DUI STATUTES ANNOTATED KRS Chapt 189A

 

CHAPTER 189A – DRIVING UNDER
THE INFLUENCE STATUTES    
KRS 189A.005 thru KRS 186.560
KRS 189A.015   Repealed, 2000.
KRS 189A.060   Repealed, 2000.
KRS 189A.230   Repealed, 1996.
OTHER DUI AND ALCOHOL RELATED STATUTES
OPEN CONTAINER LAW PROVIDING MOTOR VEHICLE TO INTOXICATED PERSON
D.O.T. MAY ISSUE DRIVER’S LICENSE EVEN IF
YOU ARE SUSPENDED IN ANOTHER STATE UNDER CERTAIN CONDITIONS
DOT RULES REGARDING SUSPENDED LICENSES
Updated 7/23/13 (2013) GB
 
 
KRS 189A.005 Definitions for chapter — License suspensions.
As used in this chapter, unless the context requires otherwise:
(1) "Alcohol concentration" means either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath;
(2) "Ignition interlock device" means a device that connects a motor vehicle ignition system or motorcycle ignition system to a breath alcohol analyzer and prevents a motor vehicle ignition or motorcycle ignition from starting, and from continuing to operate, if a driver’s breath alcohol concentration exceeds 0.02, as measured by the device;
(3) "License" means any driver’s or operator’s license or any other license or permit to operate a motor vehicle issued under or granted by the laws of this state including:
(a) Any temporary license or instruction permit;
(b) The privilege of any person to obtain a valid license or instruction permit, or to drive a motor vehicle whether or not the person holds a valid license; and
(c) Any nonresident’s operating privilege as defined in KRS Chapter 186 or 189;
(4) "Limited access highway" has the same meaning as "limited access facility" does in KRS 177.220;
(5) "Refusal" means declining to submit to any test or tests pursuant to KRS 189A.103. Declining may be either by word or by the act of refusal. If the breath testing instrument for any reason shows an insufficient breath sample and the alcohol concentration cannot be measured by the breath testing instrument, the law enforcement officer shall then request the defendant to take a blood or urine test in lieu of the breath test. If the defendant then declines either by word or by the act of refusal, he shall then be deemed to have refused if the refusal occurs at the site at which any alcohol concentration or substance test is to be administered;
(6) When age is a factor, it shall mean age at the time of the commission of the offense; and
(7) Unless otherwise provided, license suspensions under this chapter shall be imposed by the court. The court shall impose the applicable period of license suspension enumerated by this chapter and shall include in its order or judgment the length and terms of any suspension imposed. The license suspension shall be deemed effective on the date of entry of the court’s order or judgment. The role of the Transportation Cabinet shall be limited to administering the suspension period under the terms and for the duration enumerated by the court in its order or judgment.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 171, sec. 1, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 467, sec. 1, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 1, effective July 1, 1991.
 
Annotations FOR THIS STATUTE:
 
KY Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 06/17/2004)
 If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.
 
KY Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 03/18/2004) 
When Appellant declined to submit to the test, Stack asked Kentucky State Police Trooper David Lassiter to obtain a search warrant. Lassiter prepared an affidavit, obtained the warrant from a judge, brought it to the hospital and served it on a phlebotomist who withdrew a sample of blood from Appellant’s arm. The sample was taken approximately four hours and forty-five minutes after the collision. A test of the sample revealed a blood alcohol concentration of 0.09 grams per 100 milliliters. See KRS 189A.005 (1). The Commonwealth’s expert, Dr. Greg Davis, estimated by back-extrapolation that Appellant’s blood alcohol concentration at the time of the collision would have been between 0.16 and 0.185 grams per 100 milliliters.
 
KY Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 08/16/2002)
At the time of the offense, KRS 189A.010(2) (now KRS 189A.010(3)) provided as follows: In any prosecution for a violation of subsection (1)(b) or (d) of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant’s blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions: (a) If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol; and (b) If there was an alcohol concentration of 0.05 or greater but less than 0.10 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.
 
KY Love v. Commonwealth, 55 S.W.3d 816 (Ky. 02/22/2001)
Nor was it error to admit the results of the urinalysis. KRS 189A.005(1) defines "alcohol concentration," the key term in finding a driver in violation of KRS 189A.OlO(l)(a), in terms of milliliters of blood or liters of breath. Appellant argues that since the definition does not include urine, it was error to admit the urine sample test results. However, the failure of KRS 189A.005(1) to mention urine does not affect the admissibility of urine sample evidence to prove guilt under KRS 189A.OlO(l)(b). We need not decide whether a jury could convict Appellant of violating the "per se" section of the statute, KRS 189A.OlO(l)(a), based on the results of a test of his urine sample; for this evidence was relevant in determining whether he was guilty of violating the "under the influence" section of the statute, KRS 189A.010( l)(b). The jury was instructed on both statutory bases of guilt. We also note that urine tests are contemplated by KRS 189A.103(1), (3), and (5).
 
KY Johnson v. Commonwealth, 36 S.W.3d 763, 36 S.W.3d 763 (Ky.App. 01/26/2001)
While the alcohol concentration in his blood or breath is 0.02 or more based on the definition of alcohol concentration in KRS 189A.005 if the person is under the age of twenty-one (21).
 
KY Barker v. Commonwealth, 32 S.W.3d 515, 32 S.W.3d 515 (Ky.App. 09/29/2000) 
In KRS 189A.005, "alcohol concentration" is defined as "either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath."
 
KY Commonwealth v. Minix, No. 1997-CA-001432-DG (Ky.App. 09/11/1998)
According to KRS 189A.005, there is a presumption that a driver is not under the influence of alcohol if his or her alcohol concentration is less than 0.05 based upon the definition of alcohol concentration. However, if his or her alcohol concentration is between 0.05 and 0.10, there is no presumption — either way — that the defendant was or was not under the influence of alcohol; but the alcohol concentration level can be considered along with other evidence in determining the guilt or innocence of the defendant. KRS 189A.010 Section (2).
 
KY Commonwealth of Kentucky v. Ramsey, 920 S.W.2d 526 (Ky. 04/25/1996)
No person shall operate or be in physical control of a motor vehicle anywhere in this state: (a) While the alcohol concentration in his blood or breath is 0.10 or more based on the definition of alcohol concentration in KRS 189A.005; (b) While under the influence of alcohol; (c) While under the influence of any other substance or combination of substances which impairs one’s driving ability; or (d) While under the combined influence of alcohol and any other substance which impairs one’s driving ability. 
 
 
KRS 189A.010 Operating motor vehicle with alcohol concentration of or above 0.08, or of or above 0.02 for persons under age twenty-one, or while under the influence of alcohol or other substance which impairs driving ability prohibited — Admissibility of alcohol concentration test results – Presumptions — Penalties — Aggravating circumstances.
(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;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability;
(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;
(e) While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
(f) Having an alcohol concentration of 0.02 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, if the person is under the age of twenty-one (21).
(2) With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person’s blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (f) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (e) of this section.
(3) In any prosecution for a violation of subsection (1)(b) or (e) of this section in which the defendant is charged with having operated or been in physical control of a motor vehicle while under the influence of alcohol, the alcohol concentration in the defendant’s blood as determined at the time of making analysis of his blood or breath shall give rise to the following presumptions:
(a) If there was an alcohol concentration of less than 0.05 based upon the definition of alcohol concentration in KRS 189A.005, it shall be presumed that the defendant was not under the influence of alcohol; and
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08 based upon the definition of alcohol concentration in KRS 189A.005, that fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but that fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant.
The provisions of this subsection shall not be construed as limiting the introduction of any other competent evidence bearing upon the questions of whether the defendant was under the influence of alcohol or other substances, in any prosecution for a violation of subsection (1)(b) or (e) of this section.
(4)
(a) Except as provided in paragraph (b) of this subsection, the fact that any person charged with violation of subsection (1) of this section is legally entitled to use any substance, including alcohol, shall not constitute a defense against any charge of violation of subsection (1) of this section.
(b) A laboratory test or tests for a controlled substance shall be inadmissible as evidence in a prosecution under subsection (1)(d) of this section upon a finding by the court that the defendant consumed the substance under a valid prescription from a practitioner, as defined in KRS 218A.010, acting in the course of his or her professional practice.
(5) Any person who violates the provisions of paragraph (a), (b), (c), (d), or (e) of subsection (1) of this section shall:
(a) For the first offense within a five (5) year period, be fined not less than two hundred dollars ($200) nor more than five hundred dollars ($500), or be imprisoned in the county jail for not less than forty-eight (48) hours nor more than thirty (30) days, or both. Following sentencing, the defendant may apply to the judge for permission to enter a community labor program for not less than forty-eight (48) hours nor more than thirty (30) days in lieu of fine or imprisonment, or both. If any of the aggravating circumstances listed in subsection (11) of this section are present while the person was operating or in physical control of a motor vehicle, the mandatory minimum term of imprisonment shall be four (4) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release;
(b) For the second offense within a five (5) year period, be fined not less than three hundred fifty dollars ($350) nor more than five hundred dollars ($500) and shall be imprisoned in the county jail for not less than seven (7) days nor more than six (6) months and, in addition to fine and imprisonment, may be sentenced to community labor for not less than ten (10) days nor more than six (6) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be fourteen (14) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release;
(c) For a third offense within a five (5) year period, be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) and shall be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months and may, in addition to fine and imprisonment, be sentenced to community labor for not less than ten (10) days nor more than twelve (12) months. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be sixty (60) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release;
(d) For a fourth or subsequent offense within a five (5) year period, be guilty of a Class D felony. If any of the aggravating circumstances listed in subsection (11) of this section are present, the mandatory minimum term of imprisonment shall be two hundred forty (240) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of release; and
(e) For purposes of this subsection, prior offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated, but shall not include convictions for violating subsection (1)(f) of this section. A court shall receive as proof of a prior conviction a copy of that conviction, certified by the court ordering the conviction.
(6) Any person who violates the provisions of subsection (1)(f) of this section shall have his driving privilege or operator’s license suspended by the court for a period of no less than thirty (30) days but no longer than six (6) months, and the person shall be fined no less than one hundred dollars ($100) and no more than five hundred dollars ($500), or sentenced to twenty (20) hours of community service in lieu of a fine. A person subject to the penalties of this subsection shall not be subject to the penalties established in subsection (5) of this section or any other penalty established pursuant to KRS Chapter 189A, except those established in KRS 189A.040(1).
(7) If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.
(8) For a second or third offense within a five (5) year period, the minimum sentence of imprisonment or community labor shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release. For a second or subsequent offense, at least forty-eight (48) hours of the mandatory sentence shall be served consecutively.
(9) When sentencing persons under subsection (5)(a) of this section, at least one (1) of the penalties shall be assessed and that penalty shall not be suspended, probated, or subject to conditional discharge or other form of early release.
(10) In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered.
(11) For purposes of this section, aggravating circumstances are any one (1) or more of the following:
(a) Operating a motor vehicle in excess of thirty (30) miles per hour above the speed limit;
(b) Operating a motor vehicle in the wrong direction on a limited access highway;
(c) Operating a motor vehicle that causes an accident resulting in death or serious physical injury as defined in KRS 500.080;
(d) Operating a motor vehicle while the alcohol concentration in the operator’s blood or breath is 0.15 or more as measured by a test or tests of a sample of the operator’s blood or breath taken within two (2) hours of cessation of operation of the motor vehicle;
(e) Refusing to submit to any test or tests of one’s blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section; and
(f) Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.
(12) The substances applicable to a prosecution under subsection (1)(d) of this section are:
(a) Any Schedule I controlled substance except marijuana;
(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.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 17, effective July 15, 2010. — Amended 2002 Ky. Acts ch. 183, sec. 19, effective August 1, 2002. — Amended 2000 Ky. Acts ch. 467, sec. 2, effective October 1, 2000. — Amended 1998 Ky. Acts ch. 124, sec. 8, effective July 15, 1998; and ch. 606, sec. 171, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 198, sec. 1, effective October 10, 1996. — Amended 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 2, effective July 1, 1991. — Created 1984 Ky. Acts ch. 165, sec. 1, effective July 13, 1984.
 
 
Annotations:
 
 
Commonwealth v. Armstrong (Ky. App., 2013) February 22, 2013 2011-CA-000931-MR
….. As framed by the Commonwealth, the sole issue before this Court is whether Officer Hogan had probable cause to arrest Howard for DUI. The Commonwealth argues probable cause existed because, under the totality of the circumstances and all reasonable inferences drawn therefrom, it is clear Howard was in physical control of his vehicle while intoxicated, thereby justifying his DUI arrest.
KRS 189A.010 provides, in relevant part, that "[a] person shall not operate or be in physical control of a motor vehicle anywhere in this state . . . [w]hile under the influence of alcohol[.]" KRS 189A.010(1)(b). A district court may grant a motion to suppress evidence resulting from an arrest that lacked probable cause. Wilson v. Commonwealth, 37 S.W.3d 745, 748 (Ky. 2001). "Probable cause must exist and must be known by the arresting officer at the time of the arrest." White v. Commonwealth, 132 S.W.3d 877, 883 (Ky. App. 2003). Probable cause exists if the arresting officer has a reasonable belief, in view of all the evidence, that there was a "fair probability" that the defendant was operating or in physical control of the motor vehicle while under the influence of alcohol. Id.; see also Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky. 1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003). In ascertaining probable cause, the trial court is permitted to consider circumstantial evidence. Blades v. Commonwealth, 957 S.W.2d 246, 250 (Ky. 1997).
The seminal case in Kentucky on this issue is Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). In Wells, rendered under a former version of KRS 189A.010, a police officer found Wells asleep in the driver’s seat of his van. The van was parked in a parking lot outside a hotel. Wells was alone in the van, the keys were in the ignition, and the motor was running. The van’s parking brake was engaged. The police officer discovered a case of beer in the van, with three or four cans missing and one can empty. The police officer concluded Wells was under the influence of alcohol because he was unsteady on his feet, and he failed sobriety and breathalyzer tests.
We do not fail to appreciate the Commonwealth’s argument, nor the officer’s concern, that Howard was one step away from committing a crime – DUI – that might have resulted even in the loss of life. However, that single step is the dividing line between a legal and an illegal act.
Effectively, the district court concluded that there was not a "fair probability" that Howard committed the crime prohibited by KRS 189A.010(1). Under the totality of the circumstances, we cannot conclude that the district court’s determination was erroneous. While the vehicle’s engine was running, the vehicle was in park. Considering it was a cold January evening, the district court effectively found it a "fair probability" that Howard started the engine to stay warm. As in Wells, we do not "believe that merely starting the [vehicle’s] engine . . . [constituted] an exercise of actual physical control." 709 S.W.2d at 850.
Considering all the circumstances, the inference to be drawn is not that Howard intended to operate a motor vehicle while intoxicated, but that he had returned to his vehicle after an evening of merry-making, entered his vehicle and started it to warm himself while he sobered, at least to some degree, before returning home. But for the fact that Howard fell asleep and did not wake until the officer wakened him, perhaps he might have committed the crime of driving under the influence. But he did not.
 
[U] Hawk v. Commonwealth (Ky. App., 2013) 2012-CA-000030-MR March 15, 2013
We must agree with Appellant that the plain language of KRS 17.510 requires a prior conviction under the current Kentucky statute, or a prior version of such, to sustain a conviction for failure to register, second offense. If the legislature had intended to punish someone who has a prior offense in a foreign jurisdiction as a second time offender, it would have been so stated in the statute. See KRS 189A.010(4)(e) (DUI statute).  
 
Commonwealth v. Ballinger (Ky. App., 2012) SEPTEMBER 28, 2012
KRS 446.080(4) requires that we construe the words of all statutes "according to the common and approved usage of language," unless the words "have acquired a peculiar and appropriate meaning in the law . . . ." A plain reading of KRS 189A.010(5)(e) reveals that it does not require a "conviction-to-offense sequence" for subsequent DUI enhancement. Subsection (5)(e) neither refers to "subsequent offense" as set forth in KRS 189A.010(5)(d), nor defines it. Instead, it simply defines "prior offenses" as including "all convictions." Thus, consistent with Royalty, we believe that, for purposes of penalty enhancement under KRS 189A.010(5)(e), the determining factor as to whether conviction of a subsequent offense is proper is the existence of a credible record showing conviction of a prior offense. Therefore, it is the timing of the convictions that control, not the timing of the arrests.
…… Thus, Ballinger had a total of three prior DUI convictions. Therefore, we believe the trial court erred in granting Ballinger’s motion to amend the DUI 4th offense to DUI 2nd………….
For the foregoing reasons, we reverse the order of the Warren Circuit Court.
 
Cline v. Commonwealth (Ky. App., 2012) SEPTEMBER 14, 2012
In the case sub judice, the guilt and penalty phases of appellant’s trial were bifurcated. During the guilt phase of trial, the Commonwealth introduced evidence of appellant’s current DUI charge, and the jury found him guilty. Then, during the penalty phase, the Commonwealth properly introduced evidence of appellant’s previous DUI convictions, including one during the preceding five (5) years.As such, appellant was subject to the enhanced penalty provisions for DUI, second offense, pursuant to KRS 189A.010(5)(b). The Commonwealth admits that no proof of any aggravating circumstance was introduced at trial. However, a review of KRS 189A.010 reveals that the aggravating circumstance was of no consequence to appellant. KRS 189A.010(5)(b) provides that the minimum penalty for an aggravating circumstance on a DUI, second offense, is enhanced from seven (7) to fourteen (14) days; there is no change to the maximum sentence. As appellant was sentenced to the maximum penalty of six (6) months for DUI, second offense, the aggravating circumstance was of no consequence. Thus, we perceive no error by the trial court in sentencing appellant as a DUI second offense.
 
Commonwealth v. Bedway (Ky. App., 2012) OCTOBER 26, 2012
On June 8, 2011, the circuit court sitting in its appellate capacity rendered a thorough and well-reasoned opinion finding that Bedway’s statutory right to contact and communicate with an attorney was denied and, as a result, evidence of the breathalyzer test should be suppressed.
The Commonwealth first argues that the circuit court impermissibly expanded the scope of KRS 189A.105(3). The Commonwealth cites to Litteral v.Commonwealth, 282 S.W.3d 331,333 (Ky. App. 2008), wherein a panel of this Court held that "[t]he ‘right’ described is very circumscribed. It is merely the right to ‘an opportunity . . . to attempt to contact and communicate with an attorney[,]’" and further that "the Legislature intended only to allow such right as would not infringe upon the Commonwealth’s need to obtain accurate evidence regarding a violation of KRS 189A.010." As such, it is the Commonwealth’s position that the statute bestows the right to contact an attorney and no one else. Moreover, the Commonwealth complains that even if KRS 189A.105 (3) was violated, suppression of the evidence was erroneous because the drastic remedy of exclusion of evidence is reserved only for the violation of fundamental constitutional rights.
In addressing the second issue, whether the violation requires suppression, we review KRS 189A.105(3). That statute states, "Inability to communicate with an attorney during this period [preceding the tests] shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal." Certainly the inability of Ferguson to contact and communicate with an attorney did not relieve her of the obligation to undergo the tests. However, it is just as certain that the sentence preceding the above-quoted sentence granted Ferguson the right to communicate with an attorney, and by virtue of state action Ferguson’s right to attempt to contact her attorney was frustrated. (Footnote omitted.)
    While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.
 
Turley v. Commonwealth (Ky. App., 2012) JULY 13, 2012
In the instant case, Turley was charged with fleeing or evading the police in the first degree, as codified in Kentucky Revised Statutes (KRS) 520.095.
A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720;
2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010;
3. The person is driving while his or her driver’s license is suspended for violating KRS 189A.010; or …..
 
Gabbard v. Commonwealth (Ky., 2012) April 12, 2012 2010-SC-000764-MR.PDF
At trial, over Appellant’s objection, the Commonwealth introduced evidence of the statutory presumption of intoxication contained in KRS 189A.010 through the testimony of Dr. Jennifer Schott. The Commonwealth asked Dr. Schott if she was aware that the blood/alcohol limit for driving a car is .08, and that Appellant’s blood/alcohol level of .14 at the time of the shooting was 75% higher than that limit. Dr. Schott answered affirmatively as to the .08 limit, but said that she could not do the math for the percentage calculation. The Commonwealth also referred to the presumption in its closing argument, saying that Appellant "was intoxicated with a .14 blood/alcohol level which is nearly double the legal limit for a DUI in Kentucky. That is wanton behavior if I’ve ever seen it."
Evidence of the statutory presumption of intoxication contained in KRS 189A.010 should not be admitted in any case other than one involving misdemeanor charges for driving under the influence (DUI). Walden v. Commonwealth, 805 S.W.2d 102 (Ky. 1991) (overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996)). See also Overstreet v. Commonwealth, 522 S.W.2d 178 (Ky. 1975); Cormney v. Commonwealth, 943 S.W.2d 629 (Ky. App. 1996). On appeal, the Commonwealth concedes that admission of the statutory presumption was error. Accordingly, it was an abuse of discretion to admit this evidence. However, because we are reversing this case on other grounds, we do not address whether the error was harmless.
Accordingly, we reverse Appellant’s conviction for wanton murder and remand the case to the Estill Circuit Court for further proceedings in accordance with this opinion.
Minton, C.J.; Abramson, Cunningham, Noble, Schroder and Venters, JJ., concur. Scott, J., dissents and states: I would affirm the judgment of the trial court for two reasons. First, the evidence regarding the Furby incident was highly probative against Appellant’s defense that the shooting was an innocent accident, and thus its probative value outweighed any prejudicial effect. Second, the trial court’s error in admitting evidence regarding the statutory presumption of intoxication was harmless given the remainder of Dr. Schott’s testimony that Appellant was impaired.
 
Ferguson v. Commonwealth (Ky. App., 2011)JUNE 24, 2011 2010-CA-001031
At issue here is KRS 189A.105(3) which states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
KRS 189A.105(3). Since the proper interpretation of KRS 189A.105(3) is purely a legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178,  181 (Ky.App. 2003). As noted in Long:
On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment . . . or to attempt to cure any omissions.
We also disagree with the circuit court’s statement that Ferguson had the opportunity to use her cell phone to contact her attorney while in Trooper Maupin’s cruiser. Ferguson was informed of her right under KRS 189A.105(3) after she exited the cruiser and did not have access to her cell phone. Without Ferguson’s being informed, i.e., knowing of her right prior to the loss of her cell phone, she could not waive her right under KRS 189A.105(3). See Delacruz v. Commonwealth, 324 S.W.3d 418, 420 (Ky.App. 2010). Moreover, the right contained in KRS 189A.105(3) is limited to "the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes . . . ." KRS 189A.105(3). Thus, the circuit court incorrectly determined that Ferguson’s ability to use her cell phone while in the cruiser satisfied her right under KRS 189A.105(3).
In addressing the second issue, whether the violation requires suppression, we review KRS 189.105(3). That statute states, "Inability to communicate with an attorney during this period [preceding the tests] shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal." Certainly the inability of Ferguson to contact and communicate with an attorney did not relieve her of the obligation to undergo the tests. However, it is just as certain that the sentence preceding the above-quoted sentence granted Ferguson the right to communicate with an attorney,3 and by virtue of state action Ferguson’s right to attempt to contact her attorney was frustrated.
While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.
In light of the aforementioned, we reverse the circuit court’s affirmance of the district court’s denial of Ferguson’s motion to suppress and remand this matter for further proceedings not inconsistent with this opinion.
 
Commonwealth v. Cline (Ky. App., 2012) MARCH 23, 2012 2011-CA-000219
Turning to the case before us, we must hold that the district court properly denied Cline’s motion to suppress, and that the circuit court incorrectly reversed that ruling. To be sure, this matter was initiated by an anonymous tip identifying a person operating a motorcycle heading in the direction of Horse Cave wearing a black leather coat as being intoxicated. In and of itself, the tip would certainly not be reliable or provide any reason for Officer Henry to have stopped Cline. However, coupled with Officer Henry’s observation of erratic driving, which he described as consisting of abrupt starts and speed changes, we must hold that there was sufficient reason for Officer Henry to initiate the investigatory stop. In reversing the district court’s ruling denying the motion to suppress, the circuit court appears to have substituted its own judgment for that of the district court. The circuit court went too far in requiring the Commonwealth to provide "specific information concerning the nature, number or location of the abrupt starts and speed changes." Furthermore, we disagree with the circuit court’s statement that Officer Henry did not observe any traffic violation or criminal offense, or that he did not see anything that would constitute a danger to other individuals. Rather, Cline’s erratic driving certainly could form the basis for Officer Henry’s belief that he was driving impaired. Therefore, we hold that the district court properly denied Cline’s motion to suppress and that the circuit court should have affirmed that ruling.
For the foregoing reasons, the opinion and order of the Hart Circuit Court is reversed, and this matter is remanded for reinstatement of the Hart District Court’s judgment of conviction.
 
LawReader Note: In this case the Supreme Court overruled the Ct. of Appeals and limited the plea bargaining power of prosecutors…but the court did not consider the constitutional question of whether or not the legislature could limit the power of the prosecutor to plea bargain as a separation of powers issue…
 
Commonwealth v. Lamberson, No. 2008-CA-000763-MR (Ky. App. 1/15/2010) (Ky. App., 2010)
      Though we hold the Bullitt District Court abused its discretion in accepting Lamberson’s guilty plea in absentia, that is not the end of our inquiry. The Commonwealth also contends Lamberson waived the opportunity to challenge the 2000 conviction by allowing the Commonwealth, without objection, to use that same conviction to enhance DUI convictions in both 2001 and 2002. The Commonwealth maintains the same restrictions applicable to attacking a prior conviction for PFO purposes should apply to enhancement of a DUI offense under KRS 189A.010.
     ….Since Lamberson did not question the validity of his conviction for DUI, first offense, until he was charged with DUI, fourth offense, a felony, the Commonwealth argues the time for Lamberson to question the validity of the 2000 conviction has long since expired.
      Tipton was rendered by this Court in 1989, more than a decade before Lamberson’s guilty plea was entered in absentia in Bullitt County. Similarly, RCr 8.28(4) was amended in 1999 to permit entry of a guilty plea in absentia to a DUI offense, but only upon execution of a written waiver of the right to be present. Thus, Lamberson had full opportunity to challenge his 2000 conviction for DUI, first offense, before pleading guilty to a charge of DUI, second offense, in 2001. For reasons known only to him and to his attorney, he did not do so and we hold that failure to be fatal on the strength of Howard and Hodges. We are convinced there is no practical difference in challenging a prior conviction the Commonwealth seeks to use for enhancement purposes whether the prosecution occurs under KRS 189A.010 or KRS 532.080. Thus, a challenge to the validity of a prior conviction offered for enhancement purposes under either statute must be made before the prior offense is successfully used to enhance a conviction. Having failed to attack his 2000 conviction in 2001, prior to pleading guilty to DUI, second offense, he may not launch such an attack now.
        For the reasons expressed above, we reverse the Jefferson Circuit Court’s order suppressing Lamberson’s 2000 conviction for DUI, first offense, and remand the matter to the trial court for further proceedings consistent with this opinion
 
Sigretto v. Commonwealth, No. 2009-CA-000691-DG (Ky. App. 4/16/2010) (Ky. App., 2010)
   Though Sigretto’s motion was styled as a "Motion to Dismiss Refusal," it is properly characterized as a motion to exclude evidence of her refusal. KRS 189A.105 makes this clear at section (2)(a)(1) by stating 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 [the DUI statute] . . . ." (Emphasis added). Evidentiary rulings are reviewed under an abuse of discretion standard. Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. The Owen District Court’s denial of Sigretto’s motion was properly based on KRS 189A.105, and was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. The Owen Circuit Court properly so found. Accordingly, we find no error.
 
 
Tejeda v. Commonwealth, No. 2008-CA-000663-DG (Ky. App. 11/25/2009) (Ky. App., 2009)
    The district court found that Tejeda was not in actual physical control of an operable vehicle; therefore, he could not be convicted under KRS 189A.010 for Driving Under the Influence. The district court dismissed that charge. Also, because "KRS 189.450 clearly states that the prohibition in that statute does not apply when a vehicle has become disabled in the right-of-way to such an extent that it is impossible to avoid parking on the shoulder of the road," the district court dismissed the charge of Improper Parking. Consequently, all charges before the district court were dismissed.
        Similar to White, the Officers in this case were not aware of the timing of the alcohol consumption, and that is certainly a debatable question. However, given (1) the earlier complaint of a vehicle matching Tejeda’s driving erratically; (2) Officer Curry witnessing Tejeda’s vehicle being pushed to the side of a road by a semi-tractor trailer; (3) Officer Foster’s belief that he smelled alcohol on Tejeda’s breath when he first approached him; (4) Officer Curry’s detection of alcohol on Tejeda’s breath; and (5) considering the totality of the circumstances, there existed reasonable suspicion of criminal activity necessary to justify the questioning of Tejeda, administering sobriety tests to him, and the subsequent arrest. Thus, we agree with the circuit court that probable cause existed for the officers to believe that Tejeda had operated the vehicle while under the influence. It will be up to a jury to determine whether or not it believes the evidence shows beyond a reasonable doubt that Tejeda was operating a motor vehicle while under the influence before it became inoperable.
      For the foregoing reasons, we affirm the circuit court and remand to the district court for further proceedings in accordance with this opinion
 
Sigretto v. Commonwealth, No. 2009-CA-000691-DG (Ky. App. 4/16/2010) (Ky. App., 2010)
   Though Sigretto’s motion was styled as a "Motion to Dismiss Refusal," it is properly characterized as a motion to exclude evidence of her refusal. KRS 189A.105 makes this clear at section (2)(a)(1) by stating 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 [the DUI statute] . . . ." (Emphasis added). Evidentiary rulings are reviewed under an abuse of discretion standard. Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. The Owen District Court’s denial of Sigretto’s motion was properly based on KRS 189A.105, and was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. The Owen Circuit Court properly so found. Accordingly, we find no error.
 
