRS 189A.070; 12
but in no event for a period longer than the license suspension period 13
applicable to the person under KRS 189A.070 or 189A.107. 14
(7) Any person whose operator's license has been suspended pursuant to this section 15
shall be given credit for all pretrial suspension time against the period of suspension 16
imposed under KRS 189A.070. 17
Section 5. KRS 189A.240 is amended to read as follows: 18
In any judicial review of a pretrial suspension imposed under KRS 189A.200(1)(b), if the 19
court determines by a preponderance of the evidence that: 20
(1) The person was charged and arrested by a peace officer with a violation of KRS 21
189A.010(1)(a), (b), (c), (d), or (e); 22
(2) The peace officer had reasonable grounds to believe that the person was operating a 23
motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e); 24
(3) There is probable cause to believe that the person committed the violation of KRS 25
189A.010(1)(a), (b), (c), (d), or (e) as charged; and 26
(4) The person has been convicted of one (1) or more prior offenses as described in 27 UNOFFICIAL COPY 23 RS BR 1649
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KRS 189A.010(5)(d)[(e)] or has had his or her motor vehicle operator's license 1
suspended on one (1) or more occasions for refusing to take an alcohol 2
concentration or substance test, in the ten (10) year period immediately preceding 3
his or her arrest; 4
then the court shall continue to suspend the person's operator's license or privilege to 5
operate a motor vehicle, but in no event for a period longer than the license suspension 6
period applicable to the person under KRS 189A.070 and 189A.107. The provisions of 7
this section shall not be construed as limiting the person's ability to challenge any prior 8
convictions or license suspensions or refusals. 9
Section 6. KRS 281A.2102 is amended to read as follows: 10
In addition to the penalties established by this chapter for driving a commercial motor 11
vehicle under the influence of alcohol: 12
(1) Any person convicted of driving a commercial motor vehicle while the alcohol 13
concentration of the person's blood or breath is four hundredths (0.04) to eight 14
hundredths (0.08) shall be fined not less than twenty dollars ($20) and not more 15
than fifty dollars ($50). 16
(2) Any person convicted of driving a commercial motor vehicle while the alcohol 17
concentration of the person's blood or breath is greater than eight hundredths (0.08) 18
shall be fined under the provisions of KRS 189A.010(5)(a) to (c)[(d)]. 19
Section 7. This Act may be cited as Lily's Law. 20
Section 8. Whereas driving under the influence of alcohol or any substance 21
which impairs one's ability to drive a motor vehicle presents a danger to public safety, an 22
emergency is declared to exist, and this Act takes effect upon passage and approval by 23
the Governor or upon its otherwise becoming a law. 24