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AN ACT relating to driving under the influence of marijuana. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
ď˘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, including intoxicating hemp 12
products; 13
(d) While the presence of a controlled substance listed in subsection (12) of this 14
section is detected in the blood, as measured by a scientifically reliable test, or 15
tests, taken within two (2) hours of cessation of operation or physical control 16
of a motor vehicle; 17
(e) While under the combined influence of alcohol and any other substance which 18
impairs one's driving ability, including intoxicating hemp products; or 19
(f) Having an alcohol concentration of 0.02 or more as measured by a 20
scientifically reliable test or tests of a sample of the person's breath or blood 21
taken within two (2) hours of cessation of operation or physical control of a 22
motor vehicle, if the person is under the age of twenty-one (21). 23
(2) With the exception of the results of the tests administered pursuant to KRS 24
189A.103(7): 25
(a) If the sample of the person's blood or breath that is used to determine the 26
alcohol concentration thereof was obtained more than two (2) hours after 27 UNOFFICIAL COPY 23 RS BR 1102
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cessation of operation or physical control of a motor vehicle, the results of the 1
test or tests shall be inadmissible as evidence in a prosecution under 2
subsection (1)(a) or (f) of this section. The results of the test or tests, however, 3
may be admissible in a prosecution under subsection (1)(b) or (e) of this 4
section; or 5
(b) If the sample of the person's blood that is used to determine the presence of a 6
controlled substance was obtained more than two (2) hours after cessation of 7
operation or physical control of a motor vehicle, the results of the test or tests 8
shall be inadmissible as evidence in a prosecution under subsection (1)(d) of 9
this section. The results of the test or tests, however, may be admissible in a 10
prosecution under subsection (1)(c) or (e) of this section. 11
(3) In any prosecution for a violation of subsection (1)(b) or (e) of this section in which 12
the defendant is charged with having operated or been in physical control of a 13
motor vehicle while under the influence of alcohol, the alcohol concentration in the 14
defendant's blood as determined at the time of making analysis of his blood or 15
breath shall give rise to the following presumptions: 16
(a) If there was an alcohol concentration of less than 0.04 based upon the 17
definition of alcohol concentration in KRS 189A.005, it shall be presumed 18
that the defendant was not under the influence of alcohol; and 19
(b) If there was an alcohol concentration of 0.04 or greater but less than 0.08 20
based upon the definition of alcohol concentration in KRS 189A.005, that fact 21
shall not constitute a presumption that the defendant either was or was not 22
under the influence of alcohol, but that fact may be considered, together with 23
other competent evidence, in determining the guilt or innocence of the 24
defendant. 25
The provisions of this subsection shall not be construed as limiting the introduction 26
of any other competent evidence bearing upon the questions of whether the 27 UNOFFICIAL COPY 23 RS BR 1102
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defendant was under the influence of alcohol or other substances, in any 1
prosecution for a violation of subsection (1)(b) or (e) of this section. 2
(4) (a) Except as provided in paragraph (b) of this subsection, the fact that any person 3
charged with violation of subsection (1) of this section is legally entitled to 4
use any substance, including alcohol, shall not constitute a defense against 5
any charge of violation of subsection (1) of this section. 6
(b) A laboratory test or tests for a controlled substance shall be inadmissible as 7
evidence in a prosecution under subsection (1)(d) of this section upon a 8
finding by the court that the defendant consumed the substance under a valid 9
prescription from a practitioner, as defined in KRS 218A.010, acting in the 10
course of his or her professional practice. However, a laboratory test for a 11
controlled substance may be admissible as evidence in a prosecution under 12
subsection (1)(c) or (e) of this section. 13
(5) Any person who violates the provisions of paragraph (a), (b), (c), (d), or (e) of 14
subsection (1) of this section shall: 15
(a) For the first offense within a ten (10) year period, be fined not less than two 16
hundred dollars ($200) nor more than five hundred dollars ($500), or be 17
imprisoned in the county jail for not less than forty-eight (48) hours nor more 18
than thirty (30) days, or both. Following sentencing, the defendant may apply 19
to the judge for permission to enter a community labor program for not less 20
than forty-eight (48) hours nor more than thirty (30) days in lieu of fine or 21
imprisonment, or both. If any of the aggravating circumstances listed in 22
subsection (11) of this section are present while the person was operating or in 23
physical control of a motor vehicle, the mandatory minimum term of 24
imprisonment shall be four (4) days, which term shall not be suspended, 25
probated, conditionally discharged, or subject to any other form of early 26
release; 27 UNOFFICIAL COPY 23 RS BR 1102
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(b) For the second offense within a ten (10) year period, be fined not less than 1
three hundred fifty dollars ($350) nor more than five hundred dollars ($500) 2
and shall be imprisoned in the county jail for not less than seven (7) days nor 3
more than six (6) months and, in addition to fine and imprisonment, may be 4
sentenced to community labor for not less than ten (10) days nor more than 5
six (6) months. If any of the aggravating circumstances listed in subsection 6
(11) of this section are present, the mandatory minimum term of 7
imprisonment shall be fourteen (14) days, which term shall not be suspended, 8
probated, conditionally discharged, or subject to any other form of early 9
release; 10
(c) For a third offense within a ten (10) year period, be fined not less than five 11
hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall 12
be imprisoned in the county jail for not less than thirty (30) days nor more 13
than twelve (12) months and may, in addition to fine and imprisonment, be 14
sentenced to community labor for not less than thirty (30) days nor more than 15
twelve (12) months. If any of the aggravating circumstances listed in 16
subsection (11) of this section are present, the mandatory minimum term of 17
imprisonment shall be sixty (60) days, which term shall not be suspended, 18
probated, conditionally discharged, or subject to any other form of early 19
release; 20
(d) For a fourth or subsequent offense within a ten (10) year period, be guilty of a 21
Class D felony. If any of the aggravating circumstances listed in subsection 22
(11) of this section are present, the mandatory minimum term of 23
imprisonment shall be two hundred forty (240) days, which term shall not be 24
suspended, probated, conditionally discharged, or subject to any other form of 25
release; and 26
(e) For purposes of this subsection, prior offenses shall include all convictions in 27 UNOFFICIAL COPY 23 RS BR 1102
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this state, and any other state or jurisdiction, for operating or being in control 1
of a motor vehicle while under the influence of alcohol or other substances 2
that impair one's driving ability, or any combination of alcohol and such 3
substances, or while having an unlawful alcohol concentration, or driving 4
while intoxicated, but shall not include convictions for violating subsection 5
(1)(f) of this section. A court shall receive as proof of a prior conviction a 6
copy of that conviction, certified by the court ordering the 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 fourth or subsequent 21
offense under this section, the minimum term of imprisonment shall be one hundred 22
twenty (120) days, and this term shall not be suspended, probated, or subject to 23
conditional discharge or other form of early release. For a second or subsequent 24
offense, at least forty-eight (48) hours of the mandatory sentence shall be served 25
consecutively. 26
(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of 27 UNOFFICIAL COPY 23 RS BR 1102
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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 1102
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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