Com. v. Reynolds, 136 S.W.3d 442 (Ky., 2004)
   Pursuant to CR 76.37(10), the Commonwealth sought certification of the law on issues regarding Driving Under the Influence ("DUI") prosecutions of persons under the age of twenty-one, and this Court granted the certification request. The precise issue here is whether the Commonwealth may prosecute persons under the age of twenty-one years only under KRS 189A.010(1)(e), which creates a per se violation for having a significantly lower alcohol concentration than the standard per se violation, or whether the Commonwealth may elect to prosecute persons under twenty-one under the standard per se violation subsection, KRS 189A.010(1)(a). The Commonwealth claims detriment by being limited to prosecuting persons under the age of twenty-one solely under (1)(e) because no enhanced penalty for prior convictions can be imposed. KRS 189A.010(1)(a) requires proof of a higher alcohol concentration, but it also permits enhanced penalties if the defendant has prior DUI convictions. [136 S.W.3d 443]
        The relevant facts are as follows. On January 25, 2002, Respondent, Joshua Reynolds, was charged with DUI under KRS 189A.010. On February 12, 2002, Reynolds moved the trial court to dismiss the charges because the Commonwealth charged him under subsection (5)(a), which is not the charging subsection but rather the penalty subsection. The Commonwealth responded and moved to amend the charge, and proceed under KRS 189A.010(1)(a), (b), or (e). The parties stipulated the following facts: (1) on January 25, 2002, Reynolds was under the age of twenty-one; (2) Reynolds was charged with a violation of KRS 189A.010(1), first offense; and (3) Reynolds, while operating a vehicle in Kentucky, had an alcohol concentration of more than 0.08 percent.
        In November of 2002, the trial court held that the Commonwealth could not proceed pursuant to subsection (1)(a)1 against Reynolds, because he was under the age of twenty-one and for that reason the Commonwealth could only prosecute him for a per se violation under subsection (1)(e). The Commonwealth argued that Commonwealth v. Wirth2 allowed it to elect to prosecute under multiple subsections, but the trial court disagreed. On February 13, 2003, Reynolds entered a guilty plea under KRS 189A.010(1)(e), and was sentenced pursuant to KRS 189A.010(7) under the guidelines of KRS 189A.010(5) to a $250.00 fine and a 120-day license suspension.
        In this certification proceeding, the Commonwealth contends that it should be allowed to make the determination as to whether a person who is under the age of twenty-one should be prosecuted under the per se violation subsections (1)(a) or (1)(e). Reynolds argues that the Commonwealth must proceed under KRS 189A.010(1)(e) if the person is under twenty-one years of age. Reynolds further argues that following the amendment of KRS 189A.010 adding subsection (1)(e), the Commonwealth has been denied an election to prosecute underage offenders under subsection (1)(a). Both the Commonwealth and Reynolds agree that convictions under subsection (1)(e) cannot be used for enhancement purposes.
        The General Assembly amended KRS 189A.010 and subsection (1) now provides as follows:
        (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;
(b) While under the influence of alcohol;
(c) While under the influence of any other substance or combination of substances which impairs one’s driving ability;
(d) While under the combined influence of alcohol and any other substance which impairs one’s driving ability; or
(e) Having an alcohol concentration of 0.02 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 [136 S.W.3d 444] motor vehicle, if the person is under the age of twenty-one (21).3
        Subsection (1)(e) is known generally as the "Zero Tolerance" rule because it provides for a per se DUI violation for persons under the age of twenty-one for having modest levels of alcohol concentration. In combination with the amendment, the General Assembly also added subsections that focus on punishment and those subsections provide as follows:
        (6) Any person who violates the provisions of subsection (1)(e) of this section shall have his driving privilege or operator’s license suspended by the court for a period of no less than thirty (30) days but no longer than six (6) months, and the person shall be fined no less than one hundred dollars ($100) and no more than five hundred dollars ($500), or sentenced to twenty (20) hours of community service in lieu of a fine. A person subject to the penalties of this subsection shall not be subject to penalties established in subsection (5) of this section or any other penalty established pursuant to KRS Chapter 189A, except those established in KRS 189A.040(1).
        (7) If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.4
        Subsection (5) of KRS 189A.010 provides for harsher penalties than subsection (6), and with the second and subsequent violation successively harsher penalties.
        This Court has already upheld the validity of subsection (1)(e). In Commonwealth v. Howard,5 we held that KRS 189A.010(1)(e) was not unconstitutional as such it "does not violate the Fourteenth Amendment to the United States Constitution because it is rationally related to a legitimate state purpose."6 In Commonwealth v. Wirth,7 we addressed the issue of "whether the Commonwealth must elect under which section of KRS 189A.010(1) it intends to proceed."8 In that case, the Commonwealth desired to prosecute under subsections (1)(a) and (1)(b). It was determined that the newly created per se subsection "[did] not create a new or separate offense, but merely provide[d] an additional means by which a motor vehicle alcohol related offense may be committed."9 In Wirth, the Court allowed the Commonwealth to pursue a conviction on both the per se subsections and the "under the influence" subsection. In the interest of fairness we added a requirement that the Commonwealth provide sufficient notice to the defendant.
        While we do not agree with an interpretation that the statute or laws requires an election as to which of the four statutory subsections will be prosecuted to the exclusion of all others, it would appear that fundamental fairness and appropriate trial preparation requires notice as to which statutory subsections will be proven by the Commonwealth.10
        Accordingly, we held that the trial court erred by prohibiting the Commonwealth [136 S.W.3d 445] from pursuing a conviction under multiple sections of KRS 189A.010(1).
        Despite the central holding in Wirth that enactment of the per se violation provision did not create a new or separate offense but merely provided an additional means by which such an offense could be committed, the trial court believed Wirth did not apply in the case of offenders under the age of twenty-one who have an alcohol concentration of 0.02 or greater. On this point, the trial court may have been correct. With prosecutions for per se violations under (1)(a) and "under the influence" violations under (1)(b), there is a parallel purpose. That purpose is to punish alcohol-impaired operators of motor vehicles and a legislative determination has been made that 0.08 alcohol concentration and being under the influence each constitute impairment. KRS 189A.010(1)(e) is somewhat discordant in that it fixes the level of alcohol concentration at a low level and limits its application to persons who are under the age of twenty-one years. One could argue that (1)(e) is more intensely focused on the age of the offender than on impairment as the operator of a motor vehicle.
        How ever one analyzes the statute with respect to purpose, our role is to interpret the statutory language and determine the intent of the legislature as we answer the certified question of law. When interpreting statutes, it is the duty of this Court to ascertain and effectuate the intent of the legislature.11 We should not add or subtract from the statute, nor should we interpret the statute to provide an absurd result. The determination required by the statute here is whether subsections (1)(a) and (1)(e) are both applicable to persons under the age of twenty-one. The per se subsection (1)(e) applies only to persons under the age of twenty-one who have an alcohol concentration of 0.02 or more, and subsection (1)(a) applies to "person[(s)] … having an alcohol concentration of 0.08 or more …." There is no language in KRS 189A.010(1)(a) that limits its application to persons who are twenty-one years or more. To reach another conclusion would require the addition of language or the discovery of legislative intent not apparent from the enactment.
        Our conclusion that one who is under twenty-one may be prosecuted under subsection (1)(a) is strengthened by an analysis of the penalty provisions. The punishment for a conviction under subsection (1)(e) is contained in subsection (6), yet subsection (7), which is limited to persons under the age of twenty-one, directs punishment for an alcohol concentration of 0.08 or more under subsection (5). This directive reveals no intent of the legislature that persons under the age of twenty-one with an alcohol concentration of 0.08 or more be immunized from the severe penalties of subsection (5). While subsection (5) does not recognize a conviction under (1)(e) as punishable under that subsection, subsection (7) directs punishment of persons under twenty-one with an alcohol concentration of 0.08 or greater pursuant to subsection (5). Thus, it follows that the legislature intended for persons under the age of twenty-one who are convicted under (1)(a) to be punished under subsection (5) as is prescribed in subsection (7).
 
Veltrop v. Com., 269 S.W.3d 15 (Ky. App., 2008)
     Melissa Kay Veltrop entered a conditional plea of guilty to driving under the influence, first offense, in violation of Kentucky Revised Statutes (KRS) 189A.010. She reserved the issue of whether KRS 189A.010(2) is unconstitutional because, she alleges, it violates the separation of powers principle by unilaterally adopting amendments or additions to the Kentucky Rules of Evidence (KRE). We conclude that Veltrop has not suffered any injury by the application of the statute and thus lacks standing to challenge its constitutionality. Therefore, we affirm.
    Veltrop argues that KRS 189A.010(2) is unconstitutional because it violates the separation of powers principle set forth in the Kentucky Constitution. She refers to sections 27, 28, and 116 therein. Veltrop contends that KRS 189A.010(2) is an encroachment by the legislature on the power of the judicial branch to make rules for practice and procedure in the courts.
    [T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural’ or `hypothetical.’" Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." (citations omitted)
    In order for a person to be guilty of violating KRS 189A.010(1)(a), he or she must have been operating or in physical control of a motor vehicle in this state and must have had a blood alcohol concentration of 0.08 or more as registered by a scientifically reliable test or tests of his or her breath or blood taken within two hours [269 S.W.3d 18] of his or her cessation of operation or physical control of a motor vehicle. See Lopez v. Commonwealth, 173 S.W.3d 905, 908 (Ky.2005). Furthermore, the two-hour limit in KRS 189A.010(1)(a) is an element of the offense. Id. at 909. It is not a rule of evidence.
        Veltrop contends that KRS 189A.010(2), which states that breath or blood test results taken more than two hours following the cessation of the operation or physical control over a vehicle are inadmissible, is unconstitutional as a rule of evidence which violates the separation of powers principle. While this portion of the statute may be unconstitutional as a rule of evidence,3 we fail to see how Veltrop has standing to challenge it. See Lujan, supra; Akers, supra.
        Veltrop’s test result was obtained well within the two-hour limit that is set forth as an element of the offense in KRS 189A.010(1)(a). Because the test result was within that time period, KRS 189A.010(2) had no relevance or application to her case. She therefore could not have suffered any injury or harm. See also Second St. Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 716 (Ky. 1969); Merrick v. Smith, 347 S.W.2d 537, 538 (Ky.1961)("It is an elementary principle that constitutionality of a law or its application is not open to challenge by a person or persons whose rights are not injured or jeopardized thereby.")
        The judgment of the Barren Circuit Court is affirmed.
 
Smith v. Com., 164 S.W.3d 508 (KY, 2005)
        On January 10, 2001, a Kentucky State Police officer stopped Smith after observing his vehicle cross a highway centerline and then veer to the fog line. The officer gave Smith various field sobriety tests, all of which he failed. The officer arrested Smith and gave him an Intoxilyzer test, which measured.088. Smith was charged with violating KRS 189A.010(5)(a), operating a motor vehicle under the influence of alcohol/drugs, first offense.
   First, we note that Smith’s discovery request, set out above, did not ask the Commonwealth to specify under which subsection of KRS 189A.010(1) it would proceed. Thus, the sole issue on appeal is whether the Commonwealth was required to notify Smith of the subsection(s) of KRS 189A.010(1) under which it would proceed, even though Smith did not request the information.
       Even if we were to agree that the Commonwealth did not technically and explicitly give notice as to the subsections of KRS 189A.010(1) under which it intended to prosecute Smith, we believe the facts of this case are such that any error was harmless. Under RCr 9.24, any error or defect must be disregarded if it "does not affect the substantial rights of the parties." An error is deemed harmless if, upon consideration of the entire case, there appears to be no likely possibility that the result would have been different in the absence of error. Scott v. Commonwealth, Ky., 495 S.W.2d 800, 801-02 (1972); Abernathy v. Commonwealth, Ky., 439 S.W.2d 949, 952 (1969), overruled in part on other grounds by Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983). Our review of the record shows that the Commonwealth’s omission did not in any way prejudice Smith’s opportunity to prepare a meaningful defense, and that no likely possibility exists that Smith’s defense or the result of the trial would have been any different had the Commonwealth more specifically informed him under which subsection(s) it was proceeding.
        The circuit court’s judgment is affirmed.
 
Com. v. Mattingly, 98 S.W.3d 865 (Ky. App., 2002)
      The Commonwealth brings this matter on discretionary review from an opinion and order of the Marion Circuit Court which set aside a conditional guilty plea entered by Joseph Corey Mattingly to the charge of driving under the influence (DUI), first offense.1 The Commonwealth asserts that when it elects to prosecute a DUI charge under KRS 189A.010(1)(a), a defendant may not present any evidence attempting to prove that he or she was not under the influence of alcohol. Rather, the Commonwealth contends that the defendant’s blood- or breath-alcohol concentration is the primary relevant factor in such a prosecution. We agree with the circuit court, however, that Mattingly was entitled to present any evidence which tended to impugn the results of the breath- and blood-alcohol concentration test, including evidence of his performance on field sobriety tests. Hence, we affirm the circuit court and remand for further proceedings.
     KRS 189A.010(1)(a) creates a criminal offense for operating a motor vehicle while having an alcohol concentration of .10 or above, regardless of available evidence that the accused is not under the influence of alcohol. This is commonly referred to as "per se under the influence." With this reading in evidence, the Commonwealth doesn’t need to go further, nor can the defense introduce evidence to show the defendant was not under the influence . That issue becomes irrelevant as the content of .10 or more in and of itself, becomes the crime, unlike in Allen v. Commonwealth, Ky. App., 817 S.W.2d 458 (1991). As such, the .10 alcohol concentration becomes an element of the crime, not merely evidence of a DUI.
        Following this Court’s decision in King, many defendants read this language as requiring the Commonwealth to elect to prosecute DUI cases under a specific section of KRS 189A.010(1). Defendants contended that if such an election were not required, they could not make a reasonable decision concerning what evidence to present in rebuttal. Indeed, defendants further asserted that if they guessed wrong and prepared a defense based upon other sections of KRS 189A.010(1), that evidence could be excluded as irrelevant under the per se provisions of subsection (1)(a). Thus, they argued that due process required either that the Commonwealth make an election if it intended to prosecute the charge as a DUI per se, or that they be permitted to present evidence supporting a defense under any provision of KRS 189A.010(1).
        Our Supreme Court rejected this argument in Commonwealth v. Wirth,10 holding that the Commonwealth is not required to make such an election. Rather, the Court held that the Commonwealth is entitled to present evidence of DUI on all grounds where there is evidence to support a conviction. The Supreme Court went on to address the elements required to prove DUI per se, citing with approval a portion of the above discussion in King. However, the Court did not include the language from King opining that any evidence showing that the defendant was not under the influence is irrelevant in a prosecution for DUI per se.
        We have now come full circle, with the Commonwealth arguing that it is entitled to make an election concerning under which section of KRS 189A.010(1) it will proceed, and moving to exclude any evidence which might be admissible as a defense under other sections of the statute. Nevertheless, the sole issue presented for our consideration is the relevancy of evidence in a prosecution for DUI per se. Relevant evidence is defined by KRE 401 as:
        evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
        It has been observed that evidence is relevant which "renders a material ultimate fact more probable or less probable than it would be without the item." Stated differently, evidence that tends to prove or disprove an element of a criminal offense is "of consequence to the determination of the action" and, thus relevant.
  King and Wirth both correctly state that there are only two elements necessary to prove DUI per se. The controlling issue on the second element is whether a defendant has a blood- or breath-alcohol content of .10 or higher. In addition, KRS 189A.010 also sets out rebuttable presumptions regarding blood- and breath-alcohol readings in prosecutions under KRS 189A.010(1)(b) or (d). But there is no such presumption when the blood or breath-alcohol reading is .10. Rather, evidence of a reading of .10 or higher or above would establish the completed offense of DUI per se under KRS 189A.010(1)(a). It follows logically that a defendant cannot rebut a breathalyzer reading of .10 or higher by attempting to prove that he was not actually impaired at the time.
   Thus, we conclude that evidence concerning alcohol intoxication can constitute circumstantial proof impugning the accuracy of the blood and breath-alcohol concentration tests. Since a jury is entitled to draw reasonable inferences from circumstantial evidence,17 such evidence is relevant because it makes less probable a material element of DUI per se — whether the accused’s blood- or breath-alcohol concentration was .10 or higher. Therefore, the circuit court properly set aside the district court’s holding excluding the evidence of mattingly’s performance on the field sobriety tests.
        Accordingly, the judgment of the Marion Circuit Court is affirmed and this matter is remanded to the Marion District Court for further proceedings consistent with this opinion.
 
Com. v. Gaitherwright, 70 S.W.3d 411 (Ky., 2002)
     Pursuant to Ky. Const. § 115 and CR 76.37(10), the Commonwealth has petitioned this Court for a certification of the law regarding the following issue: Whether the refusal to submit to a breath, blood or urine test on a first offense DUI charge is an aggravating circumstance under KRS 189A.010(11)(e) which, if found to have occurred, subjects the defendant to enhanced penalties pursuant to KRS 189A.010(5)(a).
        In October 2000, Respondent, Joseph Gaitherwright, was charged with Driving While Under the Influence, first offense, KRS 189A.010(1)(b). Respondent refused to submit to a breath, blood or urine test. Consequently, prior to trial, the Commonwealth moved the Kenton District Court for a ruling that Respondent’s refusal to consent to testing required an instruction that his actions constituted an aggravating circumstance which would subject him to enhanced penalties. The trial court denied the motion based on the literal language of KRS 189A.010(5)(a), and ruled that first time DUI offenders are not subject to enhanced penalties for the refusal to submit to breath, blood or urine testing. The trial court reasoned that the act of refusal is not contemporaneous with the act of operating the motor vehicle. A Kenton County jury found Respondent guilty of DUI, first offense, and imposed a monetary fine of $300.
        Effective October 1, 2000, KRS 189A.010 was amended to provide that "[r]efusing to submit to any test or tests of one’s blood, breath or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section" is an aggravating circumstance. KRS 189A.010(11)(e). KRS 189A.010 (5)(a) sets forth the effect an aggravating circumstance has on a first time DUI offender:
        If any of the aggravating circumstances listed in subsection(11) of this section are present while the person was operating or in physical control of a motor vehicle, the mandatory minimum term of imprisonment shall be four (4) days, which term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release.
        The controversy results from the language in subsection (5)(a) that requires the aggravating circumstance to have occurred "while the person was operating or in physical control of a motor vehicle…." Such language is not present in subsections (5)(b)-(d) dealing with successive [70 S.W.3d 413] DUI offenses. Thus, the Kenton District Court embraced the literal language of KRS 189A.010(5)(a) in ruling that first time DUI offenders cannot be subjected to enhanced penalties for the refusal to submit to testing because such could not occur simultaneously with operating the motor vehicle.
        The interpretation of a statute is a matter of law. "As with any case involving statutory interpretation, our duty is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education, Ky., 873 S.W.2d 575, 577 (1994). An appellate court is not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used. Commonwealth v. Frodge, Ky., 962 S.W.2d 864, 866 (1998). Further, it is neither the duty nor the prerogative of the judiciary to breathe into the statute that which the Legislature has not put there. Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962).
        In amending KRS 189A.010, the Legislature unquestionably intended to create enhanced penalties for a defendant’s refusal to submit to an officer’s request for breath, blood or urine testing. However, it is clear from the plain language of subsection (5)(a), to the effect that any aggravating circumstance must be "present while the person was operating or in physical control of the motor vehicle," that the Legislature intended to exempt first time offenders who refuse testing from an aggravated sentence. This is the most logical and rational interpretation of the statute because the refusal cannot occur simultaneously with the operation of a motor vehicle. The testing occurs at the site where the breathalyzer is located.
        Contrary to the Commonwealth’s position, a literal interpretation of KRS 189A.010(5)(a) does not permit a first time DUI offender to refuse testing with impunity. The consequences for refusing to submit to an officer’s request for a blood, breath, or urine test include an automatic suspension of one’s driver’s license regardless of whether there is ultimately a conviction for the underlying offense (KRS 189A.105); a duty of the prosecutor to oppose any amendment of the DUI charge to a lesser offense (KRS 189A.120); and a denial of hardship privileges (KRS 189A.410). Subsection(5)(a), in providing that the aggravating circumstance must occur while the person was operating or in physical control of the vehicle, simply excludes the refusal to submit to testing from the aggravating circumstances applicable to a first offense DUI.
        Had the Legislature intended for first-time DUI offenders who refuse testing to be subject to aggravated penalties, it certainly would have used consistent language throughout KRS 189A.010(5). Indeed, legislative intent is clearly discernable by the different phraseology adopted in subsection (5)(a) as opposed to subsections (5)(b)(d). which apply to subsequent offenders. Since mandatory jail time is not required for a non-aggravated first offense, it is reasonable to conclude that the Legislature declined to authorize jail time for a first-time offender whose only aggravating circumstance was the refusal to submit to testing. It is important to note that KRS 189A.010(11)(e) is the only aggravating circumstance that does not pose a threat to other citizens using the highways.1 Unquestionably, [70 S.W.3d 414] the other five enumerated aggravators, which do involve a danger to others, apply to first and subsequent offenders alike.
        The cardinal rule of statutory construction is "to ascertain the intention from the words employed in enacting the statute and not to guess what the Legislature may have intended but did not express. Resort must be had first to the words, which are decisive if they are clear." Gateway Construction Co., supra, at 249 (citations omitted). Here, the statute is not ambiguous and there is no obvious omission. The language of KRS 189A.010(5)(a) is clear, and when read in conjunction with subsections (5)(b)-(d), it plainly exempts first-time DUI offenders from aggravated penalties for failure to submit to blood, breath or urine testing.
        The law is so certified.
 
Com. v. Beard, 275 S.W.3d 205 (Ky. App., 2008)
     On August 17, 2006, the Calloway Circuit Court vacated Dustin Beard’s plea of guilty to driving under the influence, second offense (hereinafter DUI 2nd), entered in the Calloway District Court. Beard had previously been charged with driving under the influence, first offense, but had not been convicted of that offense when he was charged with the second. The circuit court held that he could not be charged with DUI 2nd since he had not been convicted of the earlier DUI charge at the time of his arrest for the second offense. The Commonwealth appeals from this decision. After our review, we are compelled to affirm.
        On May 5, 2006, Beard was arrested and charged with driving under the influence, first offense (DUI 1st). Three weeks later, on May 26, 2006, Beard was again arrested for driving under the influence [275 S.W.3d 206] and was charged with DUI 2nd and reckless driving. At the time of his second arrest, Beard had not been convicted on the DUI charge of May 5. The classification of a DUI offense as DUI 1st or 2nd is significant due to the potential for enhanced penalties associated with the latter charge. See, e.g., Kentucky Revised Statutes (KRS) 189A.010(5)(b) & (8).
 
Cornelison v. Com., 52 S.W.3d 570 (Ky., 2001)
    The 1998 amendment to KRS 189A.010(4)(c) was in response to the serious and growing societal problem of drunk diving. In amending KRS 189A.010(4)(c), the Legislature was obviously concerned not only with the danger to society created by repeat DUI offenders, but also about the level of intoxication of those drivers. Cornelison argues that if the purpose of the statute was to protect the public from potential harm inflicted by drivers with an intoxication level of 0.18 or more, then all offenders whose blood alcohol content reaches such level should be subject to the increased penalties. Undisputedly, the Legislature did not impose greater sanctions for second-time offenders who are caught driving with the higher level of alcohol in their system. However, as we stated in Howard, supra, a statute does not have to be perfect to pass constitutional muster. At the time of the 1998 amendment, the Legislature evidently believed that the sanctions for second-time offenders, as well as fourth-time and subsequent offenders, were severe enough. Unquestionably, the discretion to define the level of harm and the appropriate punishment is within the purview of the Legislature, not this Court. Mullins v. Commonwealth, Ky.App., 956 S.W.2d 222 (1997).
        In Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 548 (2000), we stated that "[t]he rational basis argument can be paraphrased as `Is there a good reason to adopt a law?’ The answer is a stunningly simple `yes.’ The legislature has broad discretion to determine what is harmful to the public health and welfare." There is nothing inherently unfair in treating the same class of multiple offenders differently based on their level of intoxication. Thus, we conclude that the trial court and the Court of Appeals were correct in holding that a rational basis existed for the 1998 amendment to KRS 189A.010(4)(c).
Case No. 2000-SC-0813-TG
        Appellant, Donald Decker, was indicted in July 1999, on one count of operating a vehicle while under the influence of alcohol, third offense, a class D felony, and one count of operating a motor vehicle while license is suspended or revoked for driving while under the influence, a class A misdemeanor. At the time of his arrest, Decker’s blood alcohol content was over 0.18. Decker moved the Jefferson Circuit Court to declare KRS 189A.010(4)(c) unconstitutional as an arbitrary exercise of the Commonwealth’s police power. In March 2000, the trial court issued an order holding KRS 189A.010(4)(c) unconstitutional as a violation of both the United States and Kentucky Constitutions. The Commonwealth appealed and the Court of Appeals thereafter recommended transfer to this Court.
        The essential questions raised in this case regarding the constitutionality of KRS 189A.010(4)(a) as it existed at the time of Decker’s offense have been answered as it applies to Cornelison’s case, to the effect that the 1998 statute was constitutional. As such, the Jefferson Circuit Court erred in holding the statute unconstitutional.
 The essential questions raised in this case regarding the constitutionality of KRS 189A.010(4)(a) as it existed at the time of Decker’s offense have been answered as it applies to Cornelison’s case, to the effect that the 1998 statute was constitutional. As such, the Jefferson Circuit Court erred in holding the statute unconstitutional.
        The decision of the Court of Appeals in Case No. 2000-SC-0646-DG is hereby affirmed.
        The order of the Jefferson District Court in Case No. 2000-SC-0813-DG is hereby vacated and the case is remanded for further proceedings.
 
Whitehouse v. Commonwealth, 2003 KY 230 (KYCA, 2003)
    The sole issue in this appeal is the constitutionality of the 1998 version of KRS 189A.010(4)(a). Appellant argues that the penalty enhancement provision of the statute applicable to those with an alcohol concentration of 0.18 or higher violates due process and equal protection because it is arbitrary, it penalizes those drivers who submit to blood alcohol testing, and it does not apply to those drivers intoxicated as a result of substances other than alcohol. In light of our Supreme Court’s decision in Cornelison v. Commonwealth, Ky., 52 S.W.2d 570 (2001), wherein the Court upheld the constitutionality of the enhancement provision for third time offenders with an alcohol concentration of 0.18 or higher in the 1998 version of KRS 189A.010(4)(c), we affirm the Marion Circuit Court’s determination that KRS 189A.010(4)(a) is constitutional.
 
Little v. Commonwealth, No. 2007-SC-000610-MR (Ky. 4/23/2009) (Ky., 2009)
    Appellant’s last allegation of error is that the trial court erred by allowing the results from a blood test taken three hours after the car accident to be admitted into evidence. The blood test indicated that Appellant’s blood alcohol level was 0.29%. Appellant argues that this admission was error because KRS 189A.010(2) prohibits the admission of blood tests taken over two hours from the initial arrest to be used to determine blood alcohol level as evidence for a prosecution under KRS 189A.010(l)(a) or (e). However, KRS 189A.010(2) clearly states that blood tests taken after two hours are admissible in prosecutions under KRS 189A.010(l)(b) or (d).
        The trial court found that the blood test was admissible because the Commonwealth was prosecuting Appellant under KRS 189A.010(l)(b). To that extent, the trial court ordered that no jury instruction would be given on KRS 189A.010(l)(a). The trial court’s ruling was correct, and on retrial the results of Appellant’s blood test are admissible as part of a prosecution under KRS 189A.010(l)(b).
        For the foregoing reasons the judgment and sentence of the Meade Circuit Court is reversed and this matter is remanded for a new trial.
 
Love v. Com., 55 S.W.3d 816 (Ky., 2001)
   Nor was it error to admit the results of the urinalysis. KRS 189A.005(1) defines "alcohol concentration," the key term in finding a driver in violation of KRS 189A.010(1)(a), in terms of milliliters of blood or liters of breath. Appellant argues that since the definition does not include urine, it was error to admit the urine sample test results. However, the failure of KRS 189A.005(1) to mention urine does not affect the admissibility of urine sample evidence to prove guilt under KRS 189A.010(1)(b). We need not decide whether a jury could convict Appellant of violating the "per se" section of the statute, KRS 189A.010(1)(a), based on the results of a test of his urine sample; for this evidence was relevant in determining whether he was guilty of violating the "under the influence" section of the statute, KRS 189A.010(1)(b). The jury was instructed on both statutory bases of guilt. We also note that urine tests are contemplated by KRS 189A.103(1), (3), and (5).
 
 
Jones v. Commonwealth, No. 2006-SC-000802-DG (Ky. 3/19/2009) (Ky., 2009)       
The Court of Appeals concluded that KRS 189A.120(1) only prohibited the Commonwealth from agreeing to a defendant’s motion for a reduction in charges while leaving the Commonwealth free to file its own motion to reduce the DUI charges. We do not share this impermissibly narrow construction of the word agree.
      And we see no indication in the plain language of KRS 189A.120(1) that would cause us to conclude that the Commonwealth is only prohibited from concurring in a defendant’s motion to amend a DUI charge while remaining free to seek such an
        This case is unusual in that the amendments the Commonwealth successfully sought did not appear to reduce the overall possible sentence Jones faced. But KRS 189A.120 contains no escape hatch for the Commonwealth, and a longstanding rule in this Commonwealth prohibits a court from judicially creating and grafting exceptions onto a statute when the General Assembly did not see fit to do So.14 So we may not graft a judicially created exception onto the simple and plain language of KRS 189A.120(1) to permit the Commonwealth to agree to the reduction of DUI-related charges so long as the reduction would not reduce a defendant’s possible sentence. Although it is possible that the General Assembly may have intended only for the Commonwealth to refuse to accede to a reduction that would have lessened a defendant’s ultimate sentence, we must construe the statutes as enacted; and we may not "speculate what the General Assembly may have intended but failed to articulate…."
CUNNINGHAM, J., DISSENTING:
        I respectfully dissent. This Court ignores the unique prerogatives of the prosecutor within our legal framework. In Flynt v. Commonwealth, this Court stated that "it is beyond dispute that the executive branch’s prosecutorial function includes `the decision whether or not to prosecute, and what charge to file or bring before a grand jury[.]"’ 105 S.W.3d 415, 424 (Ky. 2003), quoting Commonwealth v. McKinney, 594 S.W.2d 884, 888 (Ky.App. 1979), in turn quoting Bordenkircher v. Haves, 434 U.S. 357 (1978). Further, in Hoskins v. Maricle, this Court recognized that "an `independent’ motion by a prosecutor to dismiss or amend an indictment must be sustained unless clearly contrary to manifest public interest." 150 S.W.3d 1, 24 (Ky. 2004) (citation omitted). In this case, the Commonwealth did not act contrary to the public’s interest in amending the charge. In fact, it amended the charge so as to seek a more severe penalty than would have been available otherwise. Further, the Commonwealth clearly had the authority to seek this combination of charges in the initial indictment.
        The language of KRS 189A.120(1) prevents the prosecutor from agreeing to a request to amend the DUI charge. Further, it mandates that the prosecutor oppose a defense motion to amend the charge to a lesser offense. However, the language in KRS 189A.120 does not expressly prohibit a prosecutor from exercising independent discretion and seeking a more severe penalty under these circumstances. Further, in light of the prosecutor’s authority set out above, such action falls squarely within the authority reserved to the prosecutor. In turn, once the Commonwealth exercises its authority in seeking to prosecute the facts under an offense other than a "fourth or subsequent offense," the language of KRS 189A.010(5) (d) has no application. Neither do I agree with the majority’s understanding of "agree." It is clear from its reading that the whole purpose of KRS 189A.020(1) is to prohibit the defendant from procuring a reduced charge through plea negotiations. Otherwise, it would have been a simple matter for the legislature to have written that "a prosecuting attorney shall not move to amend the charge to a lesser offense……
        For these reasons, I cannot join the majority opinion.
 
Smith v. Commonwealth, No. 2007-CA-002506-MR (Ky. App. 2/6/2009) (Ky. App., 2009)
      Smith now argues that he cannot be convicted of DUI, fourth offense, because he did not have three prior convictions on the date that he was cited for his third DUI. This argument, however, is completely devoid of merit in light of both our holding Royalty v. Commonwealth, 749 S.W.2d 700 (Ky.App. 1988) and the plain language of KRS 189A.010(5)(e).
        In Royalty, this Court held that it was the date of conviction not citation that controls when applying the enhancement provisions of KRS.189A.010. Royalty, 749 S.W.2d at 701. Moreover, KRS 189A.010(5)(e) states that:
        [f]or purposes of this subsection, prior offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability, or any combination of alcohol and such substances, or while having an unlawful alcohol concentration, or driving while intoxicated, but shall not include convictions for violating subsection (1)(e) of this section. A court shall receive as proof of a prior conviction a copy of that conviction, certified by the court ordering the conviction.
    The plain meaning of the statute seems to make the actual number of prior convictions, not the numerical characterization given to the offense for which a defendant is convicted, the relevant consideration. Whether a prior conviction has been denominated by the convicting court as a second or third offense is of no importance. So long as a defendant has actually been convicted of DUI on three prior occasions within five years, as is the case with [Smith], he can be convicted of DUI fourth offense.
 
Carroll v. Commonwealth, No. 2007-SC-000613-TG (Ky. 1/22/2009) (Ky., 2009)
 To be in violation of KRS 520.095(1) (a) under the "impairment" theory, the Commonwealth must prove that the person is driving under the influence of a substance or combination of substances which impairs one’s driving ability. KRS 189A. 010(1) (c). Appellant concedes he was "under the influence" of methamphetamine, but argues there was no direct proof that the drug impairs one’s driving ability. We have explained what proof is necessary in such instances:
        We take as legislative facts that: 1) alcohol (or other substances) may impair driving ability; and 2) a driver actually under the influence of such substances is impaired as a driver, conclusively, and presents a danger to the public. Proof that a driver was "under the influence" is proof of impaired driving ability.
        Bridges v. Com. 845 S.W.2d 541 1993(emphasis in original). See also Hayden v. Commonwealth, 766 S.W.2d 956, 956-57 (Ky. App. 1989) (explaining that KRS 189A.010(1), concerning driving while under the influence of alcohol, would "be redundant if read so as to require proof not only that the defendant was under the influence of alcohol but also that alcohol impairs one’s driving ability"). Driving errors, such as those described by Landrum and Trooper Jewell, are not indispensable to a claim of impairment, though they are further evidence of such impairment. Bridges, supra. The evidence was sufficient to support a finding of guilt under either the "impairment" theory of fleeing in the first-degree, or the "risk of harm" theory. As such, there is no unanimity problem.Davis. v. Com. 967 S.W. 2d 574 – 1998.
 
Stump v. Commonwealth, No. 2007-CA-001762-DG (Ky. App. 1/16/2009) (Ky. App., 2009)
The PBT result was a 0.078 blood alcohol level,2 just below the legal limit of 0.08 as found in KRS 189A.010(1)(a). The officer thereafter arrested Stump for driving under the influence (DUI).
        After Stump was arrested, the officer transported him to a local hospital for a blood alcohol test. The blood test showed Stump had a blood alcohol content of 0.09. Prior to trial, Stump moved the Fayette District Court for leave to present his PBT result as exculpatory evidence. In his motion, Stump acknowledged KRS 189A.104(2) rendered the result of a PBT inadmissible in court. He argued, nonetheless, the statute was unconstitutional because it violated his due process right to present a defense and violated the doctrine of separation of powers.
        The Fayette District Court rejected Stump’s analysis, determined the statute rendered PBT results inadmissible, and denied his motion. Subsequently, Stump entered a conditional guilty plea reserving the right to appeal the denial of his motion.
        On appeal to the circuit court, Stump presented the same arguments regarding the constitutionality of KRS 189A.104(2). However, the circuit court ruled the statute was constitutionally valid, thus affirming Stump’s conviction. After the circuit court affirmed Stump’s conviction, he filed a motion for discretionary review with this Court. This motion was granted and upon review, we vacate and remand.
Greene cited KRS 189A.104(2) and claimed it rendered PBT results inadmissible for any purpose. The Court in Greene determined:
        KRS 189A.104 specifies that only the results from tests conducted with a stationary machine or blood or urine testing may be used for enhancement of penalties or when considering the punishment for refusing to submit to a breath test.        Id. at 134.
        In other words, the Court in Greene decided that the statute only applies to those DUI cases that involve either the enhancement of penalties or those cases where a suspect has refused to submit to the appropriate breath test. This limited applicability becomes immediately apparent when one considers the statute’s title, "Alcohol or substance testing subject to refusal or enhancement of penalties under KRS Chapter 189A[.]" (emphasis added). See Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127 S.W.3d 609, 613 (Ky. 2004) ("An Act’s title may be considered in its interpretation."); Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 463 (Ky. 2004) (It is proper to consider the title of an enactment in its construction.); and American Premier Ins. Co. v. McBride, 159 S.W.3d 342, 349 (Ky. App. 2004) ("The title of an enactment given to it by the legislative body is a proper consideration in its construction.").
 
Litteral v. Commonwealth, No. 2007-CA-001982-DG (Ky. App. 12/5/2008) (Ky. App., 2008)
    During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
    Litteral’s only complaint is that he was unable to consult privately with his attorney. However, we believe the highlighted language was purposefully crafted. The "right" described is very circumscribed. It is merely the right to "an opportunity . . . to attempt to contact and communicate with an attorney[.]" The statute specifically avoids creating a right to have counsel present. This is far short of the right to private consultation with an attorney. If such private consultation was intended, the Legislature could easily have granted that right
 
McCreary v. Commonwealth, No. 2007-CA-000094-DG (Ky. App. 10/17/2008) (Ky. App., 2008)
    The version of KRS 189A.010(1) in effect when Wells and Harris were rendered merely stated that "[n]o person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one’s driving ability." In 1991, the Legislature amended the statute by adding language prohibiting the "physical control of a motor vehicle" while under the influence of alcohol. Since that time, Kentucky appellate courts have had several opportunities to reconsider the factors set forth in Wells in light of the statutory change. Wells’ factors have not been abandoned or displaced and remain a useful tool in interpreting KRS 189A.010(1).
        White v. Commonwealth, 132 S.W.3d 877 (Ky.App. 2003), this Court recognized the continuing validity of Wells and Harris. We noted that when the question of whether a defendant operated or had physical control of a motor vehicle while intoxicated is raised, the appellate courts examine the totality of the circumstances. White, 132 S.W.2d at 883. Consequently, we will do the same in evaluating McCreary’s claim that he was not proven to be in physical control of his vehicle while intoxicated.
…This case is similar to others in which we found the evidence insufficient to sustain a DUI conviction because the intoxicated person was not operating or in control of a motor vehicle. The defendant in Wells was asleep behind the wheel of a parked van with the engine running, the transmission in neutral and the emergency brake on. In Harris, the defendant had been parked in a McDonald’s parking lot for two hours when he passed out in his truck, and the engine was not running. Like McCreary, both defendants had alcoholic beverages and/or alcohol containers in their vehicles with them, eliminating the ability of the jury to infer that any of the defendants must have become intoxicated before entering the vehicle.
More importantly, in light of Blades, no evidence supports a reasonable inference that McCreary was operating or "in physical control of a motor vehicle" — as that term is used in KRS 189A.010 — contemporary with his being under the influence of alcohol.
        For the foregoing reasons, the judgment convicting McCreary is reversed.
 
Pemberton v. Commonwealth, No. 2007-CA-001016-DG (Ky. App. 10/10/2008) (Ky. App., 2008)
 Quoting from Robert G. Lawson, The Kentucky Evidence Law Handbook, Sec. 205[3], at 80 (4th ed., LEXIS 2003), quoting Edward W. Cleary, McCormick on Evidence 542-43 (3rd ed. 1984), the Kentucky Supreme Court stated Parsons v. Commonwealth, 144 S.W.3d 775 (Ky. 2004), as follows:
        An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need not even make that proposition appear more probable than not. . . . It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence. . . .
        Id. at 781.3
        The fact that Pemberton ingested marijuana within 36 hours of driving is a useful fact in the determination of whether or not he was driving while impaired. The weight to be assigned to that evidence is a matter for the trier of fact to determine.
   The district court’s determination was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. We find no abuse of discretion.
 
Brown v. Commonwealth, No. 2007-CA-001643-MR (Ky. App. 10/3/2008) (Ky. App., 2008)
The testimony that someone did not personally observe Brown drinking prior to the accident simply could not as a matter of scientific reality refute the results of a blood test. KRS 189A.010(1)(a) criminalizes operating or being in physical control of a motor vehicle while "having an alcohol concentration of .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." Although courts may admit evidence indicating contributory or mitigating circumstances, its omission in this case was not likely to overcome the scientific evidence. Thus, we cannot conclude that Brown suffered prejudice as a result of the absence of his sister’s probable testimony.
 
Adams v. Commonwealth, No. 2007-CA-002504-MR (Ky. App. 8/22/2008) (Ky. App., 2008)
Since a moped can carry a person or property and has a motor, it is a "motor vehicle" in accordance with common and approved usage, and within the meaning of KRS 189A.010. Thus, the trial court did not err by finding that the moped driven by Adams at the time of his arrest was a "motor vehicle" under KRS 189A.010(1).
 
 
Commonwealth v. Lile, No. 2007-CA-001638-MR (Ky. App. 8/1/2008) (Ky. App., 2008)
The Personnel Board presented ample evidence to support its findings that Lile’s termination was not excessive. The record reflects undisputed evidence of Lile’s intoxication, such as the breathalyzer results and Lile’s admission to drinking on the night of July 12, 2005.
        Lile did not allege that the breathalyzer results were incorrect nor did he recant his initial confession. Lile simply submitted evidence that he contends should have mitigated the disciplinary action. Simply because the Personnel Board did not find that evidence sufficient to warrant a suspension rather than termination does not render its findings arbitrary.
For sake of comparison, it should be noted that Kentucky Law prohibits operating a motor vehible with a blood alcohol content of .08 or above. KRS 189A.010.
 
Commonwealth v. Beard, No. 2006-CA-001990-DG (Ky. App. 3/28/2008) (Ky. App., 2008)
Additionally, common sense dictates that appellant was already a second time offender of KRS 189A.010 when he submitted to trial by jury on November 10, 1986, in Breckinridge County. To hold otherwise would grant the appellant a license to continue to drive intoxicated from his arrest until trial and judgment without the added penalty of KRS 189A.010(2)(b) or (c). We assume the Kentucky Legislature did not intend such a ridiculous result.         Id. at 701.
        Thus, for purposes of penalty enhancement under KRS 189A.010, holds that the date of the conviction — not the date of the arrest — governs.
 Osbourne v. Com 867 S.W. 2d 484 – 1993 Royalty had actually been convicted for his DUI 2nd before he was convicted for his DUI 3rd — as distinguished from Beard’s scenario.
        Beard’s two cases were handled together on the same day — virtually simultaneously. The Commonwealth could have acted expeditiously to obtain a DUI 1st conviction for the May 5 offense prior to prosecuting the charge of May 26, but instead it essentially "bundled" both offenses.
        Although he had entered a plea, Beard had not yet been convicted as such for the arrest of the May 5, 2006, when he entered his guilty plea for the second offense of May 26, 2006. As to the May 5 offense, the record contains an unsigned, incomplete copy of Beard’s plea of guilty. No reference to a sentence or other indication of "conviction" is made. As to the May 26 offense, the record contains a hand-written entry on a docket sheet setting forth his punishment for DUI 2nd. Therefore, we can find no credible record of conviction for the May 5 offense.
        KRS 189A.010(5)(e) defines "prior offenses" in clear and unambiguous language and requires that a copy of a conviction be certified by a court:
        prior offenses shall include all convictions in this state, and any other state or jurisdiction, for operating or being in control of a motor vehicle while under the influence of alcohol or other substances that impair one’s driving ability. .. . A court shall receive as proof of a prior conviction a copy of that conviction, certified by the court ordering the conviction.
          There seems to be no escaping the import of that language that Kentucky has indeed embraced the conviction-to-offense prerequisite for penalty enhancement purposes in DUI cases. Thus, we are compelled to affirm the circuit court. That court expressed its displeasure with the unavoidable outcome in its order of August 17, 2006:
        While the Court may not like the result, the fact is that the legislature has spoken very clearly in this respect. However, the Court would note that in keeping with the current trend in the Court system to provide dicta as cannon fodder for attorneys, the fact that the case can only be prosecuted as a first offense does not mandate that the Commonwealth has to treat it exactly the same for purposes of plea agreements. Penalties for a First Offense DUI carry up to 30 days in jail and fines up to $500.00.
        Therefore, the Appellant’s Appeal is granted, and the Court must treat the May 26, 2006 DUI as a first offense.
 
Unemployment Ins. Com’n v. Duro Bag, 250 S.W.3d 351 (Ky. App., 2008)
The Referee then relied on KRS 189A.010(3)(a) which provides "[i]f there was an alcohol concentration of less than 0.05 …, it shall be presumed that the defendant was not under the influence of alcohol[.]" The Referee opined, "The Referee’s bound by the Kentucky Unemployment Insurance Commission’s rulings in similar cases that has (sic) been adjudicated under standards established by Kentucky [250 S.W.3d 355]
law relating to the operation of a motor vehicle." Such a finding is contrary to previous holdings by the Commission as well as our Courts. Kentucky Unemployment Insurance Commission v. King, 657 S.W.2d 250 (Ky.App.1983), the claimant, a cashier, on one occasion checked out purchases for a family member, contrary to company policy. The Commission and Referee were quoted as finding, "In this case, whether or not the claimant was guilty of any legal wrongdoing is not relevant." King, 657 S.W.2d at 251. Likewise, whether or not Smith was intoxicated under the DUI statutory definition is not relevant in this case. A level of intoxication, determined through negotiations between the company and union, set for operating heavy machinery is not unreasonable and there was no evidence it was not uniformly applied. The Commission’s policy of relying on the statute to define intoxication is only appropriate when there is no definition in the employer’s uniformly enforced policy. Further, the only reason the supervisor asked Smith to submit to a blood test to determine her B.A. was she appeared to be acting strangely. Thus, even this low level of intoxication must have had some effect on her motor skills.
 
Christy v. Commonwealth, No. 2007-CA-001304-MR (Ky. App. 3/14/2008) (Ky. App., 2008)
 On April 11, 2007, Christy filed a "motion to exclude juvenile DUI and prohibit enhancement" arguing that the enhancement statute of KRS 189A.010(5)(d), which makes a fourth or subsequent DUI offense a felony, does not apply to Christy because he was a minor when he was convicted of his first DUI offense. The trial court entered an order denying Christy’s motion on April 30, 2007. Christy entered a conditional guilty plea on May 11, 2007, and was sentenced to a total of two-years’ imprisonment. This appeal followed.
 The Commonwealth argues that Christy has failed to point to any particular statute that violated his equal protection rights because he only alleges that his fourth DUI conviction is in violation of equal protection. We agree with the Commonwealth. The burden of proving a constitutional violation, including equal protection violations, rests with the party alleging the violation. Com. V. Howard 969 S.W.2d 700 – 1998   . In this case, the burden is on Christy to show that some statute violated his equal protection of the law. Since Christy does not argue that a particular statute violates his right to equal protection of the law as afforded by the Fourteenth Amendment to the U.S. Constitution, he has not met his burden of proof.
        Finally, Christy argues that a conflict exists between KRS 610.010(1)(a) and KRS 189A.010(5) & (7), and the rule of lenity applies when it is unclear whether or not a conviction will be classified as a felony or a misdemeanor. Christy argues:
        The juvenile code prohibits any motor vehicle offense committed by a juvenile from being treated as a felony. See KRS 610.010, supra. However, KRS 189A.010(7) is in conflict with that statute, providing that a person under twenty-one with an alcohol concentration of 0.08 or more shall be subject to the penalties in subsection (5) of the statute. Subsection (5)(d) makes a person’s fourth DUI in five years a Class D felony.
        The rule of lenity applies only when statutes are ambiguous and must be resolved in favor of a criminal defendant. White v. Commonwealth, 178 S.W.3d 470, 484 (Ky. 2005). Again, Christy alleges that he was convicted of his first DUI, while a juvenile, in district court pursuant to the juvenile code, "which prohibits a motor vehicle offense committed by a juvenile from being treated as a felony." As noted earlier, KRS 189A is not included in the juvenile code, and persons under eighteen years of age charged with KRS 189A offenses are to be prosecuted in the adult session of district court. Neither KRS 189A.010 or KRS 610.010 is ambiguous, nor are they in conflict with each other.
        For the reasons stated above, the judgment of the Mason Circuit Court is affirmed.
 
Greene v. Com., 244 S.W.3d 128 (Ky. App., 2008)
  On June 30, 2005, a Hardin County grand jury returned an indictment charging Robert E. Greene with one count each of operating a motor vehicle with an alcohol concentration of or above 0.08(DUI), fourth offense (KRS 189A:010); and operating a motor vehicle while his license was revoked or suspended for driving under the influence (KRS 189A.090). Prior to trial, Greene moved to suppress evidence seized and statements which he made following a traffic stop on April 20, 2005. Following an evidentiary hearing, the trial court denied the motion.
 
Eicher v. Commonwealth, No. 2007-CA-000123-MR (Ky. App. 3/14/2008) (Ky. App., 2008) March 14, 2008
Tony Eicher appeals his conviction for two counts of first-degree wanton endangerment, Kentucky Revised Statutes (KRS) 508.060; operating a boat under the influence of alcohol, KRS 189A.010; and leaving the scene of an accident, KRS 189.580(1). He claims that the trial court erred in denying his motions for directed verdict and for continuance of his trial. After carefully examining the record, we affirm the Spencer Circuit…  
 
Pentecost v. Commonwealth, No. 2007-CA-000024-MR (Ky. App. 3/7/2008) (Ky. App., 2008) March 7, 2008
On January 6, 2006, Pentecost was indicted for two counts of wanton murder (KRS 507.020(1)(b)) and operating a motor vehicle under the influence of alcohol (KRS 189A.010). The case was tried before a jury in October 2006. At the conclusion of the trial the jury found Pentecost guilty of two counts of second-degree manslaughter (KRS 507.040) and DUI. As relevant here, the jury recommended a sentence of seven and one-half years on each of the two manslaughter convictions, to run consecutively,…  
 
Baker v. Commonwealth, No. 2005-CA-000021-MR (Ky. App. 8/31/2007) (Ky. App., 2007) August 31, 2007
KRS 189A.010(4)(e) provides that "prior offenses shall include all convictions in this state, and any other state. . ." This section was added to the statute by the Legislature, presumably in response to our decision in Suttle v. Commonwealth, 774 S.W.2d 454 (Ky.App. 1989). That addition to the statute specifically overruled …  
 
Beavers v. Commonwealth, No. 2006-CA-002256-MR (Ky. App. 8/10/2007) (Ky. App., 2007) August 10, 2007
On November 25, 2003, in connection with the June 1, 2003, incident, Beavers was indicted for first-degree fleeing or evading police, KRS 2 520.095; possession of marijuana, KRS 218A.1422; possession of drug paraphernalia, KRS 218A.500(2); driving under the influence, second offense, aggravated, KRS 189A.010; reckless driving, KRS 189.290; failure to signal, KRS 189.380; and possession of open alcoholic beverage container in motor vehicle, KRS…  
 
 Wilson v. Commonwealth of Kentucky, No. 2006-CA-000131-MR (Ky. App. 7/20/2007) (Ky. App., 2007) July 20, 2007
Wilson was charged with a violation of KRS 189A.010. The question surrounding the suppression hearing was a challenge to the results of the machine used to test Wilson. The machine indicated Wilson had an alcohol concentration in excess of the legal limit. While the witnesses sought may have been useful at trial to cast some doubt in the minds of a jury, they were not remotely relevant to whether or not the results of the machine should have been suppressed. What the suppression hearing did…  
 
Brockett v. Commonwealth, No. 2006-CA-000563-MR (Ky. App. 6/8/2007) (Ky. App., 2007) June 8, 2007
Brockett first argues that the trial court erred by refusing to read the KRS 189A.010(3) (a) presumption regarding intoxication levels to the jury. The Kentucky Supreme Court has held that the KRS 189A.010(3) presumptions are inapplicable to any criminal offenses except for driving under the influence (DUI). Walden v. Commonwealth, 805 S.W.2d 102, 104 (Ky. 1991)(overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996)); Overstreet v. Commonwealth, 522 S.W.2d 178 (Ky…  
 
T.G. v. Commonwealth, No. 2006-CA-001008-ME (Ky. App. 5/18/2007) (Ky. App., 2007) May 18, 2007
….review of the statute does not reveal any indication that the legislature intended a finding under KRS 625.090(1)(a)1. to be a rebuttable presumption. In other statutes, the legislature has clearly set forth rebuttable presumptions, unlike in this particular statute. See KRS 189A.010(3) (presumptions in prosecution for operating a motor vehicle under the influence); KRS 189.520(3) (presumptions in prosecution for operating a non-motor vehicle under the influence); KRS 403.213(2) (15% change…  
 
Bridgers v. Commonwealth, No. 2005-CA-001690-DG (Ky. App. 1/19/2007) (Ky. App., 2007) January 19, 2007
At the time of the trial of this matter, the foundation requirements for the introduction of breath test results were set forth by our Supreme Court in Wirth v. Commonwealth 14 . The Wirth decision examined prior holdings of the Court in Marcum v. Commonwealth 15 and Owens v. Commonwealth 16 both of which had held breath tests results to be admissible solely on the basis of testimony of the operator of the machine. While noting that "[t]he standard set forth in Marcum and Owens…  
 
Lewis v. Com., 217 S.W.3d 875 (Ky. App., 2007) January 5, 2007
Jeremy Lewis was arrested for driving under the influence in violation of KRS 2 189A.010. At Lewis’ August 2005 trial, the Commonwealth prosecuted him as having been intoxicated "per se" because he had 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[.]" KRS…  
 
Hudson v. Commonwealth, No. 2005-SC-0120-MR (Ky. 10/19/2006) (Ky., 2006)
October 19, 2006
On January 18, 2005, a Montgomery Circuit Court jury convicted Appellant, Emory Hudson, of operating a motor vehicle while under the influence of alcohol ("DUI"), fourth offense, KRS 189A.010(1), (5)(d), (11)(d), a class D Felony, and of being a persistent felony offender in the first degree, KRS 532.080(3). The trial court sentenced Appellant to twenty years in prison, pursuant to the jury’s recommendation. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b),…  
 
Rowan County v. Sloas, 201 S.W.3d 469 (Ky., 2006) September 21, 2006
The Appellee, William Sloas (Sloas), was incarcerated in the Rowan County Jail in December 1997 after being convicted of a fourth offense of operating a motor vehicle while under the influence of alcohol, KRS 189A.010, and possession of a controlled substance in the first degree, KRS 218A.1415, both Class D felonies. He was released four months later on April 28,…  
 
Kentucky Bar Ass’n v. Claypoole, 198 S.W.3d 589 (Ky., 2006) August 24, 2006
Respondent applied to sit for the February 2002 Kentucky Bar examination by application dated September 27, 2001. He took the bar examination on February 26, and 27, 2002. Following the examination, and prior to learning the results, Respondent was charged with Driving Under the Influence, First Offense, KRS 189A.010, on or about March 23, 2002, in Jefferson County, Kentucky. On April 19, 2002, Respondent learned that he had passed the bar examination. He was admitted to the practice of law by…                                                     
 
KY Hubbard v. Commonwealth, 145 S.W.3d 419 (Ky.App. 09/10/2004)
Hubbard admits that his license was suspended or revoked on June 14, 2002, the date of the incident that gave rise to the charges against him herein. However, he argues that his license was not revoked or suspended under KRS 189A.070 at that time for violation of the DUI law (KRS 189A.010). Rather, Hubbard asserts that the revocation for the prior DUI offense had expired and that his license was revoked at the time of this incident only for his violation of KRS 189A.090.  
Therefore, we reverse the portion of the judgment of the Campbell Circuit Court which convicts Hubbard of operating a motor vehicle on a DUI-suspended license, second offense, while under the influence of intoxicants, and remand this case for the entry of an order dismissing that charge.
 
KY [U] Kidd v. Commonwealth, No. 2003-CA-000439-DG (Ky.App. 08/20/2004) 
The sole issue for our review is whether the circuit court erred as a matter of law in concluding that the Commonwealth was not required to prove that Kidd was driving erratically in order to satisfy the elements of KRS 189A.010(1)(c). After a review of the DUI statute and the applicable legal precedents, we find no error in the court’s decision as to the Commonwealth’s burden-of-proof. The court held that when the evidence was construed favorably as to the verdict, a rational trier of fact could have found proof of Kidd’s guilt beyond a reasonable doubt. We agree.
 
KY [U] Grimm v. Commonwealth, No. 2003-CA-001615-MR (Ky.App. 10/22/2004)
the officer noted, "MARIJUANNA Cigarette & seeds Found in CAR." Grimm was charged with DUI, KRS 189A.010(1)(d), which provides, "While under the combined influence of alcohol and any other substance which impairs one’s driving ability; . . ." Grimm was also charged with possession of marijuana and two counts of assault in the second degree. Blood and urine samples were taken from Grimm and sent to the Kentucky State Police lab for analysis. A Toxicology Analysis Report dated March 14, 2001, reported "Drug content of Blood: Diazepam 0.005 mg%; Nordiazepam 0.005 mg%" and "Drug content of Urine: Hydrocodone 0.02 mg%; Cannabinoid Metabolites." 
      KRS 189A.010(1) has five subsections. Subsections (a) and (e) are per se violations, meaning the Commonwealth does not have to prove impairments, only the amount of alcohol in one’s breath or blood. Subsections (b), (c), and (d) all require the Commonwealth prove impairment to drive. Grimm was charged under subsection (c) which requires that the defendant operated the vehicle "[W]hile under the influence of any other substance or combination of substances which impairs one’s driving ability. . . ." Technically, the particular charge in the indictment against Grimm should not have included the word "may" because it was not a per se violation. However, defects in the indictment are waived when a defendant enters a guilty plea without objection. Skaggs v. Commonwealth, Ky. App., 885 S.W.2d 318 (1994). "The general rule is that pleading guilty unconditionally waives all defenses except that the indictment did not charge an offense." (citations omitted.) Hughes v. Commonwealth, Ky. 875 S.W.2d 99, 100 (1994). The question becomes whether the indictment charges an offense because it improperly inserted the word "may." We believe it does because KRS 189A.010(1) has both per se violations and violations which require actual impairment to be proven. Even though the Commonwealth was proceeding on subsection (c) which requires that impairment be proven, the per se violations are included in the same statute, thus the indictment does charge a crime, albeit not the subsection Grimm pled guilty to, nor the one she was originally charged with.
 
KY Commonwealth v. Parson, 144 S.W.3d 775 (Ky. 06/17/2004)
 To obtain the respective enhancements, the Commonwealth was required to prove three prior DUI convictions occurring within five years of May 30, 2000, and two prior OSL/DUI convictions. KRS 189A.010(5)(c), (10); KRS 189A.090(2)(c)
KY [U] Commonwealth v. Ellis, No. 2003-CA-002061-MR (Ky.App. 10/08/2004)
 The Commonwealth filed a motion to reconsider due to the circuit court’s failure to impose the mandatory minimum sentence, citing KRS 189A.010(5)(c). The statue provides that the "term shall not be suspended, probated, conditionally discharged, or subject to any other form of early release."
 
KY Smith v. Commonwealth, No. 2003-CA-000214-DG (Ky.App. 09/24/2004)
 First, we note that Smith’s discovery request, set out above, did not ask the Commonwealth to specify under which subsection of KRS 189A.010(1) it would proceed. Thus, the sole issue on appeal is whether the Commonwealth was required to notify Smith of the subsection(s) of KRS 189A.010(1) under which it would proceed, even though Smith did not request the information.
KY Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 06/17/2004)
While we do not agree with an interpretation that the statute or laws requires an election as to which of the four statutory subsections will be prosecuted to the exclusion of all others, it would appear that fundamental fairness and appropriate trial preparation requires notice as to which statutory subsections will be proven by the Commonwealth.Accordingly, we held that the trial court erred by prohibiting the Commonwealth from pursuing a conviction under multiple sections of KRS 189A.010(1).
      Despite the central holding in Wirth that enactment of the per se violation provision did not create a new or separate offense but merely provided an additional means by which such an offense could be committed, the trial court believed Wirth did not apply in the case of offenders under the age of twenty-one who have an alcohol concentration of 0.02 or greater. On this point, the trial court may have been correct. With prosecutions for per se violations under (1)(a) and "under the influence" violations under (1)(b), there is a parallel purpose. That purpose is to punish alcohol-impaired operators of motor vehicles and a legislative determination has been made that 0.08 alcohol concentration and being under the influence each constitute impairment. KRS 189A.010(1)(e) is somewhat discordant in that it fixes the level of alcohol concentration at a low level and limits its application to persons who are under the age of twenty-one years. One could argue that (1)(e) is more intensely focused on the age of the offender than on impairment as the operator of a motor vehicle.
     However one analyzes the statute with respect to purpose, our role is to interpret the statutory language and determine the intent of the legislature as we answer the certified question of law. When interpreting statutes, it is the duty of this Court to ascertain and effectuate the intent of the legislature. We should not add or subtract from the statute, nor should we interpret the statute to provide an absurd result. The determination required by the statute here is whether subsections (1)(a) and (1)(e) are both applicable to persons under the age of twenty-one. The per se subsection (1)(e) applies only to persons under the age of twenty-one who have an alcohol concentration of 0.02 or more, and subsection (1)(a) applies to "person[(s)]… having an alcohol concentration of 0.08 or more…." There is no language in KRS 189A.010(1)(a) that limits its application to persons who are twenty-one years or more.
 
KY Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 03/18/2004)
Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A.010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500.080, as a result of the incident in which the defendant has been charged.
 
KY [[U] Western-Southern Life Assurance Company v. Maddox, No. 2002-CA-001080-MR (Ky.App. 11/14/2003)
Western-Southern first argues that it was entitled to a directed verdict on the issue of Kevin’s alleged intoxication at the time of his accident. On the date Kevin was killed, KRS 189A.010 stated that a person was guilty of driving under the influence if his blood alcohol content measured 0.10 or greater. At trial, Western-Southern introduced evidence that Kevin’s blood alcohol content near the time of his accident measured 0.189. This evidence was introduced in the form of expert testimony by Dr. Cristin Roth, a physician who performed an autopsy on Kevin on behalf of the state medical examiner’s office. Western-Southern argues that this evidence, coupled with the statutory presumption of intoxication under KRS 189.520(3)(C), entitled Western-Southern to a directed verdict with regard to the driving under the influence element of KRS 520.095. We disagree
      In Bridges v. Commonwealth, our Supreme Court stated that although KRS 189.520 creates a presumption of intoxication if one’s blood alcohol level is above the legal limit, that presumption is rebuttable by other evidence. Further, the ultimate question of intoxication is a question properly reserved for the jury to determine. In the case sub judice, although there was evidence suggesting that Kevin’s blood alcohol level was above the legal limit at the time of his accident, there was also evidence to the contrary.
KY Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 07/25/2003)
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
 
KY Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 08/16/2002)
   However, we do not read King or Wirth to stand for the much broader proposition that evidence concerning alcohol intoxication is never relevant in a prosecution for DUI per se. To the contrary, we conclude that such evidence may be relevant in some cases.
      At trial, a defendant could allege that the breathalyzer test must have been inaccurate because he was only slightly intoxicated or not intoxicated at all. To support this position, he could seek to introduce evidence concerning his alcohol intoxication. For example, an accused could offer proof that he suffers a severe alcohol allergy, thus preventing him from consuming alcohol. Similarly, he could offer proof that he only consumed a single alcoholic beverage a considerable time before administration of the breathalyzer test. Clearly, the evidence in the above examples would tend to impugn any contrary results of a breathalyzer test. Likewise, evidence that an accused performed satisfactorily in a field sobriety test could also tend to impugn the test results showing a blood-alcohol concentration above the legal limit.
   Thus, we conclude that evidence concerning alcohol intoxication can constitute circumstantial proof impugning the accuracy of the blood and breath-alcohol concentration tests. Since a jury is entitled to draw reasonable inferences from circumstantial evidence, such evidence is relevant because it makes less probable a material element of DUI per se – whether the accused’s blood- or breath-alcohol concentration was .10 or higher. Therefore, the circuit court properly set aside the district court’s holding excluding the evidence of Mattingly’s performance on the field sobriety tests.
 
KY [U] Whitehouse v. Commonwealth, No. 2001-CA-000585-DG (Ky.App. 02/28/2003)
Subsequent to this Court’s granting of discretionary review in this case, the Kentucky Supreme Court rendered its decision in Cornelison v. Commonwealth, Ky., 52 S.W.3d 570 (2001), wherein it upheld the constitutionality of the 1998 version of KRS 189A.010(4)(c) which contained the penalty enhancement provision for third time offenders with an alcohol concentration of 0.18 or higher. In that case, appellant also made the argument that the 0.18 blood alcohol standard was arbitrary. In rejecting this argument, the Court stated:
  As we have previously noted, the Commonwealth is not obligated to produce evidence to sustain the rationality of statutory classifications. Stephens [v. State Farm Mutual Auto Insurance Co., Ky., 894 S.W.2d 624 (1995)]. We are of the opinion that Cornelison, who does in fact have the burden of demonstrating the arbitrariness of the statute, has failed to do so. Just as the legislature has recently amended the statute to provide that an alcohol concentration of 0.08 or higher creates a presumption of intoxication, it has the authority to declare that a level of 0.18 or higher warrants increased penalties. Cornelison, 52 S.W.3d at 573.
 
KY Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914 (Ky. 02/21/2002)
That, if the person refuses to submit to such tests, the fact of refusal may be used against him in court as evidence of violation of KRS 189A.010 and will result in revocation of his driver’s license, and if the person is subsequently convicted of violating KRS 189A.01 O(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
KY Commonwealth v. Stephenson, 82 S.W.3d 876 (Ky. 08/22/2002)
 The Commonwealth argues that Heath is dispositive of the issue at bar. We agree with the Commonwealth to the extent that we find that the dual sovereignty doctrine disposes of Stephenson’s constitutional double jeopardy claims involving his former prosecution inIndiana. In order to fully address Stephenson’s double jeopardy claim, however, we must consider Stephenson’s argument regarding the applicability of Kentucky’s statutory double jeopardy protections. KRS 505.050, which suspends the dual sovereignty doctrine as it relates to subsequent Kentucky prosecutions for a certain class of offenses by applying Kentucky’s other statutory double jeopardy provisions "to conduct that violates the criminal laws of two different jurisdictions, i.e., this state and the United States or this state and a sister state," provides:
  When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state, a prosecution in such other jurisdiction is a bar to a subsequent prosecution in this state…
KY Love v. Commonwealth, 55 S.W.3d 816 (Ky. 02/22/2001)
Appellant’s contention that the Commonwealth impermissibly used the various tests to extrapolate his BAC at the time of the accident is also without merit. In Wirth, supra, this Court stated "extrapolation evidence is not required for the Commonwealth to make a prima facie case of a [violation of KRS 189A.010(l)(a)]." Id. at 84 (emphasis added). However, nothing in this wording precludes the Commonwealth, or the defendant, from using extrapolation evidence to assist the trier of fact in its determinations.
*** THIS DECISION IS DATED BY Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 06/17/2004) – Evans v. Commonwealth, 45 S.W.3d 445 (Ky. 01/25/2001) What Evans seems to have overlooked is that the statutes under review, KRS 189A. 010(l)(a) and (b), merely provide different means of committing the same violation. These subsections do not represent different elements of the offense, but alternative means of committing the same offense. While the alternative means do indeed require different acts, the effect is the same and there is no prejudice so long as evidence is presented from which the jury could reasonably believe both of the subsections had been violated.
 
KY Barker v. Commonwealth, 32 S.W.3d 515, 32 S.W.3d 515 (Ky.App. 09/29/2000)
Unquestionably, KRS 189A.010 provides that driving under the influence of alcohol or any other impairing substance or a combination thereof is prohibited. Specifically, subsection (4) operates as a recidivist provision in that it designates an enhanced penalty for each subsequent DUI offense committed within a five-year period. We believe this statute is sufficiently definite that it can be understood by ordinary persons.
   Regarding the arbitrary enforcement prong, the legislature is required to provide "`minimal guidelines’ to prevent a `standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’" Commonwealth v. Kash, Ky. App., 967 S.W.2d 37, 45 (1997) (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citation omitted)). It is this prong, we believe, that Barker claims to be triggered by the conjunction of KRS 189A.010(4)(c) and KRS 189A.105, that is, failure to adequately inform a third offense DUI suspect that acquiescing to the blood alcohol test can result in a felony conviction. We disagree.
 
KY Adams v. Commonwealth, 46 S.W.3d 572 (Ky.App. 07/14/2000)
As to the DUI 4th conviction, the court also erred in adjudging that KRS 533.060(2) precluded consideration for probation. Chapter 189A has its own provisions regarding probation for DUI offenses in KRS 189A.010. Thus, the DUI statute is the more specific statute and is controlling here.
  KRS 189A.010(4)(d) designates a fourth or subsequent offense DUI a Class D felony which, under KRS 532.060(d), requires a sentence of 1-5 years. KRS 189A.010(7) provides in pertinent part:
  For a fourth or subsequent offense under this section, the minimum term of imprisonment shall be one hundred twenty (120) days, and this term shall not be suspended, probated, or subject to conditional discharge or other form of early release.
    Although the minimum sentence for DUI 4th is one year, under KRS 189A.010(7), the court can nevertheless probate all but 120 days of the sentence, since that is the "minimum term of imprisonment" which cannot be probated. Thus, in the instant case, Adams was eligible for probation as to 245 days of his one-year sentence. KRS 533.010(2) provides that the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge before imposition of a sentence ofimprisonment. Accordingly, we vacate the sentence on the DUI 4th offense and remand for the court to consider probation on that offense.
 
KY Cornelison v. Commonwealth, No. 1999-CA-001825-MR (Ky.App. 07/07/2000)
 This subsection and the other subsections in KRS 189A.010 (4), provide a comprehensive scheme of escalating penalties to be imposed on individuals who engage in the inherently dangerous activity of driving under the influence of alcohol. Prior to the 1998 amendments to KRS 189A.010(4), the sanctions progressed in severity predicated solely on the number of offenses within a five-year period. Effective July 15, 1998, the Legislature amended the statute and chose, in the case of first-time and third-time offenders, to further classify offenders according to their degree of intoxication and to enhance the penalty for those driving while extremely impaired. Under the scheme at issue, a first-time offender whose blood alcohol level is less than 0.18 can be given a fine of between $200 and $500, and be imprisoned "for not less than forty-eight (48) hours nor more than thirty (30) days," or receive both a fine and a sentence of imprisonment. A first-time offender whose blood alcohol level is 0.18 or more is subjected to the same fines, but must be sentenced to jail for at least seven days, five of which may be probated. A second offense can result in a fine in the range of $350 to $500, and imprisonment for seven days to six months, and in addition, a sentence of community labor for ten days to six months may be imposed. The minimum sentence of seven days cannot be "suspended, probated, or subject to conditional discharge or other form of early release." A third offense committed within five years by one whose blood alcohol level is less than 0.18 can result in a fine or between $500 and $1,000, and imprisonment for 30 days to 12 months. The minimum 30-day jail sentence must be served and again, in addition to a fine and imprisonment, community labor is also a possible consequence. As set forth above, that portion of the statute under which Cornelison was convicted provides that a third offense within five years by a driver whose blood alcohol level is 0.18 or more, elevates the offense to a class D felony, which carries a penalty of imprisonment of one to five years. Finally, all fourth or subsequent DUI offenses are classified as Class D felonies, regardless of the driver’s degree of intoxication. Any person convicted of a felony DUI offense must serve at least 120 days in jail.
 
KY Commonwealth v. Garnett, 8 S.W.3d 573 (Ky.App. 04/16/1999)
KRS 189A.090 is a completely separate offense from KRS 189A.010.Corman v. Commonwealth, Ky. App., 908 S.W.2d 122, 124 (1995). It is clear from the language of the statute that the legislative intent is to raise the seriousness of the offense as well as the punishment based on the number of times a defendant has committed the offense of operating his motor vehicle while his license is suspended or revoked. Estes v. Commonwealth, Ky. App., 864 S.W.2d 317, 318 (1993). The plain and unambiguous language of KRS 189A.090 expresses that there are no time limits constraining the use of prior OSL convictions for enhancement of subsequent OSL convictions. "If the words of the statute are plain and unambiguous, the statute must be applied to those terms without resort to any construction or interpretation." Kentucky Unemployment Insurance Comm. v. Kaco Unemployment Ins. Fund, Inc., Ky. App., 793 S.W.2d 845, 847 (1990) (citing Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, Ky., 689 S.W.2d 14 (1985)); Terhune v. Commonwealth, Ky. App., 907 S.W.2d 779, 782 (1995). Consequently, the trial court erred when it applied the time limitation set forth in KRS 189A.010 to KRS 189A.090.
 
KY Commonwealth of Kentucky v. Howard, 969 S.W.2d 700 (Ky. 06/18/1998)
KRS 189A.010(1)(e) does not violate the equal protection clause of the United States Constitution or Sections 1, 2 and 3 of the Kentucky Constitution that reflect the equal protection provisions of the Fourteenth Amendment to the United States Constitution. Commonwealth v. Smith, Ky., 875 S.W.2d 873 (1994). In addition, Section 59 of the Kentucky Constitution provides equal protection guarantees in the form of a prohibition of special legislation which is also not violated.
   KRS 189A.010(1)(e) is sometimes known as the "Juvenile DUI Statute" or the "Zero Tolerance Law." It was enacted in 1996 and makes it a crime for anyone under the age of twenty-one to drive with a blood alcohol content of 0.02 percent or higher. The Zero Tolerance Statute is one of several provisions which was enacted in 1996 by the General Assembly. In addition, the General Assembly provided a graduated driver’s licensing system in which a novice driver begins driving with a learner’s permit at age sixteen and progresses to driving with certain restrictions. Full licensing, without restriction, is obtained at age eighteen. See KRS 186.440 et seq. Approximately 43 states, as well as the District of Columbia, have zero tolerance laws for drivers under the age of twenty-one. See National Center for Statistics and Analysis, National Highway Transportation Safety Administration, Traffic Safety Facts-Young Drivers (1996). The necessity for establishing a zero tolerance statute and the graduated driver’s licensing program comes at least in part from the Alcohol Impaired Driving Countermeasures Act, 23 U.S.C.A. 410 (1991), which provides federal highway grants to those states that establish measures to combat drunk driving. See 23 U.S.C. 410(d)(7).
KY Dixon v. Commonwealth, 982 S.W.2d 222 (Ky.App. 09/11/1998)
    Next, the Commonwealth argues that even though, at the time of his arrest on November 18, 1996, Dixon could become eligible for reinstatement by complying with KRS 189.070(3), his license nevertheless remained suspended for violation of KRS 189A.010, and he could therefore be prosecuted under KRS 189A.090.
      However, we disagree. KRS 189A.070 provides for a specific license suspension period depending upon the number of violations of KRS 189A.010. Once the suspension period has expired, one whose license has been suspended can reapply for his driving privileges once he has complied with KRS 189A.070(3), by completing an alcohol abuse education program. In other words, during his period of suspension, one whose license has been revoked may not, under any circumstances, be reinstated, whereas after the expiration of the suspension period, one becomes conditionally eligible for reinstatement once he complies with KRS 189A.070(3). It is true that Dixon’s license was suspended for a second DUI in violation of KRS 189A.010. However, after the twelve-month period of suspension had expired, Dixon’s failure to attend the alcohol abuse education program then became the reason that his license remained suspended. Under that circumstance, we do not believe that Dixon can be prosecuted under KRS 189A.090, when KRS 186.620(2) provides for an alternate penalty for operating a motor vehicle on a suspended license.
KY Commonwealth v. Minix, No. 1997-CA-001432-DG (Ky.App. 09/11/1998)
   if his or her alcohol concentration is between 0.05 and 0.10, there is no presumption — either way — that the defendant was or was not under the influence of alcohol; but the alcohol concentration level can be considered along with other evidence in determining the guilt or innocence of the defendant. KRS 189A.010 Section (2).

KY Beatus v. Commonwealth, 965 S.W.2d 167 (Ky.App. 03/20/1998)
     This Court also agrees with the McCracken Circuit Court that the state legislature intended that operators of commercial vehicles be considered "under the influence" if their blood alcohol level exceeded 0.04. However, we find that the McCracken Circuit Court erred in commingling these two statutory chapters by permitting the district court to elect to prosecute under one and penalize pursuant to the other.
     While Beatus was initially arrested and charged pursuant to KRS 189A.010, the Commonwealth elected to amend the charge and to proceed to trial pursuant to KRS 281A.210. In so electing, it bound itself to invoke the penalty provision contained at that chapter and did not have the option of reaching into KRS Chapter 189A in order to enforce and punish a violation pursuant to KRS 281A.
    Each statutory chapter is self-contained and complete; each reflects its own, distinct legislative purpose. The heightened, more stringent blood alcohol concentration of 0.04 contained at 281A.210 is a tougher standard than that applied to non-commercial drivers, implementing the legislative intent that drivers of huge commercial vehicles bear a heavier burden as to sobriety — an objective commensurate with the potentially greater havoc they would wreak on the public if driving under the influence. The penalty provision of KRS 281A is tailored to satisfy and correlate with that legislative intent.
     The General Assembly easily could have incorporated commercial and non-commercial drivers into one statutory scheme for the purpose of prosecuting and penalizing drinking/drunken drivers. In the alternative, it could have made specific reference to the separate penalty provisions in each chapter, announcing its intent that those provisions could be invoked and applied interchangeably. The legislative silence on this point reflects the clear and unambiguous legislative intent that these two chapters have two separate functions and create separate expectations of punishment in offenders.
     We hold that it was error for the trial court to permit the Commonwealth to prosecute under KRS 281A and to seek to penalize under KRS 189A. Therefore, we reverse the McCracken Circuit Court and remand with directions that judgment be entered consistent with this opinion.
KY Horton v. Commonwealth of Kentucky, No. 95-CA-3381-MR (Ky.App. 05/02/1997)
Just as Division of Driver Licensing, Dept. of Vehicle Regulation, Transp. Cabinet v. Bergmann, Ky., 740 S.W.2d 948 (1987) and Estis v. Commonwealth, Ky. App., 864 S.W.2d 317 (1993) taught us that there is but one DUI, and that designations of first, second, etc. are merely for enunciating penalties, Botkin v. Commonwealth, Ky., 890 S.W.2d 292 (1994) and Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996) teach us that there is still but one DUI under KRS 189A.010, and that the designation of "per se" or "under the influence" are merely ways of proving such violations. The amendments only relate to ". . . the severity of punishment. . . ." Botkin, 890 S.W.2d at 293 (emphasis original). The Court also stated: "[‘]It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.’" Id. at 294, quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L. Ed. 1683 (1948). The Court compared Kentucky’s statute to Pennsylvania’s "per se" statute and found them to be the same. Our Supreme Court then quoted Commonwealth v. Hernandez, 339 Pa. Super. 32, 488 A.2d 293, 301 (1984) with approval,
 
KY Nemeth v. Commonwealth of Kentucky, 944 S.W.2d 871 (Ky.App. 02/14/1997)
The appellant attempts to persuade us that we should not follow Heath, (supra) , since it was decided prior to the amendment of KRS 189A.010 which became effective July 1, 1991. That amendment enacted Kentucky’s "per se" DUI law which created a new offense for operating a motor vehicle with a blood or breath alcohol concentration of .10 percent or more. With the amendment of KRS 189A.010, a person need not necessarily be under the influence of intoxicants in order to be found guilty of the offense so long as the blood or breathalcohol concentration was .10 percent or more. We fail to see how this amendment in the statute would change our interpretation of whether or not a farm tractor is a "motor vehicle" within the meaning of the statute. Further, the appellant asserts that we held in Heath, (supra) , that a farm tractor is not a "motor vehicle" as defined in KRS 189.010(18). While we did so hold, we further held that a farm tractor was a "motor vehicle" for the purpose of KRS189A.010. To the extent that our holding in that case appears inconsistent herewith, we note that our observations in that case were only dicta.
KY Commonwealth of Kentucky v. Wirth, 936 S.W.2d 78 (Ky. 09/26/1996)
    The conduct proscribed in KRS 189A.010(1) (b) is not substantially different than under former law. What is different is subsection (a) which criminalizes the presence of chemicals in a defendant’s blood or breath. In our view, this provision does not create a new or separate offense, but merely provides an additional means by which a motor vehicle alcohol related offense may be committed. While an additional means of committing the offense has been created, the punishment remains one and the same. As we see it, therefore, the question is whether in circumstances where a defendant may be guilty of violating two or more sections of the same statute, but subjected only to a single punishment, is it proper for the prosecution to go forward with all available proof of statutory violations, and permit a conviction on whatever basis is supported by the evidence. The answer is in the affirmative. Robards v. Commonwealth, Ky., 419 S.W.2d 570 (1967).
    Accordingly, it is our determination that the trial court erred with respect to its prohibition against a prosecution pursuant to KRS 189A.010(1) upon multiple theories. Where there is evidence to prove one or more theories of the case, the Commonwealth may present all such evidence and have the jury render a verdict thereon.
  This Court rules that the B/A test result obtained within a reasonable time of operation, while admissible, does not make a prima facie case for violation of KRS 189A.010(1) (a). In order for the state to make a prima facie case there must be some evidence relating the BAC back to the time of operation.
KY Commonwealth of Kentucky v. Ramsey, 920 S.W.2d 526 (Ky. 04/25/1996)
Further, KRS 189A.010(4) provides the various penalties for persons who "violate[] the provisions of subsection (1)." The penalties are then delineated, the severity of punishment increasing with the number of violations of subsection (1). From the beginning, this Court has held that KRS 189A.010(4) "merely recognizes that one previously convicted of driving under the influence has the status of a prior offender, and can be penalized for having that status." Commonwealth v. Ball, Ky., 691 S.W.2d 207, 209 (1985). Consequently, the Court of Appeals reliance on the analysis in Clay was correct as subsection four (4) "is nothing more than a sentencing statute, with provision for enhancing the penalty for subsequent offenders." Clay v. Commonwealth, Ky., 818 S.W.2d 264, 265 (1991). The prior DUI convictions are not elements necessary to determine guilt. Id.
 
KY Lynch v. Commonwealth of Kentucky, 902 S.W.2d 813 (Ky. 04/20/1995)
KRS 189A.010(1) is sound legislation when viewed from the increased number of motor vehicles and multiplicity of accidents which, without elaboration, makes the careful operation of vehicles a matter of public concern. It was succinctly stated in a Court of Appeals’ opinion, which one could not improve upon, that KRS 189A.010 is crystal clear. If you consume alcohol or any other substance that impairs your driving ability, then you have an obligation to cease driving. Cruse v. Commonwealth, Ky.App., 712 S.W.2d 356 (1986)
 
KY Justice v. Commonwealth of Kentucky, 987 S.W.2d 306 (Ky. 12/17/1998)
First, the DUI statute and the AI statute require proof of an additional fact which the other does not. A DUI conviction requires proof that the defendant was "in physical control of a motor vehicle." KRS 189A.010(1). An AI conviction does not. The AI statute requires proof that the defendant "appeared in a public place manifestly under the influence of alcohol." KRS 222.202(1) (emphasis added). However, the DUI statute does not require any proof concerning whether the defendant was in a public place. Moreover, the DUI statute has been held to apply to a defendant who operates a motor vehicle on private land. Lynch v. Commonwealth, Ky., 902 S.W.2d 813, 814 (1995).
KY Anderson v. Commonwealth of Kentucky, 905 S.W.2d 871 (Ky.App. 09/15/1995)
 Unlike the PFO statute, this statute does not contain any limiting language that would require the January 19, 1990, convictions to be merged for purposes of enhancing this particular DUI. Running sentences concurrently does not affect the number of actual convictions. Though these convictions occurred on the same day, there were two separate plea agreements in two separate cases. The concurrent running of DUI sentences is irrelevant in determining the number of convictions under KRS 189A.010(4)(d) and (e).
KY Corman v. Commonwealth of Kentucky, 908 S.W.2d 122 (Ky.App. 04/28/1995)
While prosecution for a violation of KRS 189A.090 does require that the defendant have his license revoked or suspended for a violation of KRS 189A.010 (DUI), KRS 189A.090 is a completely separate offense from KRS 189A.010. Violations of KRS 189A.010 do not alone give rise to a charge under KRS 189A.090. The defendant must also have his license revoked (KRS 189A.070) for such violation, and then the defendant must be found to have been operating a motor vehicle while said license was revoked (and must be so convicted three times in order for the offense to be a felony under 189A.090(2)(c)). As the prior DUI convictions are separate convictions from the OMV on a revoked license charge, the case is distinguishable from Heady, (supra) , and under Eary, (supra) , it was not double enhancement for the court to allow the OMV for revoked license charge to enhance the DUI 4th charge for PFO purposes. Accordingly, we affirm.
KY Sutton v. Transportation Cabinet, 775 S.W.2d 933 (Ky.App. 04/07/1989)
The appellant filed this action for a declaratory judgment permitting him to enter a driver improvement program and to have his license reinstated after 30 days. The trial court denied the appellant’s motion for summary judgment and dismissed his claim. He argues on appeal that although he was previously convicted in Indiana of the same kind of offense as that set out in KRS 189A.010, he has, in fact, been convicted only once of violating KRS 189A.010. This statute applies only to operating a motor vehicle "anywhere in this state" and both KRS 189A.070 and 186.560(6) expressly apply only to violations of KRS 189A.010.
 While the General Assembly might well have related the length of license suspension to the number of convictions of driving under the influence anywhere, it has explicitly chosen that the length of revocation be related to the number of violations of KRS 189A.010. See Division of Driver Licensing v. Bergmann, Ky., 740 S.W.2d 948 (1987). It is undisputed that the appellant has been convicted only once of violating that statute. Neither we nor the cabinet is empowered to rewrite statutes to suit our notion of sound public policy when the General Assembly has clearly and unambiguously established a different notion.

 

KY Suttle v. Commonwealth of Kentucky, 774 S.W.2d 454 (Ky.App. 03/31/1989)
 The Commonwealth argues that this interpretation of the statute trivializes DUI convictions from foreign jurisdictions. It is asserted that it is illogical to exclude out-of-state DUI convictions inasmuch as the legislature intended to punish repeat offenders more severely. The Commonwealth argues that regardless of where prior convictions occur, if the second or third offense occurs in this state, then enhancement of punishment may be had. This argument may have some merit, but we do not consider our interpretation of KRS 189A.010 unduly narrow. We observe that our general recidivist statute (KRS 532.080) is all-inclusive with respect to prior felony convictions. It specifically includes foreignconvictions. KRS 189A.010 is silent with respect to DUI convictions from sister state and, as such, we believe our interpretation of the subject statute is a fair one. Moreover, we observe that the treatment differs as to DUI among the various states. In addition, we envision a practicable problem in proving foreign misdemeanor convictions where records may not be as carefully maintained as in felony offenses. All of this leads us to the conclusion that a policy of using foreign convictions as a basis for enhancement of punishment under KRS 189A.010 is a matter more appropriately directed to the legislature for debate. After legislative consideration, the judiciary can deal with a specific edict from that branch of government, free from the prophecy required under the statute as written.
 
KY Edgar E. Royalty v. Commonwealth of Kentucky, 749 S.W.2d 700 (Ky.App. 05/13/1988)
    One who has been convicted of engaging in the prohibited conduct of operating a motor vehicle anywhere in this state while under the influence of alcohol in violation of Section (1) ofKRS 189A.010, and who has the status at the time of such conviction of having been previously convicted within five years of such conviction of driving under the influence, is a previous offender and is subject to the enhancement provision of Section (2)(a), (b), and (c) of KRS 189A.010. (Emphasis ours).
   Additionally, common sense dictates that appellant was already a second time offender of KRS 189A.010 when he submitted to trial by jury on November 10, 1986, in Breckinridge County. To hold otherwise would grant the appellant a license to continue to drive intoxicated from his arrest until trial and judgment without the added penalty of KRS 189A.010(2)(b) or (c). We assume the Kentucky Legislature did not intend such a ridiculous result.

KY Division of Driver Licensing v. Bergmann, 740 S.W.2d 948 (Ky. 11/25/1987)
 KRS 189A.010 makes DUI a crime and sets out specific criminal penalties to be imposed upon conviction. KRS 186.560 requires the Transportation Cabinet to revoke a driver’s license pursuant to the mandatory revocation periods found in KRS 189A.070. The two statutory plans are completely separate and any characterization of a criminal conviction under KRS 189A.010(2) does not apply to the revocation period mandated by KRS 189A.070 and applied by the Cabinet.
 
KY Commonwealth of Kentucky v. Ball, 691 S.W.2d 207 (Ky. 06/13/1985)
KRS 189A.010 enhances the penalty for driving under the influence of alcohol, making it more severe than the former statute’s penalty. The new statute merely recognizes that one previously convicted of driving under the influence has the status of a prior offender, and can be penalized for having that status. When Ball was convicted of driving under the influence of alcohol under KRS 189A.010, he already had the status of being a prior offender of driving under the influence of an intoxicating beverage. We do not agree that using a conviction for driving under the influence obtained prior to the enactment of KRS 189A.010 violates the ex post facto clause of the United States Constitution, nor do we agree that KRS 189A.010 creates a new offense for which there can be no retroactive effect prior to July 13, 1984. Cf. Pettyway v. U.S., 216 F.2d 106 (6th Cir., 1954).
 
KY Hourigan v. Commonwealth of Kentucky, 962 S.W.2d 860 (Ky. 01/22/1998)
 By applying the test in Bruder to the present case, Appellants would not be considered to have been in custody at the time the police officer administered the three field sobriety tests. Appellants were required to perform the tests in view of the public on the city streets of Lexington. Consequently, this questioning was quite different from that performed at the stationhouse, as was the case in Miranda, supra. Because Appellants were not in custody, they were not entitled to be given Miranda warnings.
 
 
 
 
KRS 189A.020 Community labor program — Terms and conditions.
All community labor shall be under the supervision of the court and subject to the following:
(1)
(a) No period of labor shall be less than four (4) hours to qualify for satisfaction of a sentence;
(b) A "day" shall mean eight (8) hours of labor;
(c) A "month" shall mean twenty (20) days of labor;
(d) Periods of labor four (4) hours or longer may be cumulated to meet the requirements under this section;
(2) Labor shall be done for public agencies, nonprofit corporations or eleemosynary institutions only;
(3) Any agency for whom a person works shall agree to supervise such person and report to the court:
(a) The hours worked,
(b) The quality of the work,
(c) The nature of the work;
(4) An agency may refuse to accept persons under this program or to accept any particular person or persons sent by the court;
(5) The court shall maintain a list of agencies willing to accept and supervise persons sentenced under this program;
(6) The court may contract, at no cost to the state or participant, with any public agency or nonprofit corporation or eleemosynary institution for the supervision of persons in the program;
(7) No work performed under this program shall be deemed employment for any purpose nor shall the person performing such work be considered an employee;
(8) Failure to complete the community labor ordered by the court, to perform diligently at that labor, or to pay the fee required shall constitute contempt of court and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the community labor.
Effective: July 13, 1984
History: Created 1984 Ky. Acts ch. 165, sec. 2, effective July 13, 1984. 
 
 
Annotations:
 
Jones v. Commonwealth, No. 2006-SC-000802-DG (Ky. 3/19/2009) (Ky., 2009)
Dissent: The language of KRS 189A.120(1) prevents the prosecutor from agreeing to a request to amend the DUI charge. Further, it mandates that the prosecutor oppose a defense motion to amend the charge to a lesser offense. However, the language in KRS 189A.120 does not expressly prohibit a prosecutor from exercising independent discretion and seeking a more severe penalty under these circumstances. Further, in light of the prosecutor’s authority set out above, such action falls squarely within the authority reserved to the prosecutor. In turn, once the Commonwealth exercises its authority in seeking to prosecute the facts under an offense other than a "fourth or subsequent offense," the language of KRS 189A.010(5) (d) has no application. Neither do I agree with the majority’s understanding of "agree." It is clear from its reading that the whole purpose of KRS 189A.020(1) is to prohibit the defendant from procuring a reduced charge through plea negotiations. Otherwise, it would have been a simple matter for the legislature to have written that "a prosecuting attorney shall not move to amend the charge to a lesser offense……
 
 
 
KRS 189A.030 Terms of imprisonment for first and second offenders.
(1) Terms of imprisonment for first and second offenders under KRS 189A.010 shall, at the order of the court, be served on weekends or such other times as may preserve the employment or education of the offender, provided that no individual period of incarceration shall be less than twenty-four (24) hours.
(2) Children shall be detained pursuant to the applicable provisions of KRS Chapters 600 to 645.
Effective: April 10, 1988
History: Amended 1988 Ky. Acts ch. 350, sec. 140, effective April 10, 1988. — Amended 1986 Ky. Acts ch. 423, sec. 186, effective July 1, 1987. — Created 1984 Ky. Acts ch. 165, sec. 3, effective July 13, 1984. 
 
NO Annotations:
 
 
KRS 189A.040 Alcohol or substance abuse treatment and education programs — Sentencing offenders to programs — Regulation of programs — Appeals of decisions regarding licensure of education and treatment facilities and programs.
(1) In addition to any other penalty prescribed by KRS 189A.010(5)(a) or (6), the court shall sentence the person to attend an alcohol or substance abuse education or treatment program subject to the following terms and conditions for a first offender or a person convicted under KRS 189A.010(1)(f):
(a) The treatment or education shall be for a period of ninety (90) days and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program;
(b) Each defendant shall pay the cost of the education or treatment program up to his ability to pay but no more than the actual cost of the treatment;
(c) Upon written report to the court by the administrator of the program that the defendant has completed the program recommended by the administrator based upon the assessment of the defendant, the defendant shall be released prior to the expiration of the ninety (90) day period; and
(d) Failure to complete the education or treatment program or to pay the amount specified by the court for education or treatment shall constitute contempt, and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the education or treatment program.
(2) In addition to any other penalty prescribed by KRS 189A.010(5)(b), the court shall sentence the person to an alcohol or substance abuse treatment program subject to the following terms and conditions for a second offender:
(a) The sentence shall be for a period of one (1) year and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program;
(b) Each defendant shall pay the cost of the treatment program up to his ability to pay but no more than the actual cost of the treatment;
(c) Upon written report to the court by the administrator of the program that the defendant has completed the program recommended by the administrator based upon the assessment of the defendant, the defendant may be released prior to the expiration of the one (1) year period; and
(d) Failure to complete the treatment program or to pay the amount specified by the court for treatment shall constitute contempt of court and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending the completion of the treatment program.
(3) In addition to any other penalty prescribed by KRS 189A.010(5)(c) or (d), the court shall sentence the person to an alcohol or substance abuse treatment program subject to the following terms and conditions for a third or subsequent offender:
(a) The sentence shall be for a period of one (1) year and the program shall provide an assessment of the defendant’s alcohol or other substance abuse problems, which shall be performed at the start of the program. The program may be an inpatient or residential-type program;
(b) Each defendant shall pay the cost of the treatment program up to his ability to pay but no more than the actual cost of the program;
(c) A defendant, upon written recommendation to the court by the administrator of the program, may be released from the inpatient or residential program prior to the expiration of one (1) year but shall be retained in the program on an outpatient basis for the remainder of the year period; and
(d) Failure to complete the treatment program or to pay the amount specified by the court for treatment shall constitute contempt of court, and the court shall, in addition to any other remedy for contempt, reinstitute all penalties which were previously imposed but suspended or delayed pending completion of the treatment program.
(4) Costs of treatment or education programs which are paid from the service fee established by KRS 189A.050, or from state or federal funds, or any combination thereof, shall be deducted from the amount which the defendant must pay.
(5) For the purposes of this section, "treatment" means service in an alcohol or substance abuse education or treatment program or facility licensed, regulated, and monitored by the Cabinet for Health and Family Services for services as required under this section.
(6) The Cabinet for Health and Family Services shall promulgate administrative regulations for the licensure of education and treatment facilities and programs for offenders receiving education or treatment under this section. The criteria developed by the Cabinet for Health and Family Services shall include:
(a) Manner of assessment;
(b) Appropriate education and treatment plans; and
(c) Referrals to other treatment providers.
(7) The participating facilities and programs shall be required to abide by these standards and shall report completion to the Transportation Cabinet. Upon request, the facility or program shall report to the courts regarding the progress of offenders being treated pursuant to this section.
(8) Administrative decisions regarding the licensure of education and treatment facilities and programs may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with KRS Chapter 13B.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 18, effective July 15, 2010. — Amended 2005 Ky. Acts ch. 99, sec. 146, effective June 20, 2005. — Amended 2000 Ky. Acts ch. 467, sec. 3, effective October 1, 2000. — Amended 1998 Ky. Acts ch. 426, sec. 125, effective July 15, 1998. — Amended 1996 Ky. Acts ch. 318, sec. 75, effective July 15, 1996. — Amended 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 3, effective July 1, 1991. — Created 1984 Ky. Acts ch. 165, sec. 4, effective July 13, 1984. 
 
 
Annotations:
 
Commonwealth v. Reynolds, 136 S.W.3d 442 (Ky. 06/17/2004)
Any person who violates the provisions of subsection (1)(e) of this section shall have his driving privilege or operator’s license suspended by the court for a period of no less than thirty (30) days but no longer than six (6) months, and the person shall be fined no less than one hundred dollars ($100) and no more than five hundred dollars ($500), or sentenced to twenty (20) hours of community service in lieu of a fine. A person subject to the penalties of this subsection shall not be subject to penalties established in subsection (5) of this section or any other penalty established pursuant to KRS Chapter 189A, except those established in KRS 189A.040(1). (7) If the person is under the age of twenty-one (21) and there was an alcohol concentration of 0.08 or greater based on the definition of alcohol concentration in KRS 189A.005, the person shall be subject to the penalties established pursuant to subsection (5) of this section.
 
 
KRS 189A.045 Enrollment in alcohol or drug education or treatment programs — Attendance — Reporting and effect of failure to attend — Reporting of completion of program.
(1) When a court requires a defendant to enroll in an alcohol or drug education or treatment program pursuant to this chapter, it shall require the defendant to accomplish the enrollment within ten (10) days of the entry of judgment of conviction.
(2) When a defendant enrolls in the program ordered by the court, the administrator of the program or his authorized representative shall transmit to the court a certificate of enrollment within five (5) working days of the enrollment.
(3) If the court does not receive a certificate of enrollment from the administrator of a program to which the defendant has been assigned within twenty (20) days of the entry of judgment of conviction, the court shall hold a hearing requiring the defendant to show cause why he did not enroll.
(4) If a defendant enrolled in a drug or alcohol education or treatment program drops out of the program or does not maintain satisfactory attendance at the program, the administrator of the program or his authorized representative shall transmit to the court a notice describing the defendant’s failure to attend.
(5) Upon receipt of a notice of failure to attend a required alcohol or drug education or treatment program, the court shall hold a hearing requiring the defendant to show cause why he should not be held in contempt of court and be subject to the reinstatement of any penalties which may have been withheld pending completion of treatment.
(6) When a defendant completes the required alcohol or drug education or treatment program, the administrator of the program shall notify the court and the Transportation Cabinet of the defendant’s completion of the program.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 4, effective July 1, 1991. 
 
no Annotations:
 
 
KRS 189A.050 Service fee — Amount — Payment — Remedies for nonpayment — Use of revenue from fees collected.
(1) All persons convicted of violation of KRS 189A.010(1)(a), (b), (c), (d), or (e) shall be sentenced to pay a service fee of three hundred seventy-five dollars ($375), which shall be in addition to all other penalties authorized by law.
(2) The fee shall be imposed in all cases but shall be subject to the provisions of KRS 534.020 relating to the method of imposition and KRS 534.060 as to remedies for nonpayment of the fee.
(3) The first fifty dollars ($50) of each service fee imposed by this section shall be paid into the general fund, and the remainder of the revenue collected from the service fee imposed by this section shall be utilized as follows:
(a) Twelve percent (12%) of the amount collected shall be transferred to the Department of Kentucky State Police forensic laboratory for the acquisition, maintenance, testing, and calibration of alcohol concentration testing instruments and the training of laboratory personnel to perform these tasks;
(b) Twenty percent (20%) of the service fee collected pursuant to this section shall be allocated to the Department for Public Advocacy;
(c) One percent (1%) shall be transferred to the Prosecutor’s Advisory Council for training of prosecutors for the prosecution of persons charged with violations of this chapter and for obtaining expert witnesses in cases involving the prosecution of persons charged with violations of this chapter or any other offense in which driving under the influence is a factor in the commission of the offense charged;
(d) Sixteen percent (16%) of the amount collected shall be transferred as follows:
1. Fifty percent (50%) shall be credited to the traumatic brain injury trust fund established under KRS 211.476; and
2. Fifty percent (50%) shall be credited to the Cabinet for Health and Family Services, Department for Behavioral Health, Developmental and Intellectual Disabilities, for the purposes of providing direct services to individuals with brain injuries that may include long-term supportive services and training and consultation to professionals working with individuals with brain injuries. As funding becomes available under this subparagraph, the cabinet may promulgate administrative regulations pursuant to KRS Chapter 13A to implement the services permitted by this subparagraph;
(e) Any amount specified by a specific statute shall be transferred as provided in that statute;
(f) Forty-six percent (46%) of the amount collected shall be transferred to be utilized to fund enforcement of this chapter and for the support of jails, recordkeeping, treatment, and educational programs authorized by this chapter and by the Department for Public Advocacy; and
(g) The remainder of the amount collected shall be transferred to the general fund.
(4) The amounts specified in subsection (3)(a), (b), (c), and (d) of this section shall be placed in trust and agency accounts that shall not lapse.
Effective: July 12, 2012
History: Amended 2012 Ky. Acts ch. 146, sec. 16, effective July 12, 2012; and ch. 158, sec. 11, effective July 12, 2012. — Amended 2010 Ky. Acts ch. 149, sec. 19, effective July 15, 2010. — Amended 2008 Ky. Acts ch. 158, sec. 6, effective July 1, 2008. — Amended 2007 Ky. Acts ch. 85, sec. 213, effective June 26, 2007. — Amended 2005 Ky. Acts ch. 99, sec. 147, effective June 20, 2005. — Amended 2004 Ky. Acts ch. 137, sec. 1, effective July 13, 2004. — Amended 2000 Ky. Acts ch. 467, sec. 4, effective October 1, 2000. — Amended 1994 Ky. Acts ch. 395, sec. 3, effective July 15, 1994. — Created 1984 Ky. Acts ch. 165, sec. 5, effective July 13, 1984. Legislative Research Commission Note (7/12/2012). This statute was amended by 2012 Ky. Acts chs. 146 and 158, which are in conflict. Under KRS 446.250, Acts. ch. 146, which was last enacted by the General Assembly, prevails.  Legislative Research Commission Note (6/26/2007). 2007 Ky. Acts ch. 85, relating to the creation and organization of the Justice and Public Safety Cabinet, instructs the Reviser of Statutes to correct statutory references to agencies and officers whose names have been changed in that Act. Such a correction has been made in this section.
 
 
Annotations:
 
 
[U] Ingram v. Commonwealth (Ky. App., 2013) 2012-CA-000245-MR February 1, 2013
In June 2011, the Fayette County grand jury indicted Ingram on charges of driving on a DUI-suspended license, third offense, pursuant to … (KRS) 189A.090, a Class D felony; failure of owner to maintain required insurance pursuant to KRS 304.39-080, a Class B misdemeanor; and no taillights pursuant to KRS 189.050(1), which is a violation. Ingram entered a not guilty plea during his arraignment, and he later moved to suppress the stop of his vehicle and the fruits of the stop.
Next, we hold that based upon the circuit court’s finding that the taillights were not working, the circuit court properly held that Officer Ockerman had a reasonable and articulable suspicion of criminal activity to justify her stop of Ingram’s vehicle. KRS 189.050(1) provides that "[a]ll motor vehicles shall display at the rear two (2) red lights visible when lighted for at least five hundred (500) feet, unless the motor vehicle was originally equipped with only one (1) such light." Based upon Officer Ockerman’s observation while Ingram was driving his vehicle ahead of her, Ingram’s vehicle was in violation of this statute because his taillights were not illuminated. Accordingly, Ingram’s arguments that the taillights were working and that he was doing nothing wrong are without merit. Therefore, we hold that the circuit court properly denied Ingram’s motion to suppress.
 
Movant v. Commonwealth of Kentucky, 736 S.W.2d 317 (Ky. 07/02/1987)
  The nature of this service fee as a cost, rather than an additional criminal penalty, is confirmed by subsection three (3) of KRS 189A.050:
   "The service fee shall be utilized to fund enforcement of this chapter and for the support of jails, record keeping, and treatment and education programs authorized by this chapter."
     In contrast, if a criminal penalty, the service fee would be subject to KRS 431.100, recently reenacted (see Acts 1986, ch. 336, § 8, eff. July 1, 1986). This statute provides that with certain specified exceptions which do not include the service fee in KRS 189A.050, "all fines and forfeitures imposed by law or ordinance shall inure to and vest in the Commonwealth."
   However, the fact that this service fee should be classified as a cost, and not a fine or penalty, does not mean that I think that the movant, William Beane, was entitled to relief. His affidavit under KRS 31.120 was insufficient to entitle him to relief under KRS 453.190.The former statute sets out the circumstances justifying the appointment of counsel for an indigent person and the latter statute sets out the circumstances justifying the waiver of court costs and statutory fees. KRS 453.190(2) requires a greater degree of indigency than KRS 31.120. KRS 453.190 requires proof that the defendant cannot pay "without depriving himself or his dependants of the necessities of life, including food, shelter or clothing."
     The within case should be reversed and remanded to the trial judge in District Court with directions to consider waiving costs, including the service fee, under KRS 453.190, if the defendant furnishes proof, as required by the applicable statute.

[U] McPeak v. Commonwealth, No. 2002-CA-001214-MR (Ky.App. 05/02/2003)
KRS 189A.050(1) All persons convicted of violation of KRS 189.010 shall be sentenced to pay a service fee of two hundred dollars ($200), which shall be in addition to all other penalties authorized by law.
 
 
KRS 189A.070 License revocations — Time periods — Completion of alcohol or substance treatment or education program required before reinstatement.
(1) Unless the person is under eighteen (18) years of age, in addition to the penalties specified in KRS 189A.010, a person convicted of violation of KRS 189A.010(1)(a), (b), (c), (d), or (e) shall have his license to operate a motor vehicle or motorcycle revoked by the court as follows:
(a) For the first offense within a five (5) year period, for a period of not less than thirty (30) days nor more than one hundred twenty (120) days;
(b) For the second offense within a five (5) year period, for a period of not less than twelve (12) months nor more than eighteen (18) months;
(c) For a third offense within a five (5) year period, for a period of not less than twenty-four (24) months nor more than thirty-six (36) months; and
(d) For a fourth or subsequent offense within a five (5) year period, sixty (60) months.
(e) For purposes of this section, "offense" shall have the same meaning as described in KRS 189A.010(5)(e).
(2) In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered.
(3) In addition to the period of license revocation set forth in subsection (1) or (7) of this section, no person shall be eligible for reinstatement of his privilege to operate a motor vehicle until he has completed the alcohol or substance abuse education or treatment program ordered pursuant to KRS 189A.040.
(4) A person under the age of eighteen (18) who is convicted of violation of KRS 189A.010(1)(a), (b), (c), (d), or (e) shall have his license revoked by the court until he reaches the age of eighteen (18) or shall have his license revoked as provided in subsection (1) or (7) of this section, whichever penalty will result in the longer period of revocation or court-ordered driving conditions.
(5) Licenses revoked pursuant to this chapter shall forthwith be surrendered to the court upon conviction. The court shall transmit the conviction records, and other appropriate information to the Transportation Cabinet. A court shall not waive or stay this procedure.
(6) Should a person convicted under this chapter whose license is revoked fail to surrender it to the court upon conviction, the court shall issue an order directing the sheriff or any other peace officer to seize the license forthwith and deliver it to the court.
(7) A person whose license has been revoked pursuant to subsection (1)(b), (c), or (d) of this section may move the court to reduce the applicable minimum period of revocation by one-half (1/2), but in no case less than twelve (12) months. The court may, upon a written finding in the record for good cause shown, order such a period to be reduced by one-half (1/2), but in no case less than twelve (12) months, if the following conditions are satisfied:
(a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2);
(b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and
(c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the applicable minimum period of revocation provided for under subsection (1)(b), (c), or (d) of this section nor for more than the respective maximum period of revocation provided for under subsection (1)(b), (c), or (d) of this section.
(8) Upon a finding of a violation of any of the conditions specified in subsection (7) of this section or of the order permitting any reduction in a minimum period of revocation that is issued pursuant thereto, the court shall dissolve such an order and the person shall receive no credit toward the minimum period of revocation required under subsection (1)(b), (c), or (d) of this section.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 20, effective July 15, 2010. — Amended 2002 Ky. Acts ch. 171, sec. 2, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 467, sec. 5, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 12, effective October 1, 1996. — Amended 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 5, effective July 1, 1991. — Created 1984 Ky. Acts ch. 165, sec. 7, effective July 13, 1984. 
 
 
Annotations:
 
Henry v. Commonwealth, No. 2006-CA-000759-MR (Ky. App. 6/15/2007) (Ky. App., 2007)
As previously noted, Appellant contends that his driver’s license was not "DUI suspended" as a result of the July 2000 offense upon which his December 2000 conviction was based. However, when Appellant pled guilty to that charge of DUI, fourth offense, his license was revoked for sixty months, i.e., five years, from the date of his arrest for that offense, pursuant to KRS 189A.070(1)(d). See also KRS 189A.070(2). Therefore, when Appellant committed the present offenses in May 2005, his license was still suspended pursuant to that prior DUI conviction, and his current charge of Operating a Motor Vehicle on a DUI Suspended License, pursuant to KRS 189A.090, is proper.
 
Hubbard v. Commonwealth, 145 S.W.3d 419 (Ky.App. 09/10/2004)
The Commonwealth argues that the Dixon case was overruled by the 2000 amendments to KRS 189A.090. It also contends that Hubbard’s license was revoked for violation of KRS 189A.070 at the time of this incident. We find neither argument to be persuasive. KRS 189A.070 relates to the revocation or suspension of license due to violation of the DUI statute. According to the undisputed testimony of the Transportation Cabinet employee, Hubbard’s license was no longer revoked or suspended for DUI at the time of this incident. Rather, he was revoked or suspended only under KRS 189A.090.
 
Pletcher v. Commonwealth, 992 S.W.2d 852 (Ky.App. 09/25/1998)
KRS 189A.070(1)(c) mandates that the license of a person who is convicted of a third-offense DUI within a five-year period shall be revoked by the court for two years. The habitual violator statutory scheme, by contrast, imposes the burden on county attorneys to initiate such proceedings in district court by filing informations against persons who are certified by the transportation cabinet as habitual violators as defined in KRS 186.642. If the court determines after a hearing that such a person is a habitual violator, the court must order that person not to operate a motor vehicle upon public highways, and the transportation cabinet is prohibited from issuing an operator’s license to that person until the expiration of the statutory period of time for the particular offense involved.
        We find no basis for concluding that KRS 189A.070(1)(c) and the habitual violator statutes are repugnant and irreconcilable. Indeed, there is no reason that a statutorily required two-year suspension of a person’s operator’s license after a third-offense DUI conviction cannot be reconciled with a five-year suspension of eligibility for an operator’s license after a related habitual violator civil proceeding. In the first place, one proceeding is a criminal prosecution, while the other is a civil matter involving non-criminal sanctions. Morever, nothing in the applicable statutes precludes the concurrent running of periods of license suspension and license ineligibility. Thus, while imposing suspensions under two different statutes may have a duplicative effect, the applicable criminal suspension and habitual violator statutes are not thereby rendered so repugnant and irreconcilable that one statute must be deemed to repeal the other by implication. Instead, we believe that the legislative intent embodied in the statutes at issue was to ensure that third-offense DUI violators’ licenses would be revoked for at least two years pursuant to KRS 189A.070(1)(c), even in the absence of habitual violator prosecutions. Viewed in this light, the legislation in issue can be harmonized and interpreted so as to give effect to all of the questioned statutes, consistent with our duty to do so. Commonwealth v. Halsell, Ky., 934 S.W.2d 552 (1996). Accordingly, we decline to hold that KRS 189A.070(1)(c) was legislatively intended to repeal by implication KRS 186.646(1).
 
Dixon v. Commonwealth, 982 S.W.2d 222 (Ky.App. 09/11/1998)
    However, after the twelve-month period of suspension had expired, Dixon’s failure to attend the alcohol abuse education program then became the reason that his license remained suspended. Under that circumstance, we do not believe that Dixon can be prosecuted under KRS 189A.090, when KRS 186.620(2) provides for an alternate penalty for operating a motor vehicle on a suspended license.
     Because we believe the language in KRS 189A.070 creates a period of suspension which bars reinstatement, which can be followed by a period of suspension during which one can become eligible for reinstatement,we believe that the rule of lenity followed by our highest Court should apply. The criminal sanctions provided for violations of KRS 186.620(2) should apply to Dixon, rather than the criminal sanctions in KRS 189A.090. See Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985); Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983).

KY Commonwealth of Kentucky v. Duncan, 939 S.W.2d 336 (Ky. 02/27/1997)
    Pursuant to KRS 186.570, the Transportation Cabinet may independently suspend the licenses of motorists in nearly a dozen instances, including but not limited to situations where a motorist has, by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in death or injury; has a mental or physical disability which makes it unsafe to drive; or has failed to pay child support which would equal one (1) year of nonpayment.
    In addition to KRS 186.570, the Transportation Cabinet may also independently suspend the license of motorists in the following situations: children under the age of eighteen (18) who have dropped out of school or are academically deficient, KRS 186.560(7); suspension of the license of a minor upon the death of the parent or guardian who signed the minor’s license application, KRS 186.470(3); suspension of the license of individuals against whom a civil judgment, involving an automobile accident, remains unsatisfied, KRS 187.410.
      The admissibility of a certified copy of a motorist’s driving history for conviction of driving on a suspended license has been upheld in a number of other jurisdictions. See State v. Stidham, 164 Ariz. 145, 791 P.2d 671 (Ariz. Ct. App. 1990); Borton v. State, 563 N.E.2d 182 (Ind. Ct. App. 1990); State v. McCallum, 321 Md. 451, 583 A.2d 250 (Md. 1991); State v. Berrey, 803 S.W.2d 37 (Mo. Ct. App. 1990); City of Billings v. Lindell, 236 Mont. 519, 771 P.2d 134 (Mont. 1989); State v. Zalta, 217 N.J. Super. 209, 525 A.2d 328 (N.J. Super. Ct. App. Div. 1987). Our Court of Appeals has previously held that driving history records can be used in a prosecution under KRS 189A.090 to prove that the suspension in effect at the time of the offense was for DUI, where independent evidence of the DUI convictions was introduced. Toppass v. Commonwealth, Ky. App., 799 S.W.2d 587, 589 (1990).
      As previously indicated, we do not believe that the introduction of the certified copy of the driving history under the present facts is contrary to the decision in Willis and its strict reliance on the best evidence rule as it is the suspension status, not a conviction, which is essential to the charge. Support for distinguishing Willis on similar grounds is found in Hall v. Commonwealth, Ky., 817 S.W.2d 228 (1991), overruled in part by Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996)
 
KY Corman v. Commonwealth of Kentucky, 908 S.W.2d 122 (Ky.App. 04/28/1995)
While prosecution for a violation of KRS 189A.090 does require that the defendant have his license revoked or suspended for a violation of KRS 189A.010 (DUI), KRS 189A.090 is a completely separate offense from KRS 189A.010. Violations of KRS 189A.010 do not alone give rise to a charge under KRS 189A.090. The defendant must also have his license revoked (KRS 189A.070) for such violation, and then the defendant must be found to have been operating a motor vehicle while said license was revoked (and must be so convicted three times in order for the offense to be a felony under 189A.090(2)(c)). As the prior DUI convictions are separate convictions from the OMV on a revoked license charge, the case is distinguishable from Heady, (supra) , and under Eary, (supra) , it was not double enhancement for the court to allow the OMV for revoked license charge to enhance the DUI 4th charge for PFO purposes. Accordingly, we affirm.
 
KY Butler v. Groce, 880 S.W.2d 547 (Ky. 05/26/1994) 
It is the holding of this Court that license revocation periods provided in KRS 189A.070 are mandatory and not subject to the discretion of the district court. It is our further holding that district courts have jurisdiction to issue hardship licenses pursuant to KRS 189A.410 only to true first offenders.
 
KY Division of Driver Licensing v. Bergmann, 740 S.W.2d 948 (Ky. 11/25/1987)
 The statutory system relating to drunk drivers enacted by the 1984 General Assembly separates the DUI criminal penalties from the DUI license revocation provisions. KRS 189A.010 makes DUI a crime and sets out specific criminal penalties to be imposed upon conviction. KRS 186.560 requires the Transportation Cabinet to revoke the drivers license pursuant to the mandatory revocation periods found in KRS 189A.070. The characterization of the conviction under KRS 189A.010(2) by a court does not control the revocation period required by KRS 189A.070.
  Due process rights relating to the revocation of a drivers license are protected by the statutory license revocation system pursuant to Mathews v. Eldridge, supra. The so-called Slammer Bill of 1984 establishes specific mandatory revocation periods which are imposed by the Transportation Cabinet which has no discretion in the length of the revocation period imposed. License revocations are based solely on proper criminal conviction records which the courts are statutorily required to submit to the Cabinet. There is no additional question of fact to be resolved. Upon notification by the Cabinet of license revocation, a driver has the opportunity to correct any clerical error.

KY Sutton v. Transportation Cabinet, 775 S.W.2d 933 (Ky.App. 04/07/1989)
 This statute applies only to operating a motor vehicle "anywhere in this state" and both KRS 189A.070 and 186.560(6) expressly apply only to violations of KRS 189A.010.
 
KY Commonwealth of Kentucky v. Steiber, 697 S.W.2d 135 (Ky. 09/26/1985)
Together KRS 189A.070 and the amended KRS 186.560 still substantially reflect the former KRS 186.560. KRS 186. 560 (1)(b) was amended to eliminate offenses covered under the new act and KRS 189A.060, 189A.070 and 189A.080 were specifically referenced back into the amended KRS 186.560. The new act has only changed the point in time when the license is revoked.
 
KY Praete v. Commonwealth of Kentucky, 722 S.W.2d 602 (Ky.App. 01/09/1987)
Section (1) of KRS 189A.070 provides that if a person 18 years of age or older is convicted of operating a motor vehicle while under the influence of alcohol or other impairing substance, that person’s driver’s license shall be revoked for six months for the first offense, 12 months for the second, and 24 months for subsequent offenses. Section (2) of the statute provides that if a person under the age of eighteen is convicted of such an offense, his driver’s license shall be revoked until he reaches the age of 18 or for the period of time set out in Section (1), whichever is longer.
 
 
KRS 189A.080 Surrender and forwarding of suspended or revoked licenses.
All licenses suspended or revoked pursuant to KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220 shall be surrendered to the court and forwarded to the Transportation Cabinet.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 6, effective October 1, 2000. — Created 1984 Ky. Acts ch. 165, sec. 8, effective July 13, 1984. 
 
 
Annotations:
 
Commonwealth of Kentucky v. Steiber, 697 S.W.2d 135 (Ky. 09/26/1985)
 The new driving under the influence statute revokes a driver’s license upon conviction. The revocation is court administered under KRS 189A.080. All previous revocations, under the former KRS 186.560, had been administrative acts of the Transportation Cabinet. The new statute does not change the ministerial nature of the revocation.
  
 
KRS 189A.085 Surrender and impoundment of motor vehicle license plates — Hardship exception for affected individuals other than offender.
(1) Unless the court orders installation of an ignition interlock device under KRS 189A.340, upon the conviction of a second or subsequent offense of KRS 189A.010, a person shall have the license plate or plates on all of the motor vehicles owned by him or her, either solely or jointly, impounded by the court of competent jurisdiction in accordance with the following procedures:
(a) At the final sentencing hearing, the person who has been convicted of a second or subsequent offense of KRS 189A.010(1)(a), (b), (c), (d), or (e) shall physically surrender any and all license plate or plates currently in force on any motor vehicle owned either individually or jointly by him or her to the court. The order of the court suspending the license plate or plates shall not exceed the time for the suspension of the motor vehicle operator’s license of the second or subsequent offender as specified in KRS 189A.070.
(b) The clerk of the court shall retain any surrendered plate or plates and transmit all surrendered plate or plates to the Transportation Cabinet in the manner set forth by the Transportation Cabinet in administrative regulations promulgated by the Transportation Cabinet.
(2) Upon application, the court may grant hardship exceptions to family members or other individuals affected by the surrender of any license plate or plates of any vehicle owned by the second or subsequent offender. Hardship exceptions may be granted by the court to the second or subsequent offender’s family members or other affected individuals only if the family members or other affected individuals prove to the court’s satisfaction that their inability to utilize the surrendered vehicles would pose an undue hardship upon the family members or affected other individuals. Upon the court’s granting of hardship exceptions, the clerk or the Transportation Cabinet as appropriate, shall return to the family members or other affected individuals the license plate or plates of the vehicles of the second or subsequent offender for their utilization. The second or subsequent offender shall not be permitted to operate a vehicle for which the license plate has been suspended or for which a hardship exception has been granted under any circumstances.
(3) If the license plate of a jointly owned vehicle is impounded, this vehicle may be transferred to a joint owner of the vehicle who was not the violator.
(4) If the license plate of a motor vehicle is impounded, the vehicle may be transferred.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 21, effective July 15, 2010. — Created 2000 Ky. Acts ch. 467, sec. 19, effective October 1, 2000.
 
no Annotations:
 
 
KRS 189A.090 Operating motor vehicle while license is revoked or suspended for driving under the influence prohibited — Operating motor vehicle without required ignition interlock device prohibited — Penalties.
(1) No person shall operate or be in physical control of a motor vehicle while his license is revoked or suspended under KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220, or operate or be in physical control of a motor vehicle without a functioning ignition interlock device in violation of KRS 189A.345(1).
(2) In addition to any other penalty imposed by the court, any person who violates subsection (1) of this section shall:
(a) For a first offense within a five (5) year period, be guilty of a Class B misdemeanor and have his license revoked by the court for six (6) months, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e), in which event he shall be guilty of a Class A misdemeanor and have his license revoked by the court for a period of one (1) year;
(b) For a second offense within a five (5) year period, be guilty of a Class A misdemeanor and have his license revoked by the court for one (1) year, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of two (2) years;
(c) For a third or subsequent offense within a five (5) year period, be guilty of a Class D felony and have his license revoked by the court for two (2) years, unless at the time of the offense the person was also operating or in physical control of a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e), in which event he shall be guilty of a Class D felony and have his license revoked by the court for a period of five (5) years.
(3) The five (5) year period under this section shall be measured in the same manner as in KRS 189A.070.
(4) After one (1) year of the period of revocation provided for in subsection (2)(b) or (c) of this section has elapsed, a person whose license has been revoked pursuant to either of those subsections may move the court to have an ignition interlock device installed for the remaining portion of the period of revocation. The court may, upon a written finding in the record for good cause shown, order an ignition interlock device installed if the following conditions are satisfied:
(a) The person shall not operate a motor vehicle or motorcycle without an ignition interlock device as provided for in KRS 189A.340(2);
(b) The person shall not operate a motor vehicle or motorcycle at any other time and for any other purposes than those specified by the court; and
(c) The ignition interlock device shall be installed on the motor vehicle or motorcycle for a period of time not less than the period of revocation required for the person under subsection (2)(b) or (c) of this section.
(5) Upon a finding of a violation of any of the conditions specified in subsection (4) of this section or of the order permitting the installation of an ignition interlock device in lieu of the remaining period of revocation that is issued pursuant thereto, the court shall dissolve such an order and the person shall receive no credit toward the remaining period of revocation required under subsection (2)(b) or (c) of this section.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 22, effective July 15, 2010. — Amended 2002 Ky. Acts ch. 171, sec. 3, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 467, sec. 7, effective October 1, 2000. — Amended 1991 1st Extra. Sess. Acts ch. 15, sec. 22, effective July 1, 1991. — Created 1984 Ky. Acts ch. 165, sec. 9, effective July 13, 1984.
 
 
Annotations:
 
[U] Ingram v. Commonwealth (Ky. App., 2013) 2012-CA-000245-MR February 1, 2013
In June 2011, the Fayette County grand jury indicted Ingram on charges of driving on a DUI-suspended license, third offense, pursuant to … (KRS) 189A.090, a Class D felony; failure of owner to maintain required insurance pursuant to KRS 304.39-080, a Class B misdemeanor; and no taillights pursuant to KRS 189.050(1), which is a violation. Ingram entered a not guilty plea during his arraignment, and he later moved to suppress the stop of his vehicle and the fruits of the stop.
 
Bagby v. Commonwealth (Ky. App., 2012) AUGUST 17, 2012
On December 14, 2010, Bagby filed a motion to suppress the evidence collected in conjunction with the drug charges. In her motion, Bagby contended that police were aware – at or near the beginning of their investigation – that her operator’s license had been suspended as part of a DUI conviction. Nonetheless, the police observed or encouraged her (through the use of a confidential informant) to drive her vehicle in violation of the provisions of KRS 189A.090. She argued that law enforcement officials had acted contrary to public policy by failing to arrest her immediately upon observing her operate a vehicle without a license and that their failure to arrest her promptly was essentially an attempt to involve her in more serious criminal offenses. Bagby argued that this entrapment-like conduct tainted the evidence and rendered it inadmissible under the exclusionary rule pertaining to the Fourth Amendment. ….
Instead of arresting [Bagby] as soon as they learned she was driving on a suspended license, at which time there was only one non-recorded buy from [Bagby], police waited and developed their investigation into a stronger case with two additional recorded transactions between [Bagby] and the [confidential informant].)
Bagby cannot demonstrate that any of the evidence obtained against her was a violation of her rights under the Fourth Amendment. Nor can we agree that any evidence was gathered as either the direct or the indirect result of any illegal police conduct. Consequently, the exclusionary rule does not apply. The trial court did not err by denying Bagby’s motion to suppress the evidence
 
Ingram v. Commonwealth (Ky. App., 2013)FEBRUARY 1, 2013
In June 2011, the Fayette County grand jury indicted Ingram on charges of driving on a DUI-suspended license, third offense, pursuant to Kentucky Revised Statutes (KRS) 189A.090, a Class D felony; …..; and no taillights pursuant to KRS 189.050(1), which is a violation. Ingram entered a not guilty plea during his arraignment, and he later moved to suppress the stop of his vehicle and the fruits of the stop.
Next, we hold that based upon the circuit court’s finding that the taillights were not working, the circuit court properly held that Officer Ockerman had a reasonable and articulable suspicion of criminal activity to justify her stop of Ingram’s vehicle. Based upon Officer Ockerman’s observation while Ingram was driving his vehicle ahead of her, Ingram’s vehicle was in violation of this statute because his taillights were not illuminated. Accordingly, Ingram’s arguments that the taillights were working and that he was doing nothing wrong are without merit. Therefore, we hold that the circuit court properly denied Ingram’s motion to suppress.
 
Jones v. Commonwealth, No. 2006-SC-000802-DG (Ky. 3/19/2009) (Ky., 2009)
KRS 189A.090(2)(c) provides that operating a vehicle with a DUI-suspended license third offense is a Class D felony.
 
Greene v. Com., 244 S.W.3d 128 (Ky. App., 2008)
 On June 30, 2005, a Hardin County grand jury returned an indictment charging Robert E. Greene with one count each of operating a motor vehicle with an alcohol concentration of or above 0.08(DUI), fourth offense (KRS 189A:010); and operating a motor vehicle while his license was revoked or suspended for driving under the influence (KRS 189A.090). Prior to trial, Greene moved to suppress evidence seized and statements which he made following a traffic stop on April 20, 2005. Following an evidentiary hearing, the trial court denied the motion.
 
KY Commonwealth v. Parson, 144 S.W.3d 775 (Ky. 06/17/2004)
As of May 30, 2000, KRS 189A.090 did not require that the prior OSL/DUI convictions have occurred within five years of the present offense . See Commonwealth v. Garnett, Ky. App ., 8 S .W .3d 573, 575 (1999) . That omission was corrected by a 2000 amendment that did not become effective until October 1, 2000 . 2000 Ky. Acts, ch. 467, § 7 . Now see KRS 189A .090(3).
 
KY Hubbard v. Commonwealth, 145 S.W.3d 419 (Ky.App. 09/10/2004)
 If a person is convicted of a second offense of operating a motor vehicle on a DUI-suspended license, he is guilty of a Class A misdemeanor and his license is revoked for one year, unless he was also violating the DUI statute at the time, in which case he is guilty of a Class D felony and his license is revoked for two years. KRS 189A.090(2)(b). Claiming that the June 14, 2002, incident was Hubbard’s second offense and that he was DUI when he committed it, the Commonwealth prosecuted the present offense as a Class D felony. It is the prosecution for this offense that Hubbard challenges.
    However, the defendant had not enrolled in an alcohol abuse education program as required by KRS 189A.070(3). Therefore, his license had not been reinstated. In reversing the circuit court’s judgment of conviction, a panel of this court concluded that the defendant could not be prosecuted under KRS 189A.090 because the revocation or suspension period for the prior DUI offense had expired. Id. at 224.
   The Commonwealth argues that the Dixon case was overruled by the 2000 amendments to KRS 189A.090. It also contends that Hubbard’s license was revoked for violation of KRS 189A.070 at the time of this incident. We find neither argument to be persuasive. KRS 189A.070 relates to the revocation or suspension of license due to violation of the DUI statute. According to the undisputed testimony of the Transportation Cabinet employee, Hubbard’slicense was no longer revoked or suspended for DUI at the time of this incident. Rather, he was revoked or suspended only under KRS 189A.090.
  Therefore, we reverse the portion of the judgment of the Campbell Circuit Court which convicts Hubbard of operating a motor vehicle on a DUI-suspended license, second offense, while under the influence of intoxicants, and remand this case for the entry of an order dismissing that charge.
 
 [U] Thomas v. Commonwealth, No. 2003-CA-000166-MR (Ky.App. 03/05/2004)
 The Commonwealth contends that DUI should not be characterized as an element or lesser included offense of aggravated driving on a suspended license. That offense, rather, is the unlicensed driving, the elements of which differ from those of DUI. The DUI, the Commonwealth maintains, is merely a sentencing factor justifying a stiffer penalty.
    The United States Supreme Court, however, has rejected this approach. In Apprendi v. New Jersey, the Court ruled that "if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact–no matter how the State labels it–constitutes an element [of the offense]." In Apprendi the Court was concerned with the constitution’s jury-trial and beyond-a reasonable-doubt guarantees, not with the Double Jeopardy Clause. Recently, however, Justice Scalia (writing on behalf of two other justices) observed, "[w]e can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an ‘offence’ for purposesof the Fifth Amendment’s Double Jeopardy Clause."We agree.
 
KY Commonwealth Transportation Cabinet v. Mohney, 107 S.W.3d 907 (Ky.App. 02/21/2003)
However, we do note that Mohney was charged with operating a motor vehicle on a suspended license pursuant to KRS 186.620(2), not with operating a motor vehicle on a license suspended for DUI pursuant to KRS 189A.090. In prosecuting a suspended- license charge based on the former statute, it is not necessary to prove a priorconviction. Rather, it is only necessary that the Commonwealth prove that the individual was operating a vehicle while his or her license was suspended. It is the license suspension, and not a conviction, which is essential to establishment of the charge of operating a motor vehicle on a suspended license. The basis for the suspension is irrelevant. In fact, requiring proof of a prior conviction in a charge for driving on a suspended license may be impossible in some cases because no court conviction is necessary if the Cabinet independently suspends a motorist’s license. Commonwealth v. Duncan, Ky., 939 S.W.2d 336, 337 (1997).
 
KY Commonwealth v. Garnett, 8 S.W.3d 573 (Ky.App. 04/16/1999)
 Unlike the DUI statute, KRS 189A.090 does not include a time limitation on the use of prior OSL convictions to enhance subsequent convictions. The Commonwealth argues that thetrial court erred when it added the requirement that in order to use a prior conviction for enhancement purposes under KRS 189A.090 the conviction must have occurred within a five-year period. We agree.
 
KY Dixon v. Commonwealth, 982 S.W.2d 222 (Ky.App. 09/11/1998)
   Because we believe the language in KRS 189A.070 creates a period of suspension which bars reinstatement, which can be followed by a period of suspension during which one can become eligible for reinstatement, we believe that the rule of lenity followed by our highest Court should apply. The criminal sanctions provided for violations of KRS 186.620(2) should apply to Dixon, rather than the criminal sanctions in KRS 189A.090. See Roney v. Commonwealth, Ky., 695 S.W.2d 863 (1985); Haymon v. Commonwealth, Ky., 657 S.W.2d 239 (1983).
 
KY Dixon v. Commonwealth, 982 S.W.2d 222 (Ky.App. 09/11/1998)
   However, after the twelve-month period of suspension had expired, Dixon’s failure to attend the alcohol abuse education program then became the reason that his license remained suspended. Under that circumstance, we do not believe that Dixon can be prosecuted under KRS 189A.090, when KRS 186.620(2) provides for an alternate penalty for operating a motor vehicle on a suspended license.
 
KY Corman v. Commonwealth of Kentucky, 908 S.W.2d 122 (Ky.App. 04/28/1995)
    While prosecution for a violation of KRS 189A.090 does require that the defendant have his license revoked or suspended for a violation of KRS 189A.010 (DUI), KRS 189A.090 is a completely separate offense from KRS 189A.010. Violations of KRS 189A.010 do not alone give rise to a charge under KRS 189A.090. The defendant must also have his license revoked (KRS 189A.070) for such violation, and then the defendant must be found to have been operating a motor vehicle while said license was revoked (and must be so convicted three times in order for the offense to be a felony under 189A.090(2)(c)). As the prior DUI convictions are separate convictions from the OMV on a revoked license charge, the case is distinguishable from Heady, (supra) , and under Eary, (supra) , it was not double enhancement for the court to allow the OMV for revoked license charge to enhance the DUI 4th charge for PFO purposes. Accordingly, we affirm.
 
Estis v. Commonwealth of Kentucky, 864 S.W.2d 317 (Ky.App. 11/05/1993)
 The appellant argues that the Bourbon Circuit Court erred in ruling that he could be convicted of a third offense under KRS 189A.090(2)(c) when he was never convicted of a second offense. The Commonwealth states that KRS 189A.090 is unambiguous and creates a single offense for which the penalties are enhanced for prior convictions. We would question this view inasmuch as the commission of subsequent offenses results not only in enhanced penalties but in the character of the offense which changes from a Class B misdemeanor for the first offense to a Class D felony for third and subsequent offenses. Plainly a felony which is an indictable offense is of quite a different character from a misdemeanor. Nevertheless we believe the appellant was properly charged.
 
Toppass v. Commonwealth of Kentucky, 799 S.W.2d 587 (Ky.App. 09/28/1990) 
Because Toppass previously pled guilty to the felony offense of Operating on a Suspended License and the only such offense is KRS 189A.090(3), he has judicially admitted the underlying requisites. Consequently, we believe as to this appellant that the circuit court unquestionably had jurisdiction to try him as this was a subsequent offense under KRS 189A.090(c) and therefore affirm on this issue
 
KRS 189A.100 Administration of preliminary breath tests — Visual recording of vehicle pursuits, traffic stops, and field sobriety tests — Conditions of recording — Use and destruction of recordings.
(1) Law enforcement agencies may administer preliminary breath tests using devices or equipment which will ensure an accurate determination of blood alcohol content. Such tests may be administered in the field to a person suspected of violation of KRS 189A.010 before the person is arrested. This test may be administered in addition to any other blood alcohol level test authorized by law. A person’s refusal to take a preliminary breath test shall not be used against him in a court of law or in any administrative proceeding.
(2) Law enforcement agencies may record on film or videotape or by other visual and audible means the pursuit of a violator or suspected violator, the traffic stop, or field sobriety tests administered at the scene of an arrest for violation of KRS 189A.010 or such tests at a police station, jail, or other suitable facility subject to the following conditions:
(a) The testing is recorded in its entirety (except for blood alcohol analysis testing); and
(b) The entire recording of the field sobriety tests and the entire recording of such portions of the pursuit and traffic stop as were recorded is shown in court unless the defendant waives the showing of any portions not offered by the prosecution; and
(c) The entire recording is available to be shown by the defense at trial if the defendant so desires regardless of whether it was introduced by the Commonwealth; and
(d) The defendant or his counsel is afforded an opportunity to view the entire recording a reasonable time before the trial in order to prepare an adequate defense; and
(e) Recordings shall be used for official purposes only, which shall include:
1. Viewing in court;
2. Viewing by the prosecution and defense in preparation for a trial; and
3. Viewing for purposes of administrative reviews and official administrative proceedings. Recordings shall otherwise be considered as confidential records; and
(f) The videotape or film taken in accordance with this section shall, upon order of the District Court, be destroyed after the later of the following:
1. Fourteen (14) months, if there is no appeal of any criminal or traffic case filed as a result of the videotape or film, or if the videotape or film does not record the actual happening of an accident involving a motor vehicle;
2. Fourteen (14) months after a decision has been made not to prosecute any case upon which an arrest has been made or a citation issued as a result of the videotape or film, if the videotape does not record the actual happening of an accident involving a motor vehicle;
3. Twenty-six (26) months, if there is no appeal of any criminal or traffic case filed as a result of the videotape or film, if the videotape or film records the actual happening of an accident involving a motor vehicle;
4. After all appeals have been exhausted arising from any criminal or traffic case filed as a result of the videotape;
5. At the conclusion of any civil case arising from events depicted on the videotape or film; or
6. At the conclusion of the exhaustion of all appeals arising from any law enforcement agency administrative proceedings arising from events depicted on the videotape or film; and
(g) Public officials or employees utilizing or showing recordings other than as permitted in this chapter or permitting others to do so shall be guilty of official misconduct in the first degree.
(3) When a peace officer makes a videotape or film recording of any transaction covered by subsection (2) of this section and a citation is issued or an arrest is made, the peace officer shall note on the uniform citation that a videotape has been made of the transaction.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 24, effective October 1, 2000. — Created 1984 Ky. Acts ch. 165, sec. 10, effective July 13, 1984. 
 
Annotations:
 
Hoppenjans v. Commonwealth, No. 2008-CA-001388-DG (Ky. App. 11/25/2009) (Ky. App., 2009)
    There is no question in this case that the testimony by the arresting officer was improper. Kentucky Revised Statute ("KRS") 189A.100(1) clearly provides that "[a] person’s refusal to take a preliminary breath test shall not be used against him in a court of law or in any administrative proceeding." Similarly, KRS 189A.104(2) prohibits the introduction of any breath analysis by an instrument other than stationary machine installed, tested, and maintained by the Commonwealth for that specific purpose. The parties also agree that Hoppenjans made a timely objection to the officer’s testimony and requested a mistrial.1 The trial court denied the motion for a mistrial, but admonished the jury to disregard the testimony. Hoppenjans contends that a mistrial was necessary due to the unfairly prejudicial effect of the testimony.
        We disagree. A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky. 2005). Furthermore, a jury is presumed to follow an admonition to disregard evidence; thus, the admonition cures any error. Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999).
    We will add, however, that our holding on this matter should not be construed as an approval of the admission of this type of evidence. As Hoppenjans correctly points out, KRS 189A.100(1) and 189A.104(2) clearly prohibit the introduction of any evidence about the PBT during the guilt or sentencing phase of the trial. See also Greene v. Commonwealth, 244 S.W.3d 128 (Ky. App. 2008). These statutes have been in effect since 2000. At this point, prosecutors and police officers participating in DUI cases should be fully aware of these rules. While an admonition was sufficient to cure the error in this case, this type of error should be easily avoidable with proper preparation of witnesses. Further, in a case with more questionable proof, we would be more likely to reverse and remand with instruction to conduct a new trial.
        Accordingly, the order of the Carroll Circuit Court is affirmed.
 
Greene v. Com., 244 S.W.3d 128 (Ky. App., 2008)
 Officer Cox then administered two field sobriety tests, which Greene failed. Another officer at the scene, Officer Fegett, then administered the Preliminary Breath Test (PBT), as permitted by KRS 189A.100(1), which indicated the presence of alcohol. At that point, Greene was placed under arrest for DUI and driving on a suspended license. At the Hardin County Detention Center, Officer Cox administered a standard breath test on the Intoxilyzer 5000 EN. The machine measured Greene’s blood-alcohol level at .096%.
In the absence of any evidence that the loss of or failure to collect evidence was intentional, no due process interests are implicated. Id. Further, KRS 189A.100(2) provides, "Law enforcement agencies may record … the traffic stop, or field sobriety tests…." (Emphasis added). Thus, the recording is not mandatory. Therefore, Greene was not entitled to a missing evidence instruction.
 
KY Commonwealth v. Minix, No. 1997-CA-001432-DG (Ky.App. 09/11/1998)
 The Kentucky Court of Appeals has held that the results of preliminary breath tests are admissible and acceptable in court. Allen v. Commonwealth, Ky. App., 817 S.W.2d 458 (1991). KRS 189A.100 also authorizes the use of the preliminary breath test. KRS 189A.100 Section (1) provides:
 "Law enforcement agencies may administer preliminary breath tests using devices or equipment which will ensure an accurate determination of blood alcohol content. Such tests may be administered in the field to a person suspected of violation of KRS 189A.010 before the person is arrested."
 
NOTE: The Allen Case is often cited for admission of the PBT, but Allen was decided before adoption of current law. There is still a requirement that the Commonwealth must lay a proper foundation for operation of the PBT before its admission…and they seldom know how to do this. Remember the PBT is usually granted prior to the arrest, and it has different statutory grounds than does the regular Breathalyzer which can be administered only after an arrest.
 
NOTE: Allen was decided prior to adoption of KRS 189A.103

KY [U] Marston v. Commonwealth, No. 2003-CA-001530-DG (Ky.App. 11/05/2004)
Marston does not allege, nor can he, that the testing was not recorded in its entirety, but rather that he was not visible throughout the entirety of the testing. We cannot agree with his assertions that the imprecise camera angle was intentional on the part of the officer. And, while he might object to the officer’s "running commentary," he offers no evidence to counter its accuracy. The trial court carefully considered Marston’s motion but ruled that the tape was admissible. The Franklin Circuit Court found no error, and neither do we.
 
KY Allen v. Commonwealth of Kentucky, 817 S.W.2d 458 (Ky.App. 10/25/1991)
As to the particular machine used on appellant, again, we find, based upon the evidence that it was in proper working order. In the first place, the Alco Sensor III has certain built-in safeguards for malfunction, but in the event something is out of order, it will show a lower alcohol reading which is to a suspect’s advantage. When used on Allen, it at first showed a .00 reading which meant the previous test had been purged and that it was ready to work properly. The particular machine had been used five to six times on the evening in question and had not had a positive reading until used on appellant. The operator further related that he calibrated the device as suggested by his instructors and that he had received the requisite training in its use. For that matter, the administering officer, Wayne Crumpton, testified that he had used the machine "on thousands of occasions" before testing Allen. Nothing indicates to us that anything was amiss with the Alco Sensor III used on appellant nor that the operator was not fully trained.
 
NOTE: Allen was decided prior to adoption of KRS 189A.103 
SEE:Williams v. Commonwealth, No. 2002-CA-000541-MR (Ky.App. 03/21/2003)
 
 
KRS 189A.103 Consent to tests for alcohol concentration or substance which may impair driving ability — Test procedures — Who may administer – Personal testing.
The following provisions shall apply to any person who operates or is in physical control of a motor vehicle or a vehicle that is not a motor vehicle in this Commonwealth:
(1) He or she has given his or her consent to one (1) or more tests of his or her blood, breath, and urine, or combination thereof, for the purpose of determining alcohol concentration or presence of a substance which may impair one’s driving ability, if an officer has reasonable grounds to believe that a violation of KRS 189A.010(1) or 189.520(1) has occurred;
(2) Any person who is dead, unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn the consent provided in subsection (1) of this section, and the test may be given;
(3) The breath, blood, and urine tests administered pursuant to this section shall be administered at the direction of a peace officer having reasonable grounds to believe the person has committed a violation of KRS 189A.010(1) or 189.520(1).
(a) Tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet, and shall have been performed, as to breath tests, only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes.
(b) All breath tests shall be administered by a peace officer holding a certificate as an operator of a breath analysis instrument, issued by the secretary of the Justice and Public Safety Cabinet or his or her designee;
(4) A breath test shall consist of a test which is performed in accordance with the manufacturer’s instructions for the use of the instrument. The secretary of the Justice and Public Safety Cabinet shall keep available for public inspection copies of these manufacturer’s instructions for all models of breath testing devices in use by the Commonwealth of Kentucky;
(5) When the preliminary breath test, breath test, or other evidence gives the peace officer reasonable grounds to believe there is impairment by a substance which is not subject to testing by a breath test, then blood or urine tests, or both, may be required in addition to a breath test, or in lieu of a breath test;
(6) Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section; and
(7) After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his or her own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time. Provided, however, the non availability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 214, effective June 26, 2007. — Amended 2000 Ky. Acts ch. 467, sec. 8, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 6, effective July 1, 1991.
 
ANNOTATIONS:
 
[U] Duncan v. Commonwealth (Ky. App., 2013) April 19, 2013 2011-CA-000636-DG
On July 10, 2010, Duncan pled guilty to DUI, Second Offense, reserving the right to appeal the issue of whether the officer’s actions requiring him to submit to a blood test were in error. Duncan then filed an appeal with the Webster Circuit Court which held that, pursuant to the ruling in Beach vs. Commonwealth, 927 S.W. 2d 826 (Ky. 1996), an arresting officer has the option as to which test may be given in a DUI case. It concluded that the Supreme Court of Kentucky had already decided the issue raised by Duncan and that the arresting officer is the one who chooses which test to administer under KRS 189A.103(1).
The Webster Circuit Court councluded that Duncan’s other constitutional issues were without merit. Specifically, it found that the United States Supreme Court has held that a blood test does not violate the Federal Due Process Clause, the Fifth Amendment, the Sixth Amendment or the Fourth Amendment. Schmerber vs. California, 384 U.S. 757, 86 S.Ct. 1826, 162 L.Ed.2d 908 (1956). Thus, the Circuit Court affirmed the decision of the Webster District Court. Duncan then brought this appeal.
As set forth above, the trial court relied on the holding in Beach, supra, in making its decision. In Beach, the officer arrived at the scene of a single vehicle accident and found Beach nearby. Beach told the officer she had been driving the car and smelled strongly of alcohol. The officer administered a PBT and several field sobriety tests before taking Beach to a local hospital for a blood test. Beach consented to the blood test. The officer testified that the breathalyzer at the local police station was not working. Beach objected to the results of the blood test being administered at trial, but the district court ruled in the Commonwealth’s favor. Her appeal was heard by the Kentucky Supreme Court which held as follows:
It is the holding of this Court that KRS 189A.103(1) and (5) do not require that a police officer must first offer a DUI suspect a breath test before asking him or her to submit to a blood text. The provisions of KRS 189A.103 provide that an individual driving on the highways of Kentucky has given implied consent to the performance of a blood, breath and/or urine tests in the event the individual is suspected of driving a vehicle under the influence. Beach at 828.
While the facts in this case are different, we are bound by the decision in Beach. Here, the officer testified that it was the policy of his department at the time for the officer to choose which test to administer. That policy was based on Kentucky’s implied consent law and the Beach decision. Duncan agreed to a breathalyzer, but the officer asked for a blood test.
 In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (U.S.Cal. 1966), the United States Supreme Court held that the taking of blood from a person is considered a search and is, consequently, subject to Fourth Amendment and state constitutional limitations. See Farmer v. Commonwealth, 169 S.W.3d 50 (Ky. App. 2005). The implied consent statute is constitutional and the search is allowed under the Fourth Amendment.
 Based upon our conclusion, we affirm the decision of the Webster Circuit Court affirming the decision of the Webster District Court
 
 
Carroll v. Commonwealth (Ky. App., 2013) JANUARY 11, 2013
Ms. Carroll was ….. Charged with DUI. A motion to suppress the evidence was filed on June 16, 2010. The motion was premised on the argument that Chief Caldwell did not have sufficient grounds to charge Ms. Carroll with DUI. It was also alleged that Chief Caldwell did not properly observe Ms. Carroll for twenty minutes prior to administering a breath test in accordance with Kentucky Revised Statutes (KRS) 189A.103 and that Chief Caldwell did not properly advise Ms. Carroll of her rights pursuant to the implied consent warnings contained in KRS 189A.105.
Ms. Carroll also argues that Chief Caldwell did not properly observe her for the required twenty minutes prior to administering the breathalyzer test; therefore, the breathalyzer evidence should have been suppressed. KRS 189A.103(3)(a) states that the officer administering the breath test can only do so after having observed the person for twenty minutes. Ms. Carroll claims that Chief Caldwell left her alone in the adjoining room while he prepped the Intoxylizer. This would mean that he did not observe her for the required twenty minutes.
We find no error here. …..The only witness to testify at the suppression hearing was Chief Caldwell. He testified unequivocally that he had Ms. Carroll under his personal observation for the full twenty-minute period…. This testimony was undisputed.
Ms. Carroll is seeking the suppression of all three tests. The first test results were clearly admissible as evidence because Chief Caldwell gave the implied consent warnings found in KRS189A.103. The admissibility of the second breath test and blood test was held to be a moot issue by the court below and thus there is nothing for this court to consider. …
CAPERTON, JUDGE, CONCURRING: I concur with the majority but write separately only to express my opinion that: (1) the officer’s characterization of the admissibility or inadmissibility of the blood test is not determinative of its admissibility as evidence; and (2) it is questionable whether the officer can instruct health personnel to perform a particular medical test.
Certainly, an officer can transport an arrestee to a hospital or health facility for an evaluation as to the condition of the arrestee and for a determination of whether such person is suitable for lodging in a detention center. However, the decision to conduct a particular medical test is a decision for the health professional.
 
Miller v. Commonwealth (Ky. App., 2012) OCTOBER 5, 2012
The appellants moved the district court to suppress the results of their Breathalyzer tests, arguing that the officers failed to perform the tests in accordance with standard operating procedures. Their motions were denied. They subsequently entered guilty pleas conditioned on the right to appeal the denial of the suppression motions. The circuit court affirmed the district court’s rulings in both cases. Miller and Shirley filed motions for discretionary review which were granted by this Court, and on June 6, 2011, the appeals were ordered to be heard together.
The applicable statute, KRS 189A.103 (3) (a), provides that Tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet, and shall have been performed, as to breath tests, only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes.
No argument has been made that the officers’ actions in commencing the final test preparations before the full observation period had elapsed in any way interfered with their observation of the appellants. We agree with the appellee that the instructions are intended to provide a reminder to the operator that the individual being tested must be under personal observation for the statutorily-mandated period prior to administering the test. The pertinent statute and regulation as cited above expressly require the observation period; they do not require strict and undeviating compliance with the operating procedures if it can be shown, as it was in this case, that the accuracy and reliability of the test results was not compromised.
The orders of the Carroll Circuit Court are affirmed.
 
Helton v. Commonwealth, No. 2008-SC-000141-MR (Ky. 1/21/2010) (Ky., 2010)
 Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol. The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident. She claims that this practice violates KRS 189A.105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A.103. She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects in general are unconstitutional.
        More importantly, the fact that Appellant was unconscious at the time did not nullify her statutory implied consent. KRS 189A.103 focuses on whether the suspect affirmatively withdraws consent by refusing to submit to testing. The statute specifically addresses the continuing consent of one who is unconscious, effectively nullifying the right to refuse the test in cases of incapacity to refuse. This is a public policy judgment call that is solely within the province of the legislature, provided no constitutional rights are violated.
        This statutory aspect of Appellant’s argument, therefore, is fairly simple to resolve. Appellant consented to testing by operating a vehicle in Kentucky. She did not thereafter refuse to submit to testing and therefore did not withdraw her consent. Because Appellant "consented," the officer did not violate KRS 189A.105(2)(b) in failing to get a warrant to withdraw and test her blood, but this statutory implied consent provision cannot trump a constitutional prohibition on unreasonable searches because of the Supremacy Clause.
 
Cowles v. Commonwealth, No. 2008-CA-001794-MR (Ky. App. 2/5/2010) (Ky. App., 2010)
   KRS 189A.103 addresses the procedures for taking breath, blood, or urine samples for purposes of KRS Chapter 189A. KRS 189A.103(6) provides: "Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section[.]" KRS 189A.103(3)(a) further provides: "Tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice and Public Safety Cabinet[.]" 500 KAR2 8:030 § 2(3)(a) in turn specifies, for purposes of such tests: "Ethyl alcohol (ethanol) shall not be used to clean the skin where a blood sample is to be collected."
. . . While a proper foundation may not have been laid, and the Commonwealth may have been remiss in failing to prove that a registered nurse drew the blood, the record contains sufficient admissible evidence to sustain the conviction.
      Even if the evidence was erroneously admitted, it was harmless error . . . given the other evidence of [the defendant’s] impairment due to alcohol that was introduced.
. We find Cowles’ insinuation that the results of the test were inaccurate or contaminated insufficient to rebut this presumption, and further decline to address his hearsay argument since no authority was provided, pursuant to CR3 76.12, in support of this claim.
        Furthermore, "a DUI conviction could be sustained without evidence procured by use of a device for measuring intoxication." Commonwealth v. Wirth, 936 S.W.2d 78, 81 (Ky. 1996); see also Commonwealth v. Hicks, 869 S.W.2d 35, 37 (Ky. 1994) (holding that a DUI conviction may be sustained upon the testimony of the police, without resort to various devices); Allen v. Commonwealth, 817 S.W.2d 458, 461 (Ky.App. 1991) (holding that a conviction may be sustained without evidence procured by use of a device for measuring intoxication). Here, the evidence, even in the absence of the B.A. test results, was sufficient to sustain Cowles’ conviction. We thus affirm the court’s judgment with respect to Cowles’ first assignment of error.
 
Helton v. Commonwealth, No. 2008-SC-000141-MR (Ky. 8/27/2009) (Ky., 2009)
     Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol. The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident. She claims that this practice violates KRS 189A.105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A.103. She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects in general are unconstitutional.
    More importantly, the fact that Appellant was unconscious at the time did not nullify her statutory implied consent. KRS 189A.103 focuses on whether the suspect affirmatively withdraws consent by refusing to submit to testing. The statute specifically addresses the continuing consent of one who is unconscious, effectively nullifying the right to refuse the test in cases of incapacity to refuse. This is a public policy judgment call that is solely within the province of the legislature, provided no constitutional rights are violated.
        This statutory aspect of Appellant’s argument, therefore, is fairly simple to resolve. Appellant consented to testing by operating a vehicle in Kentucky. She did not thereafter refuse to submit to testing and therefore did not withdraw her consent. Because Appellant "consented," the officer did not violate KRS 189A.105(2)(b) in failing to get a warrant to withdraw and test her blood, but this statutory implied consent provision cannot trump a constitutional prohibition on unreasonable searches because of the Supremacy Clause.
 When the officer does have reasonable grounds, the test may be done on a person, even if she is unconscious, without violating the Fourth Amendment. If, as in Schmerber, the state can require a conscious person, who has actually refused, to submit to the blood test due to exigent circumstances and the existence of probable cause, then it makes no difference what a person’s state of consciousness is. But this step is not reached at all unless the officer had probable cause to search in the first place.
        Consequently, this Court’s review of the blood test search in this case turns on whether the officer had probable cause to believe that Appellant had violated the DUI statutes when he requested the blood test. Unfortunately, that is not in the record, meaning that the trial court did not engage in the whole analysis necessary to decide Appellant’s suppression motion.
Conclusion
        The judgment is hereby vacated and this case is remanded for a new suppression hearing to determine whether the evidence establishes that the police had reasonable grounds to believe alcohol was involved in the accident.
 
Roberts v. Commonwealth, No. 2008-CA-001465-MR (Ky. App. 8/7/2009) (Ky. App., 2009)
  The language "`has given his consent’ makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration." Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914, 915 (Ky. 2002). Further, unconsciousness does not invalidate implied consent. KRS 189A.103(2). In light of the statutorily implied consent, the Commonwealth herein did not have to prove that Appellant voluntarily consented to the blood test. Clearly, there is no evidence of a "positive refusal" by Appellant to the test. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky. 2004).
        Accordingly, we conclude that neither Appellant’s statutory or constitutional rights were violated. As a driver on the roads of Kentucky, Appellant is bound by the implied consent laws. As such, he is deemed to have consented to the blood test and the trial court properly admitted the toxicology report.
        The judgment and sentence of the Jefferson Circuit Court are affirmed.
 
Litteral v. Commonwealth, No. 2007-CA-001982-DG (Ky. App. 12/5/2008) (Ky. App., 2008)
 By statute, the privilege of driving a vehicle in Kentucky carries with it the implied consent of every driver to testing for alcohol concentration which may impair driving ability. KRS 189A.103(1).
We believe the Legislature was mindful of the requirement, which it previously incorporated into the legislation, that breathalyzer testing be permitted "only after a peace officer has had the person under personal observation at the location of the test for a minimum of twenty (20) minutes." KRS 189A.103(3)(a). The purpose of this observation period is to assure that the test "subject shall not have oral or nasal intake of substances which will affect the test." 500 KAR 8:030 Section 1(1). Considering that our Courts previously held the test subject was entitled to no contact with legal counsel, we believe the Legislature intended only to allow such right as would not infringe upon the Commonwealth’s need to obtain accurate evidence regarding a violation of KRS 189A.010.
 
Veltrop v. Com., 269 S.W.3d 15 (Ky. App., 2008)
2) With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person’s [269 S.W.3d 17] blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (e) of this section. The results of the test or tests, however, may be admissible in a prosecution under subsection (1)(b) or (d) of this section.
 
Centers v. Commonwealth, No. 2005-CA-002139-MR (Ky. App. 1/11/2008) (Ky. App., 2008)
  The officer located a duffel bag behind the passenger seat containing a handgun, syringes and spoons used to ingest drugs and a white powdery substance. He found additional narcotics in the console. He then escorted Centers to the regional medical center and read him the implied consent form. See Kentucky Revised Statutes (KRS) 189A.103. Centers contacted an attorney and refused to submit to any blood or urine tests.
        Centers’ arguments for suppressing the evidence rests on two primary facts. He first claims that the duffel bag and its contents were not in close proximity to him and therefore the search of that area was illegal. In the alternative, he also suggests that because the written incident report shows the handgun was found at 7:26 p.m., but the arrest is listed at 7:36 p.m., the search was not incident to arrest and was therefore improper. Both arguments are without merit.
 
LawReader Comment:
    The Supreme Court in Arizona v. Gant –556 U.S. ___ issued in May of 2009, The court limited the application of Belton and restricted warrantless searches of a defendants automobile when the defendant was in police custody.
      For many years, the Supreme Court has permitted police to search the passenger compartment of a vehicle any time an occupant of the car is arrested. These so-called “searches incident to arrest” were authorized in New York v. Belton (1981) based in large part on concerns about officer safety, namely that the suspect might dive for a weapon hidden in the car. As a result, police have grown accustomed to searching vehicles for “safety reasons” even after the suspect has been taken into custody.
        Arizona v. Gant, 556 U.S. ___ (2009), held that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence related to the crime of arrest from tampering by the arrestee, in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured.
      This decision overrules a number of Ky. cases which strictly applied Belton, to allow such searches.
 
Greene v. Com., 244 S.W.3d 128 (Ky. App., 2008)
Finally, Greene asserts that the results of the Intoxilyzer test should have been suppressed because the officer failed to observe him for twenty minutes before administering the test, as required by KRS 189A.103.
  We do agree however that it is imperative the arresting officer demonstrate proficiency in utilizing the PBT as well as evidence the PBT be in proper working order. Even if we should find the Commonwealth failed to show one or both of these, we conclude that the Commonwealth presented sufficient evidence supporting a finding of probable cause even without the results of the PBT. Finally, neither the pass/fail result, nor the numerical result of the PET, was presented to the jury. Consequently, any error in the judge considering the PBT results would be harmless.
This brings us to the central issue presented in this appeal: the admissibility of the Intoxilyzer test results. As Greene correctly notes, KRS 189A.103(3) requires that a police officer personally observe the individual for twenty minutes before administering the test. The purpose of the twenty-minute observation time is to insure the subject does not place anything in his mouth or nose which might affect the accuracy of the test and insure residual alcohol in the mouth has dissipated. Eldridge v. Com. 68 S.W.3d 388 2001. In this case, however, Officer Cox’s documentation regarding the observation period is inconsistent. The parties agree that Greene was arrested at 9:57 p.m. At 10:08 p.m., Officer Cox arrived at the detention center with Greene. The paperwork indicates that Officer Cox began the twenty-minute observation period of Greene at 11:11 p.m., but the Intoxilyzer ticket states that the test was performed at 10:41 p.m. Officer Cox explained that the first time was an error, and that the observation period actually began at 10:11 p.m. But Officer Cox’s records also state that he cleared the scene and completed the call at 10:29 p.m., and the records from the Hardin County Detention Center show that Greene was booked into jail at 10:35 p.m., both of which would have been before the Intoxilyzer test was administered.
        Notwithstanding the inconsistencies in the documentation, the trial court accepted Officer Cox’s testimony that he observed Greene for twenty minutes prior to administering the Intoxilyzer testa The evidence could have supported a contrary conclusion. But we cannot say that the evidence would compel such a finding. The trial court is in the best position to judge the credibility of witnesses and this Court is bound by the trial cotirt’s findings of fact unless there is a clear error or abuse of discretion. Commonwealth v. Whitmore, 92 S.W.3d 76, 79 (Ky.2002). Although the documentation was not clear regarding exactly when the observation period began and ended, Officer Cox was certain that he observed Greene for the required twenty minutes. Under the circumstances, we cannot say that Officer Cox’s testimony was so improbable as to render it unworthy of credence. Therefore, the trial court did not err by denying the motion to suppress the Intoxilyzer results.
        Furthermore, there was evidence that the Intoxilyzer test was administered to Greene within two hours after he was operating a motor vehicle, See KRS 189A.010(1)(e).citation omitted. There was also other evidence that the Intoxilyzer machine was properly calibrated and that the test was properly administered. Given this evidence and the Intoxilyzer test results, the trial court properly denied Greene’s motion for a directed verdict of acquittal.
 
NOTE: The Supreme Court denied discretionary review of Billingsley v. Com., and ordered the decision by the Court of Appeals depublished.
   The de-publishing of Billingsley v. Com. leaves unsettled whether an interlocutory "appeal" can be obtained by the ruse of filing an "original action" in the Circuit Court in which the trial judge who made the suppression ruling is named as a defendent, and then permitting a writ of mandamus to be issued against the trial judge. That procedure would effect a work around to the prohibition against interlocutory appeals from District Court.
     The issue of "standard operating procedures" likewise is left in limbo by the order de-publishing Billingsley v. Com. We suggest that the decision of the Sup. Ct. in Roberts is the prevailing statement of the law. See:  Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 12/18/2003
 
KY [U] Culver v. Commonwealth, No. 2003-CA-000632-DG (Ky.App. 06/11/2004)
 The statute, KRS 189A.103, and regulation, 500 KAR 8:030 § 1, are neither ambiguous nor extremely harsh. All that is required is twenty minutes of observation prior to analysis of the subject’s breath.
 
 
KY Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 03/18/2004)
  But see Beach v. Commonwealth, Ky., 927 S.W.2d 826, 828 (1996) ("[E]vidence should not be excluded for the violation of provisions of a statute where no constitutional rightis involved.") (interpreting KRS 189A.103(5)). C.f. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967) (taking of handwriting exemplars not critical stage of criminal proceedings entitling defendant to assistance of counsel).
KY Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 12/18/2003)
We must observe that the "additional requirements" stated in Wirth are not in fact additions, but are modifications of the already existing standards set out in Marcum, supra, and Owens, supra. KRS 189A.103(3)(a) changes the standard in Marcum and Owens concerning the fifteen minute time frame and now specifies that a peace officer personally observe the subject for twenty minutes. See also 500 KAR 8:020(1). KRS 189A.103(4) effectuates no change. It requires the test to be performed in accordance with the manufacturer’s instructions. The language in Marcum and Owens states that the test should be administered according to standard operating procedures. We find this to be a distinction without a difference. 500 KAR 8:020(2) only specifies the standards involved in properly checking the machine. Finally, 500 KAR 8:030(2) modifies the requirement that the operator state that the "chemicals were of the correct kind and compounded in the proper portions" and now sets forth the steps and sequence to be followed when giving the test.
 
NOTE: This case would appear to be the controlling case re: many DUI issues.
The Court of Appeals attempted to effect a revocation of substantial elements of this Sup. Ct.  Ruling by its decisions in Billingsley v. Commonwealth, No. 2002-CA-001879-MR (Ky.App. 06/04/2004) .
Subsequently the Supreme Court denied discretionary review of Billingsley v. Com., and ordered the decision by the Court of Appeals depublished.
The de-publishing of Billingsley v. Com. leaves unsettled whether an interlocutory "appeal" can be obtained by the ruse of filing an "original action" in the Circuit Court in which the trial judge who made the suppression ruling is named as a defendant, and then permitting a writ of mandamus to be issued against the trial judge.  That procedure would effect a work around to the prohibition against interlocutory appeals from District Court.
Roberts affects WIRTH and a number of earlier cases. You must read Roberts to have an understanding of the state of the law on many DUI issues.
 
 
KY  Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 07/25/2003)
 As the proper interpretation of KRS 189A.103 is purely a legal issue, our review is de novo. Floyd County Board of Education v. Ratliff, Ky., 955 S.W.2d 921, 925 (1997); Keeton v. City of Ashland, Ky. App., 883 S.W.2d 894, 896 (1994). On review, it is our duty to construe the statute "so as to effectuate the plain meaning and unambiguous intent expressed in the law." Bob Hook Chevrolet Isuzu v. Transportation Cabinet, Ky., 983 S.W.2d 488, 492 (1998). Moreover, we understand that the judiciary is "not at liberty to add or subtract from the legislative enactment . . ." or to attempt to cure any omissions. Commonwealth v. Harrelson, Ky., 14 S.W.3d 541, 546 (2000); Commonwealth v. Taylor, Ky., 945 S.W.2d 420 (1997).
   Long entered a conditional guilty plea to the offense of driving under the influence, the elements of which are defined in KRS 189A.010(1)(a)(b). Specifically, under the statute, "[a] person shall not operate or be in physical control of a motor vehicle anywhere in this state . . . [h]aving 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 . . . [w]hile under the influence of alcohol[.]"
   Under our statutory scheme however, an individual arrested for driving under the influence who has submitted to the initial test administered by the state is allowed an independent test "to obtain another result to compare with or controvert the police officer’s test." Commonwealth v. Minix, Ky., 3 S.W.3d 721, 724 (1999); see KRS 189A.103(7). KRS 189A.103(7)
 
KY [U] McPeak v. Commonwealth, No. 2002-CA-001214-MR (Ky.App. 05/02/2003) 
Under the Implied Consent Statute, KRS 189A.103, a vehicle operator in this State "consent[s] to one (1) or more tests of his blood, breath, and urine . . . if an officer has reasonable grounds to believe that a [DUI] violation has occurred." The vehicle operator does not, however, consent to pay for the test. The statute does not purport to require payment for police initiated tests, and of course courts must refrain from reading into statutes any but the most necessary implications. It is doubtful, moreover, that the state could lawfully require a DUI suspect to be financially responsible for the police-initiated tests. One suspected of a crime enjoys our law’s presumption of innocence. It is the Commonwealth’s burden to marshal evidence of guilt by its own efforts and at its own expense. To be sure, those convicted of crimes may be required to repay some of what they have cost the Commonwealth, but before conviction the burden of proof is in no sense to be shifted to the accused. McPeak was thus under no obligation to agree to pay for the Commonwealth’s investigation, and his refusal to do so should not have been equated with a refusal to submit to a blood test.
 
KY [U] Bautista v. Commonwealth, No. 2001-CA-001983-DG (Ky.App. 04/04/2003) (Warning in 189a.103)
Bautista urges this court to consider the issue of whether his motion to suppress the blood alcohol test results was improperly denied because he was not advised in Spanish of his right to an independent test. However, we agree with the trial court and the circuit court that this issue need not be reached as Bautista failed to produce any evidence that he did not understand his rights as read to him in English. At the suppression hearing Officer Sword testified that he informed Bautista of his rights and appellant appeared to understand them before signing the implied consent form. Bautista offered nothing to counter this evidence, and the trial court’s finding that Bautista understood his rights is substantially supported and thus conclusive. RCr 9.78.
 
 
KY Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914 (Ky. 02/21/2002) 
Pursuant to the 2000 legislative amendments, KRS 189A.103(1) provides that every person who operates or is in physical control of a vehicle in the Commonwealth "has given his consent to one (1) or more tests of his blood, breath, urine, or combination thereof, for the purpose of determining alcohol concentration if an officer his reasonable grounds to believe that a violation of KRS 189A.010(1) or KRS 189.520(l) has occurred." (emphasis added). Prior to the amendments, the statute merely stated that a person was "deemed to have given his consent." The 2000 amendment of the statute to read "has given his consent" makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.
In addition, we wish to correct what appears to be a widespread misinterpretation of the statute. By virtue of KRS 189A.103, one who operates a motor vehicle consents to a test of his blood, breath or urine for t.he purpose of determining alcohol concentration. The phrase "no person shall be compelled" in KRS 189A. 105 could not rationally have been intended to contradict the consent provisions of KRS 189A. 103. A more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing.
  The implied consent warning in KRS 189A.105 is defective as applied to those suspected drunk drivers not necessarily subject to minimum jail time; however, this defect does not rise to a violation of a constitutional right. Although the officer did not correctly educate Respondent in this case on the consequences of refusal, the warning neither offered implicit assurances that Respondent would not be subject to jail if he consented to the test, nor guaranteed jail time if he refused. It merely informed him of the possibility of additional jail time should such be mandated for the underlying DUI offense. Furthermore, as consent is implied by law, one cannot claim coercion in consenting to a test. While the statutory warning may be inaccurate in some circumstances, the duty to submit to testing is foremost under the statutory scheme. Thus, the implied consent warning contained in KRS 189A.105 is not so defective as to prejudice, as a matter of law, a suspected drunk driver’s decision-making process since there is no constitutional right to refuse to submit to a test to determine blood alcohol concentration.
 
KY Commonwealth v. Morriss, No. 2000-SC-000556-DG (Ky. 03/21/2002)
In Commonwealth v. Lopez, the defendant was charged with DUI and consented to a blood test. There was no death or physical injury nor was there a search warrant. This Court clarified the broad holding in Combs, i.e., "it is the holding of this Court that the admission of the results of a blood test in a DUI case not involving death or physical injury is improper" and held that "Combs is limited to those situations where a search warrant was necessary to obtain blood evidence in order to prosecute a DUI case not involving injury or death."
     We explained that "the above quoted language [from Combs] does not control a situation where a defendant expressly consents to a blood alcohol test in compliance with KRS 189A.103."
 
KY Love v. Commonwealth, 55 S.W.3d 816 (Ky. 02/22/2001)
We also note that urine tests are contemplated by KRS 189A.103(1), (3), and (5).
 
 
 
KY Matthews v. Commonwealth, 44 S.W.3d 361 (Ky. 02/22/2001) 
Only when the Commonwealth moved to introduce the report into evidence did Appellant object to the Commonwealth’s lack of a proper foundation for the reading, namely the credentials of the nurse who drew the blood. KRS 189A.103(6) authorizes blood to be drawn by a physician, registered nurse, phlebotomist, medical technician or medical technologist. The trial court took great pains to assure itself that the blood alcohol tests were conducted properly and that the results were admissible. After concluding that the procedures followed were sufficient to ensure substantial compliance with the law and that the sample wasn’t contaminated, the trial court overruled Appellant’s objection.
 
KY Commonwealth v. Lopez, No. 1999-sc-000215-cl (Ky. 10/21/1999)
 It is the holding of this Court that the admission of the results of a blood test in a DUI case not involving death or physical injury is improper. does not reflect the true intent of the total Opinion. Consequently, the above quoted language does not control a situation where a defendant expressly consents to a blood alcohol test in compliance with KRS 189A.103.The language in Combs is incomplete and therefore must be clarified. The holding in Combs relates to those cases prosecuted pursuant to KRS 189A.105 where blood alcohol evidence is obtained pursuant to a search warrant in a DUI case not involving physical injury or death.
KY Combs v. Commonwealth of Kentucky, 965 S.W.2d 161 (Ky. 03/19/1998) 
The issue is whether police may use a search warrant in order to take a suspected drunk driver’s blood after the driver has refused to submit to a blood alcohol test pursuant to the Implied Consent Statute, KRS 189A.103 and 189A.105(2)(b), in a case not involving death or physical injury. The plain language of KRS 189A.103 and KRS 189A.105 prohibits compelled body searches of a DUI suspect following a refusal to take a blood test, unless death or physical injury are involved.
 
KY Commonwealth v. Minix, 3 S.W.3d 721 (Ky. 09/23/1999)
 KRS 189A.103 is based on the public policy that an individual driving on the highways of Kentucky has given implied consent to the performance of breath, blood, and/or urine tests in the event that the individual is suspected of driving a vehicle under the influence. See Beach v. Commonwealth, Ky., 927 S.W.2d 826 (1996).
 
KY  Commonwealth of Kentucky v. Wirth, 936 S.W.2d 78 (Ky. 09/26/1996)
    In addition, we wish to correct what appears to be a widespread misinterpretation of the statute. By virtue of KRS 189A.103, one who operates a motor vehicle consents to a test of his blood, breath or urine for the purpose of determining alcohol concentration. The phrase "no person shall be compelled" in KRS 189A.105 could not rationally have been intended to contradict the consent provisions of KRS 189A.103. A more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing.
      The courts of this Commonwealth have not heretofore extended the constitutional right to counsel to the pre-chemical test stage of the proceeding and we decline to do so now. Newman v. Stinson, Ky., 489 S.W.2d 826 (1972); Commonwealth, Transportation Cabinet v. Cornell, Ky. App., 796 S.W.2d 591 (1990).
 
NOTE: See Commonwealth v. Roberts, 122 S.W.3d 524 (Ky. 12/18/2003) which overrules a number of issues in Wirth.
 
KY  Kimberly Beach v. Commonwealth of Kentucky, 927 S.W.2d 826 (Ky. 06/20/1996)
 The purpose of Chapters 189 and 189A is to prevent persons from operating vehicles in Kentucky when they are under the influence of a substance which may impair their driving ability and to punish those individuals found to be driving under such influence. The intended purpose of the implied consent section set out in KRS 189A.103 is clearly enunciated in Subsection 1. In order to determine whether an individual is driving a vehicle under the influence, the legislature provided that a person is deemed to consent to one or more or any combination of blood, breath or urine tests. The language of the statute provides that a police officer may require an individual to submit to such tests in the absence of a provision to the contrary. The argument that Subsection 5 limits the police in their ability to administer blood or urine tests is without merit. There is no priority expressed in the statute and no preferred method for determining blood alcohol content.

 

 
KRS 189A.104 Alcohol or substance testing subject to refusal or enhancement of penalties under KRS Chapter 189A.
(1) The only alcohol or substance testing that is subject to refusal or enhancement of penalties provided for in this chapter is:
(a) Breath analysis testing by a machine installed, tested, and maintained by the Commonwealth for that specific purpose at a police station or detention facility;
(b) Blood or urine testing at the request of the officer at a police station, detention facility, or medical facility; or
(c) Combination of tests required in paragraphs (a) or (b) of this subsection.
(2) The results of any breath analysis by an instrument other than one specified in subsection (1) of this section shall be inadmissible in court.
Effective: October 1, 2000
History: Created 2000 Ky. Acts ch. 467, sec. 30, effective October 1, 2000. 
 
Annotations:
 
Hoppenjans v. Com., 299 S.W.3d 290 (Ky. App., 2009)
    There is no question in this case that the testimony by the arresting officer was improper. Kentucky Revised Statute ("KRS") 189A.100(1) clearly provides that "[a] person’s refusal to take a preliminary breath test shall not be used against him in a court of law or in any administrative proceeding." Similarly, KRS 189A.104(2) prohibits the introduction of any breath analysis by an instrument other than stationary machine installed, tested, and maintained by the Commonwealth for that specific purpose. The parties also agree that Hoppenjans made a timely objection to the officer’s testimony and requested a mistrial The trial court denied the motion for a mistrial, but admonished the jury to disregard the testimony. Hoppenjans contends that a mistrial was necessary due to the unfairly prejudicial effect of the testimony.
We disagree. A mistrial is an extreme remedy and should be resorted to only when there appears in the record a manifest necessity for such an action or an urgent or real necessity. Bray v. Commonwealth, 177 S.W.3d 741, 752 (Ky.2005). Furthermore, a jury is presumed to follow an admonition to disregard evidence; thus, the admonition cures any error. Mills v. Commonwealth, 996 S.W.2d 473, 485 (Ky. 1999).
We will add, however, that our holding on this matter should not be construed as an approval of the admission of this type of evidence. As Hoppenjans correctly points out, KRS 189A.100(1) and 189A.104(2) clearly prohibit the introduction of any evidence about the PBT during the guilt or sentencing phase of the trial. See also Greene v. Commonwealth, 244 S.W.3d 128 (Ky.App.2008). These statutes have been in effect since 2000. At this point, prosecutors and police officers participating in DUI cases should be fully aware of these rules. While an admonition was sufficient to cure the error in this case, this type of error should be easily avoidable with proper preparation of witnesses. Further, in a case with more questionable proof, we would be more likely to reverse and remand with instruction to co
Accordingly, the order of the Carroll Circuit Court is affirmed.
 
Wilson v. Commonwealth, No. 2007-CA-001309-MR (Ky. App. 4/10/2009) (Ky. App., 2009)
Wilson argues that the trial court committed reversible error when, contrary to the prohibition contained in KRS 189A.104, it allowed the admission of certain testimony regarding his PBT. Considering this testimony in context, we disagree.
        Officer Goodin testified that when he approached Wilson’s vehicle, he smelled alcohol. His testimony continued with a description of five field sobriety tests he conducted, and then a statement that he also conducted a PBT. Wilson did not object to this statement. The officer’s testimony continued with a description of how Wilson fared on each test, including that the PBT detected "the presence of alcohol." Wilson objected to the admissibility of that statement.
        Wilson cross-examined Officer Goodin regarding the basis of his field sobriety testing techniques, referring him specifically to the Standardized Field Sobriety Testing and Reference Guide. Wilson himself noted that among the appropriate field tests is the PBT.
        Officer Goodin never testified as to the specific blood-alcohol content detected by the PBT, nor did he state whether Wilson passed or failed the PBT.
        As noted, the statute addressing the admissibility of the PBT is KRS 189A.104 which says, in pertinent part
 (1) The only alcohol or substance testing subject to refusal or enhancement of penalties provided for in this chapter is:
(a) Breath analysis testing by a machine installed, tested, and maintained by the Commonwealth for that specific purpose at a police station or detention facility; . . .
(2) The results of any breath analysis by an instrument other than one specified in subsection (1) of this section shall be inadmissible in court. KRS 189A.104.
        Greene v. Commonwealth, 244 S.W.3d 128 (Ky.App. 2008) we said that "the enactment of KRS 189A.104 does not clearly abrogate th[e] rule" of admissibility of PBT evidence established by our case law. Greene at 134, citing Commonwealth v. Rhodes, 949 S.W.2d 621 (Ky.App. 1996); …egarding the specific results was inadmissible. Id. Incorporating the case law and statute, we concluded in Greene, albeit in dicta, that "the results of a PBT are clearly inadmissible to prove guilt or for sentencing purposes[.]" Id. at 135.
        In fairness, Wilson is not seeking a ruling that would prohibit all mention of the PBT. That position is consistent with the fact that he did not object when it was first mentioned and later pointed out that the PBT was an accepted form of field sobriety testing. We interpret Wilson’s argument as embracing two independent rationales.
        First, Wilson argues that "[t]he PBT was used to bolster the credibility of the officer’s observations and the other field sobriety test results." Clearly, if the officer had testified to the specific blood-alcohol percentage shown by the PBT, the evidence would have been inadmissible because it would have been offered to prove Wilson’s guilt. If the officer had testified simply that Wilson failed the test without revealing specific results, it might be argued that the purpose was only to bolster the accuracy of the other field sobriety tests. In actuality, pass/fail testimony is no less persuasive of guilt or innocence than the specific blood-alcohol percentage results that will fall one side or the other of the legal limit.
        In this case, however, Officer Goodin testified only that the PBT detected the presence of alcohol. This bolstered his earlier testimony that he smelled alcohol; however, we do not believe that this testimony did more. Testimony that a PBT was included among the field sobriety tests given is not evidence offered to prove guilt. Similarly, testimony that the PBT detected the presence of alcohol, without testimony as to whether the amount of alcohol detected exceeded the legal limit, is not evidence offered to prove guilt. It only sheds light on the dependability of the officer’s sense of smell. At most, it is evidence that Wilson engaged in a legal activity — imbibing spirits. It is not evidence of illegal activity. This view is consistent with our previous holding in Williams v. Commonwealth, No. 2002-CA-000541-MR, 2003 WL 1403336, p.1 (March 21, 2003)("Here there was no testimony regarding Williams’s results on the PBT (the record indicates that it read 0.114%), only that it showed the presence of alcohol.").2
        Wilson’s second argument is more subtle. He argues that in the context of the combination and sequence of Officer Goodin’s testimony, the PBT was offered to prove guilt. We appreciate this argument but ultimately reject it.
        Technically speaking of course, Officer Goodin did testify to one result of the PBT — that it detected the presence of alcohol. Wilson argues that because the officer testified that he did not fail all of the field sobriety tests, combined with the fact that the arrest did not occur before administering the PBT, the jury was allowed to infer that Wilson failed the PBT. However, Wilson’s "mere speculation that the jury drew inferences from these statements . . . is not grounds for reversal." Monn v. Commonwealth, No. 2005-SC-000317-MR, 2006 WL 2455982, p.3 (Ky. Aug. 24, 2006).3
        We conclude, under the facts of this case, that the Bell Circuit Court did not commit reversible error by allowing this testimony regarding the PBT.
 
Stump v. Commonwealth, No. 2007-CA-001762-DG (Ky. App. 1/16/2009) (Ky. App., 2009)
Although the Court in Greene clearly indicated that KRS 189A.104 applied to only certain classes of DUI cases, it prefaced its ultimate holding with a comment regarding the inadmissibility of PBT results at trial for sentencing purposes or to prove guilt, giving the impression that KRS 189A.104(2) renders PBT results inadmissible at trial in all DUI cases.
     However, this comment should not be taken out of context or considered as a judicial mandate regarding the inadmissibility of PBT results at trial as that issue was not before nor conclusively addressed by the Court in Greene.
        In the present case, Stump did not refuse to submit to one of the tests found in KRS 189A.104 nor was he subject to any enhancement of penalties. Consequently, the statute and its prohibition regarding the admissibility of PBT results do not apply to this case. Furthermore, because the statute is inapplicable to Stump’s case, the question of its constitutionality is a moot issue. Because KRS 189A.104 was erroneously applied to Stump, we vacate the circuit court’s opinion, Stump’s conviction, and the district court’s order excluding his PBT result.
        Having said this, we hasten to point out that we have vacated, not reversed. Hence, on remand it will be incumbent upon the district court to determine whether the result of Stump’s PBT is relevant and, pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993), whether the PBT result is sufficiently reliable to be admissible at trial.
 
Greene v. Com., 244 S.W.3d 128 (Ky. App., 2008)
 Prior to the enactment of KRS 189A.104 in 2000, Kentucky case law permitted mention of the PBT, but testimony regarding the specific results was inadmissible. See: Com. V. Rhodes 949 S.W.2d 621 – 1996;. Further, the refusal to submit to a PBT could not be used against the driver suspected of being under the influence of intoxicants. KRS 189A.100(1). Contrary to Greene’s argument, the enactment of KRS 189A.104 does not clearly abrogate this rule. Rather, KRS 189A.104 specifies that only the results from tests conducted with a stationary machine or blood or urine testing may be used for enhancement of penalties or when considering the punishment for refusing to submit to a breath test. As the Commonwealth contends, a trial court may consider the pass/fail determination of the PBT to rule on the question of probable cause for arrest.
 
[U] Williams v. Commonwealth, No. 2002-CA-000541-MR (Ky.App. 03/21/2003)
Williams insists that this statute, enacted in October 2000, prohibited any mention of the PBT. Prior to the statute’s enactment, Kentucky case law was quite clear on this point: Mention of the PBT was not inadmissible, but testimony regarding the specific results was inadmissible. See Commonwealth v. Rhodes, Ky. App., 949 S.W.2d 621 (1996); and Allen v. Commonwealth, Ky. App., 817 S.W.2d 458 (1991). Here there was no testimony regarding Williams’s results on the PBT (the record indicates that it read 0.114%), only that it showed the presence of alcohol. We find no error in the admission of the officer’s testimony.
 
 
KRS 189A.105 Effect of refusal to submit to tests — Information required to be provided when tests requested — Court-ordered testing — Right to consult attorney before submitting to tests — Personal testing option.
(1) A person’s refusal to submit to tests under KRS 189A.103 shall result in revocation of his driving privilege as provided in this chapter.
(2)
(a) At the time a breath, blood, or urine test is requested, the person shall be informed:
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 will result in revocation of his driver’s license, 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 that if the person refuses to submit to the tests he will be unable to obtain a hardship license; and
2. That, if a test is taken, the results of the test may be used against him in court as evidence of violating KRS 189A.010(1), and that if the results of the test are 0.15 or above and the person is subsequently convicted of violating KRS 189A.010(1), then he will be subject to a sentence that is twice as long as the mandatory minimum jail sentence imposed if the results are less than 0.15; 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.
(b) Nothing in this subsection shall be construed to prohibit a judge of a court of competent jurisdiction from issuing a search warrant or other court order requiring a blood or urine test, or a combination thereof, of a defendant charged with a violation of KRS 189A.010, or other statutory violation arising from the incident, when a person is killed or suffers physical injury, as defined in KRS 500.080, as a result of the incident in which the defendant has been charged. However, if the incident involves a motor vehicle accident in which there was a fatality, the investigating peace officer shall seek such a search warrant for blood, breath, or urine testing unless the testing has already been done by consent. If testing done pursuant to a warrant reveals the presence of alcohol or any other substance that impaired the driving ability of a person who is charged with and convicted of an offense arising from the accident, the sentencing court shall require, in addition to any other sentencing provision, that the defendant make restitution to the state for the cost of the testing.
(3) During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
(4) Immediately following the administration of the final test requested by the officer, the person shall again be informed of his 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. He shall then be asked "Do you want such a test?" The officer shall make reasonable efforts to provide transportation to the tests.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 23, effective July 15, 2010. — Amended 2006 Ky. Acts ch. 116, sec. 2, effective July 12, 2006. — Amended 2000 Ky. Acts ch. 467, sec. 9, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 7, effective July 1, 1991.
 
 
 
 
Annotations:
 
 
Commonwealth v. Bedway (Ky. App., 2012)OCTOBER 26, 2012
On June 8, 2011, the circuit court sitting in its appellate capacity rendered a thorough and well-reasoned opinion finding that Bedway’s statutory right to contact and communicate with an attorney was denied and, as a result, evidence of the breathalyzer test should be suppressed. The circuit court acknowledged that although there are a number of published opinions shedding light on the operation of KRS 189A.105(3), the issue of whether contacting a third party to obtain an attorney’s telephone number is encompassed within the meaning of "attempt" is one of first impression. After engaging in an analysis of the applicable case law, including Litteral v. Commonwealth, 282 S.W.3d 331, 333 (Ky. App. 2008), Bhattacharya v. Commonwealth, 292 S.W.3d 901 (Ky. App. 2009), and Commonwealth v. Long, 118 S.W.3d 178 (Ky. App. 2003), the circuit court concluded that a multi-factor test adopted in Long was a "compelling approach to the issue at hand[,]" explaining:
[L]aw enforcement must make a reasonable effort to accommodate a suspect in his attempt to contact an attorney, which can include permitting him to obtain contact information through a third party. Therefore, under the totality of the circumstances, a trial court must determine whether this right is reasonably facilitated. Factors to include, but are not limited to, the following: (1) time of day; (2) whether the suspect is attempting to obtain the number(s) of a specific attorney whom he knows personally, or knows by reputation; (3) whether the suspect affirmatively states that a third party has an attorney phone number not available in the phonebook (i.e. home or cell number); and (4) whether the request is timely. According to Litteral, supra, and Bhattacharya, supra, the underlying concern of KRS 189A.105 is obtaining accurate test results. So long as this task moves forward without delay, the Court sees no legitimate reason why a suspect cannot utilize the time afforded under subsection (3) to act in reasonable furtherance of attempting to contact, and communicate with, an attorney.
As previously stated, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Long, 118 S.W.3d at 181. It is our opinion that the Commonwealth’s interpretation of KRS 189A.105 (3) is unreasonably narrow and is not supported by the plain language of the statute. In accordance with the rationale set forth in Ferguson, we conclude the circuit court properly determined that Bedway’s rights under KRS 189A.105 (3) were violated and the suppression of his test results was warranted.
For the reasons set forth herein, the decision of the Jefferson Circuit Court is affirmed.
 
Carroll v. Commonwealth (Ky. App., 2013) JANUARY 11, 2013
Ms. Carroll’s final argument on appeal is that all of the evidence against her should have been suppressed because Chief Caldwell did not read her the implied consent warnings contained in KRS 189A.105 before or after the second breath test or the blood test. She argues this should lead to the suppression of both breath tests and the blood test. We disagree.
Chief Caldwell testified that prior to his administering the first breathalyzer test, he read the statutorily mandated implied consent warnings contained in KRS 189A.105. This testimony was undisputed and Ms. Carroll does not argue otherwise in her brief. As became clearer at oral argument, her claim is that Chief Caldwell should have also advised her of her right to an independent test after the second breath test and the blood test conducted at the hospital. As Chief Caldwell testified, the second breath test and the blood test were done for medical purposes only and were not going to be used as evidence had the case gone to trial. A failure to give the KRS 189A.105 warnings after the second breath test and the blood test does not require the first breath test results to be suppressed, especially in light of the fact that the second and third tests were not done for evidentiary purposes and not going to be used at trial. Chief Caldwell gave Ms. Caldwell the proper implied consent warnings in relation to the first breath test and those results were the only ones to be used as evidence. Suppression of the first breath test results was not warranted.
 
 
Ferguson v. Commonwealth (Ky. App., 2011)JUNE 24, 2011 2010-CA-001031
At issue here is KRS 189A.105(3) which states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
KRS 189A.105(3). Since the proper interpretation of KRS 189A.105(3) is purely a legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky.App. 2003). As noted in Long:
On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment . . . or to attempt to cure any omissions.
We also disagree with the circuit court’s statement that Ferguson had the opportunity to use her cell phone to contact her attorney while in Trooper Maupin’s cruiser. Ferguson was informed of her right under KRS 189A.105(3) after she exited the cruiser and did not have access to her cell phone. Without Ferguson’s being informed, i.e., knowing of her right prior to the loss of her cell phone, she could not waive her right under KRS 189A.105(3). See Delacruz v. Commonwealth, 324 S.W.3d 418, 420 (Ky.App. 2010). Moreover, the right contained in KRS 189A.105(3) is limited to "the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes . . . ." KRS 189A.105(3). Thus, the circuit court incorrectly determined that Ferguson’s ability to use her cell phone while in the cruiser satisfied her right under KRS 189A.105(3).
In addressing the second issue, whether the violation requires suppression, we review KRS 189.105(3). That statute states, "Inability to communicate with an attorney during this period [preceding the tests] shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal." Certainly the inability of Ferguson to contact and communicate with an attorney did not relieve her of the obligation to undergo the tests. However, it is just as certain that the sentence preceding the above-quoted sentence granted Ferguson the right to communicate with an attorney,3 and by virtue of state action Ferguson’s right to attempt to contact her attorney was frustrated.
While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.
In light of the aforementioned, we reverse the circuit court’s affirmance of the district court’s denial of Ferguson’s motion to suppress and remand this matter for further proceedings not inconsistent with this opinion.
 
Helton v. Commonwealth, No. 2008-SC-000141-MR (Ky. 1/21/2010) (Ky., 2010)
 Appellant Melissa Helton was convicted of multiple counts of wanton murder and several other charges stemming from a car accident in which she was driving under the influence of alcohol. The evidence that she challenges is a blood sample, which the police took at the hospital while she was unconscious or nearly so after the accident. She claims that this practice violates KRS 189A.105(2)(b), which requires a warrant to test blood in a fatality accident, and which she argues controls over the "implied consent" statute, KRS 189A.103. She also claims that even if the statutes are not in conflict, then the consent statute and the practice of taking a blood sample from unconscious DUI suspects in general are unconstitutional.
        More importantly, the fact that Appellant was unconscious at the time did not nullify her statutory implied consent. KRS 189A.103 focuses on whether the suspect affirmatively withdraws consent by refusing to submit to testing. The statute specifically addresses the continuing consent of one who is unconscious, effectively nullifying the right to refuse the test in cases of incapacity to refuse. This is a public policy judgment call that is solely within the province of the legislature, provided no constitutional rights are violated.
        This statutory aspect of Appellant’s argument, therefore, is fairly simple to resolve. Appellant consented to testing by operating a vehicle in Kentucky. She did not thereafter refuse to submit to testing and therefore did not withdraw her consent. Because Appellant "consented," the officer did not violate KRS 189A.105(2)(b) in failing to get a warrant to withdraw and test her blood, but this statutory implied consent provision cannot trump a constitutional prohibition on unreasonable searches because of the Supremacy Clause.
 
Sigretto v. Commonwealth, No. 2009-CA-000691-DG (Ky. App. 4/16/2010) (Ky. App., 2010)
   Though Sigretto’s motion was styled as a "Motion to Dismiss Refusal," it is properly characterized as a motion to exclude evidence of her refusal. KRS 189A.105 makes this clear at section (2)(a)(1) by stating 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 [the DUI statute] . . . ." (Emphasis added). Evidentiary rulings are reviewed under an abuse of discretion standard. Miller v. Eldridge, 146 S.W.3d 909 (Ky. 2004). The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Id. The Owen District Court’s denial of Sigretto’s motion was properly based on KRS 189A.105, and was not arbitrary, unreasonable, unfair, or unsupported by sound legal principles. The Owen Circuit Court properly so found. Accordingly, we find no error.
 
Commonwealth v. Rhodes, No. 2009-CA-000336-DG (Ky. App. 4/2/2010) (Ky. App., 2010)
      On appeal, the Commonwealth argues that despite the language of KRS 189A.105(2)(a), the officers acted appropriately given the circumstances and correctly determined that Rhodes refused to take the intoxilyzer exam. Essentially, the Commonwealth asks this Court to make an exception for officers being required to read the implied consent warning to arrestees when they are unruly or belligerent. Because the statutory language is abundantly clear that police officers must read the implied consent to arrestees, we affirm the ruling of the Fayette Circuit Court.
 …… According to the officers, Rhodes was refusing to walk and was placing all her weight on the officer’s hands. Once inside the intoxilyzer room, the officers tried to place Rhodes in a chair, but she was continuing to be combative. At this point, a third officer had to come in to help restrain Rhodes.
        Officer Felinski testified that it was impossible for him to complete a reading of the implied consent warning to Rhodes despite trying on multiple occasions. He further testified that he "felt" like Rhodes would refuse to submit to the intoxilyzer testing, although he never made such a request.
      Based on the foregoing, we affirm the January 23, 2009, order of the Fayette Circuit Court reversing the Fayette District Court’s ruling that Rhodes refused to submit to the intoxilyzer exam. Given that Rhodes was never presented with the implied consent warning, she simply could not have refused to submit to the exam.
 
Bhattacharya v. Commonwealth, No. 2008-CA-000783-DG (Ky. App. 7/31/2009) (Ky. App., 2009)
    Bhattacharya first alleges that the arresting officer interfered with his right to contact and communicate with an attorney, in violation of KRS 189A.105(3). KRS 189A.105 concerns, in pertinent part, requests by law enforcement for motor vehicle drivers to submit to breath, blood, or urine tests. The section of the statute at issue here, KRS 189A.105(3), provides that once a driver has been asked to submit to a breath, blood, or urine test,
        [d]uring the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
        Bhattacharya alleges that Officer Parker violated KRS 189A.105(3) by improperly requiring Bhattacharya to provide the officer with the telephone numbers Bhattacharya wanted dialed, thus denying him access to a telephone. However, KRS 189A.105(3) only requires law enforcement to afford a person a ten-to-fifteen minute opportunity to attempt to contact and communicate with an attorney. The statute does not require law enforcement to allow criminal defendants to dial the telephone. This Court has previously explained that "[t]he `right’ described [in KRS 189A.105(3)] is very circumscribed. It is merely the right to an opportunity . . . to attempt to contact and communicate with an attorney." Litteral v. Commonwealth, 282 S.W.3d 331, 333 (Ky. App. 2008) (internal quotation marks omitted). In the present case, Bhattacharya was given an opportunity to attempt to contact and communicate with an attorney, even if Officer Parker was the person dialing the telephone numbers that Bhattacharya requested to be dialed.
        To the extent that Officer Parker was the person listening to the telephone as it was ringing to see if anyone answered at the two attorneys’ telephone numbers, Officer Parker attested that nobody answered the telephone calls. Whether the officer was to be believed was a credibility issue. Credibility determinations are the province of the trial court which we will not disturb on appeal. See Uninsured Employers’ Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991).
        Thus, Officer Parker did not violate KRS 189A.105(3) when he insisted on dialing the telephone numbers for the attorneys that Bhattacharya wanted to call.
 Finally, Bhattacharya asserts that his alcohol test results should be suppressed due to the arresting officer’s violation of KRS 189A.105(3). Because the arresting officer sufficiently complied with KRS 189A.105(3), the trial court did not err in denying Bhattacharya’s motion to suppress.
        Accordingly, the Madison Circuit Court’s order affirming the Madison District Court’s judgment is affirmed.
 
Helton v. Commonwealth, No. 2008-SC-000141-MR (Ky. 8/27/2009) (Ky., 2009)
     If a driver refuses the test, he or she effectively withdraws consent for the test. KRS 189A.105(1) states that a "refusal to submit to tests under KRS 189A.103 shall result in revocation of his driving privilege as provided in this chapter," and KRS 189A.105(2)(a) lays out requirements that an officer warn a suspect of certain things when the officer undertakes to test a person’s blood, breath, or urine. Thus, it is clear that refusals are anticipated under the statutory scheme. See also Hernandez-Gonzalez, 72 S.W.3d at 915 (noting that suspects may avoid the test by refusing to submit, though thereby making themselves subject to other sanctions); Wirth, 936 S.W.2d at 82 (noting language in a prior version of the statute stating "no person shall be compelled to submit to any test" meant that a refusal to submit to testing could not be overcome by physical compulsion).
        KRS 189A.105(2)(b) comes into play by requiring the officer to obtain a warrant before testing the suspect when a motor vehicle accident results in a fatality, as is the case here, unless the blood test "has already been done by consent."
        There is no conflict between the statutes, however. In making this conflict argument, Appellant ignores that KRS 189A.105(2)(b) conditions its warrant requirement on the fact of testing not already having been done by consent. But KRS 189A.103 makes consent the default rule in Kentucky. By operating a vehicle in this state, a driver gives his or her consent to certain tests, and KRS 189A.103(2) provides further that a person who is "unconscious, or otherwise in a condition rendering him or her incapable of refusal is deemed not to have withdrawn consent. . . ." Though allowances are made for withdrawal of consent, this does not create a conflict between KRS 189A.105(2)(b) and KRS 189A.103. Nor does it necessarily mean that KRS 189A.105(2)(b) was violated in this case by the officer’s failure to obtain a warrant, assuming of course that Appellant consented to the test.
        Appellant argues that she did not consent because she was unconscious and therefore was "in no position to consent to the taking of her blood." This argument attempts to invert the default rules for consent as established by KRS 189A.103. The default, as noted above, is statutorily implied consent. The question is not whether Appellant consented (or was in a position to be able to consent), but whether she withdrew her consent. Clearly she did not refuse to submit to the test; in fact, she was unable to do so because she was unconscious or nearly so.
    This statutory aspect of Appellant’s argument, therefore, is fairly simple to resolve. Appellant consented to testing by operating a vehicle in Kentucky. She did not thereafter refuse to submit to testing and therefore did not withdraw her consent. Because Appellant "consented," the officer did not violate KRS 189A.105(2)(b) in failing to get a warrant to withdraw and test her blood, but this statutory implied consent provision cannot trump a constitutional prohibition on unreasonable searches because of the Supremacy Clause.
     Consequently, this Court’s review of the blood test search in this case turns on whether the officer had probable cause to believe that Appellant had violated the DUI statutes when he requested the blood test. Unfortunately, that is not in the record, meaning that the trial court did not engage in the whole analysis necessary to decide Appellant’s suppression motion.
Conclusion
        The judgment is hereby vacated and this case is remanded for a new suppression hearing to determine whether the evidence establishes that the police had reasonable grounds to believe alcohol was involved in the accident.
 
Herndon v. Commonwealth, No. 2008-CA-000795-DG (Ky. App. 8/14/2009) (Ky. App., 2009)
     On discretionary review, Leslie Herndon (Herndon), appeals from an opinion of the Lyon Circuit Court affirming the Lyon District Court’s denial of Herndon’s motion to dismiss a charge of driving under the influence of alcohol (DUI), second offense. On appeal, Herndon asserts that his rights under Kentucky Revised Statute (KRS) 189A.105(3), were violated when he was not allowed to privately speak with his attorney prior to the administration of the Intoxilyzer breath test. For the following reasons, we affirm.
      The following facts were stipulated by the parties during both lower court proceedings. On July 31, 2007, Herndon was arrested for DUI second offense, in Lyon County, Kentucky. Once Herndon arrived at the jail, he was read the implied consent and offered an opportunity to contact and communicate with an attorney pursuant to KRS 189A.105(3). Herndon called an attorney and during that conversation his attorney asked if the police officer was present in the room and Herndon answered in the affirmative. At the direction of his attorney, Herndon asked the officer to leave the room and the officer refused.
Herndon argues that the officer violated his attorney-client privilege when he refused to leave the room and thus Herndon was not allowed to privately consult with his attorney before administration of the Intoxilyzer breath test. Specifically, Herndon argues that under KRS 189A.105(3), he should have been allowed to communicate privately with his attorney prior to the administration of the test.
     Based upon the foregoing, Herndon’s interpretation of KRS 189A.105(3), is incorrect. Herndon did not have the right to privately consult with his attorney prior to the administration of his Intoxilyzer breath test. Herndon is arguing for a greater right than the Legislature intended. The right prescribed in KRS 189A.105(3) is very limited. It simply allows a defendant ten to fifteen minutes to contact and communicate with an attorney immediately before the administration of any test. The statute does not state that a defendant has the right to communicate privately with counsel before the administration of any test; nor does the statute state that the peace officer must permit the defendant to communicate in private with his attorney. It is clear from the language of the statute that the Legislature did not intend to grant a right of private consultation with an attorney before the administration of any test and if the Legislature had intended to create this right, it would have done so.
        Further, the statute provides that even if the defendant fails to contact or communicate with an attorney, he is not relieved of the obligation to submit to the tests and penalties specified within the statute. In addition, nothing in the statute allows the defendant the right to have an attorney present for the administration of the test; much less allow the defendant the right to consult privately with his attorney. The plain meaning of this statute is to allow a defendant ten to fifteen minutes to secure the services of an attorney before administration of any test, not to consult privately with an attorney.
 
 
Strauss v. Commonwealth, No. 2008-CA-001613-MR (Ky. App. 8/28/2009) (Ky. App., 2009)
   When Officer Williams read Strauss the implied consent warning, he initially said that he wished to contact an attorney. However, when Officer Williams asked Strauss who his attorney was, Strauss stated that he did not have "a damn attorney." Officer Williams complied with KRS 189A.105(3) by affording Strauss an opportunity to contact an attorney. Thus, even if Strauss had preserved this claim for review, we do not find that any violation of KRS 189A.105(3) occurred under the facts of this case.
        Accordingly, the Fayette Circuit Court’s March 19, 2008, order denying Strauss’ motion to suppress is hereby affirmed.
 
Litteral v. Commonwealth, No. 2007-CA-001982-DG (Ky. App. 12/5/2008) (Ky. App., 2008)
 By statute, the privilege of driving a vehicle in Kentucky carries with it the implied consent of every driver to testing for alcohol concentration which may impair driving ability. KRS 189A.103(1). Another statute requires that a driver suspected of DUI must be informed of the negative implications of refusing to submit to such testing. KRS 189A.105(2)(a). Additionally, the same statute requires that such a driver be informed of the right to be "afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney[.]" KRS 189A.105(3). Litteral argues that he was denied this right and that such denial requires suppression of the breathalyzer test subsequently administered. We believe Litteral is arguing for a greater right to counsel than the Legislature intended to allow.
 
Commonwealth v. Delahanty, No. 2006-CA-000046-MR (Ky. App. 11/2/2007) (Ky. App., 2007)
Note: this is another unpublished decision of the Ct. of Appeals on the issue of interlocutory appeals from District Court. The Supreme Court depublished another opinion in which the Ct. of Appeals allowed this procedure, in Billingsley v. Commonwealth, No. 2002-CA-001879-MR (Ky.App. 06/04/2004)
 
  After the district court suppressed the evidence of Cordova’s refusal, the Commonwealth had two options: 1) to proceed to trial without this evidence, or 2) to seek review of the district court’s decision. In 1986, the Supreme Court of Kentucky adopted the reasoning found South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2D 748 (1983) and held that the Commonwealth could use at trial the evidence of a defendant’s refusal to submit to a blood alcohol test if the requirements of the implied consent had been met. Commonwealth v. Hager, 702 S.W.2d 431, 432 (Ky. 1986). Furthermore, if a DUI suspect refuses any test that is requested, "the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010[.]" KRS 189A.105(2)(a)(1). Because it has been recognized that evidence of a person’s refusal to submit to a blood alcohol test is highly relevant evidence that said person was intoxicated, the Commonwealth chose to file its petition in order for the circuit court to review the district court’s decision. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky. 2004).
        It is undisputed that the district court’s decision to suppress the evidence of Cordova’s refusal constituted an interlocutory order. According to KRS 23A.080(1), "[a] direct appeal may be taken from District Court to Circuit Court from any final action of the District Court." This statute, however, does not provide any means for pursuing an interlocutory appeal from the district court to the circuit court. Commonwealth v. Williams, 995 S.W.2d 400, 402 (Ky. App. 1999). Thus, in this present case, the Commonwealth was prohibited from filing an appeal with the circuit court from the district court’s decision.
        Tipton v. Commonwealth, 770 S.W.2d 239, 241 (Ky. App. 1989), this Court held that the Commonwealth could not seek a direct appeal from the district court to the circuit court regarding an interlocutory order of the district court. However, the Tipton Court reasoned that some vehicle for review of such interlocutory district court rulings should be available. Otherwise, the Commonwealth may be forced to trial without vital evidence or with some other significant prejudice to its case, as shown herein.
        In our opinion, review of district court rulings is available through an original proceeding for relief in the nature of mandamus or prohibition in the appellate court, herein the circuit court. See SCR 1.040(6). [Kentucky Rules of Civil Procedure] 81 allows the old remedy by writs of mandamus and prohibition to be obtained by an original action in the appropriate court. This is not an immediate and direct interlocutory appeal to the appellate court but an original action. Procedurally, review is granted, thereby comporting with KRS 23A.080(2) which says, "The circuit court may issue all writs necessary in aid of its appellate jurisdiction. . . ." (Emphasis added.)
        However, the standard of review is different. Under the direct and interlocutory appeal approach, the standard of review is whether the trial court’s ruling is supported by findings that are of record, and whether such findings were clearly erroneous or the trial court abused its discretion.
        The standard applied in original actions seeking mandamus or prohibition type relief is much different. To obtain relief in
the nature of a writ of prohibition, a petitioner must show that: (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no adequate remedy by appeal, or (2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result. The issuance of the writ is only under exceptional circumstances in order to prevent a miscarriage of justice. See Murphy v. Thomas, Ky., 296 S.W.2d 469 (1956); Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981); and Graham v. Mills, Ky., 694 S.W.2d 698 (1985).        Id. at 241-242.
        In accordance with Tipton and its progeny, the Commonwealth properly filed a petition for writ of prohibition and/or mandamus seeking review of the district court’s decision. However, the circuit court mischaracterized the lower court’s decision3 as dealing strictly with pretrial suspension, and, based on that mischaracterization, it ruled that the Commonwealth had an adequate remedy by appeal. By mischaracterizing the proceeding as a judicial review of the pretrial suspension of Cordova’s license, the circuit court completely ignored the suppression issue and failed to address the merits of the Commonwealth’s petition. We are mindful that the standard of review regarding such original actions is abuse of discretion. Hoskins, 150 S.W.3d at 6. However, by failing to address the Commonwealth’s claims, the circuit court acted arbitrarily; therefore, we conclude that it abused its discretion.
 
KY Cook v. Commonwealth, 129 S.W.3d 351 (Ky. 03/18/2004)
 The statute does not condition the issuance of the warrant on the arrestee’s refusal to consent to the blood test. Obviously, once the warrant was served, the blood sample could be drawn with or without Appellant’s consent. Thus, the refusal to grant Appellant’s request to contact an attorney resulted in no prejudice in this case. Other than refusing to take the test, Appellant made no incriminating statements while at the hospital. An attorney could only have advised Appellant whether to consent to the blood test. Once the warrant was served, the consent issue became moot. Even though Stack’s refusal to allow Appellant to attempt to contact an attorney was wrongful, the error was rendered harmless by the issuance of the warrant and did not require suppression of the blood test results.
 KRS 189A.105(2)(a)(1) requires that the arrestee be advised inter alia: "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." Of course, Appellant was neither indicted for nor convicted of violating KRS 189A.010. And KRS 189A.105(2)(a)(1) does not purport to establish a rule of evidence but only recites what an arrestee must be advised before a refusal can be considered voluntary. Nevertheless, Appellant’s operation of a motor vehicle while intoxicated was a primary fact relied upon by the Commonwealth to prove the aggravated wantonness element of wanton murder.
     Obviously, an implied admission of intoxication as evidenced by a refusal to submit to a blood alcohol test is highly relevant evidence that the person refusing the test is intoxicated. The issue becomes whether the refusal was voluntary.
    In order for there to be a refusal, there must first be a specific request that the person take the test, not just an inquiry whether the person would like to take it. Commonwealth v. Powers, Ky., 453 S.W.2d 260, 262-63 (1970) (interpreting former implied consent statute, KRS 186.565). Stack’s request satisfied this requirement. In addition to a valid request, there must also be a positive refusal to take the test. This refusal can be express or implied by conduct. Commonwealth v. Hayden, Ky., 484 S.W.2d 97, 99 (1972). Appellant refused to take the test but only because he was denied the right to contact an attorney. The only remaining issue is whether Stack’s violation of KRS 189A.105(3) in refusing Appellant’s request to contact an attorney before taking the test rendered the refusal involuntary, thus inadmissible as evidence of his intoxication. This is an issue of first impression in Kentucky.
   Two states have held that when a person is wrongfully denied the right to contact counsel prior to submitting to blood alcohol testing and subsequently refuses to take the test, there is no valid refusal. It was held in Kuntz v. State Highway Comm’r, 405 N.W.2d 285 (N.D. 1987), that if an arrestee is denied the statutory right to counsel prior to submitting to a blood alcohol test, failure to take the test is not viewed as a refusal for purposes of revoking that person’s driver’s license. Id. at 290. The Missouri Court of Appeals held in Brown v. Dir. of Revenue, 34 S.W.3d 166 (Mo. Ct. App. 2000), that a refusal is invalid for purposes of revoking driving privileges if the arrestee was denied his statutory right to contact an attorney. Id. at175.  We agree. As Stack’s request that Appellant take the test did not meet the requirements of KRS 189A.105(3), and Appellant’s refusal was expressly predicated upon the denial of his statutory right to counsel, his refusal was involuntary and should not have been admitted as evidence of his intoxication. The Commonwealth’s assertion that KRS 189A.105(3) does not apply to Appellant because he was not under arrest is patently false. In the first place, the statute does not condition the right to contact an attorney on whether the person has been formally arrested. Secondly, as evidenced by the videotape of the field sobriety tests, Stack had, in fact, placed Appellant "under arrest for DUL" (sic DUI)
 
KY Commonwealth v. Long, 118 S.W.3d 178 (Ky.App. 07/25/2003)
    After the person has submitted to all alcohol concentration tests and substance tests requested by the officer, the person tested shall be permitted to have a person listed in subsection (6) of this section of his own choosing administer a test or tests in addition to any tests administered at the direction of the peace officer. Tests conducted under this section shall be conducted within a reasonable length of time. Provided, however, the non-availability of the person chosen to administer a test or tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.
    Not only must a person be afforded the right to an independent blood test, but they must also be informed of this right under KRS 189A.105 as well as some other rights that attach upon the individual’s submission to a breath, blood or urine test.
     In construing the statutory scheme of KRS Chapter 189A, we believe the plain meaning and unambiguous intent expressed by our legislature is that once an individual has submitted to the state’s breath, blood or urine test to determine his or her alcohol concentration, that individual has a statutory right to have an independent test by a person of his or her own choosing within a reasonable time of the arrest at the individual’s own expense. Moreover, our legislature makes provisions to insure that individuals who have been arrested for driving under the influence know that they have this right by mandating that the police inform them of their right at least two different times. In order to give effect to this right, the statute requires some minimal police allowance and assistance. Considering the totality of the circumstances in this case, we believe the police officer denied Long of her right to obtain an independent test because of a failure to make a reasonable effort to accommodate her right.
 
KY [U] Whitehouse v. Commonwealth, No. 2001-CA-000585-DG (Ky.App. 02/28/2003)
    With regard to his claim that the statute unfairly penalizes those drivers who voluntarily submit to a breath or blood alcohol test, we would note that the statutory scheme of KRS 189A does not encourage drivers to refuse to take blood or breath alcohol concentration tests. There are special penalties for such refusal in the form of loss of a driver’s license. KRS 189A.105(1); KRS 189A.107.
 
 
KY Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914 (Ky. 02/21/2002)
In addition, we wish to correct what appears to be a widespread misinterpretation of the statute. By virtue of KRS 189A.103, one who operates a motor vehicle consents to a test of his blood, breath or urine for t.he purpose of determining alcohol concentration. The phrase "no person shall be compelled" in KRS 189A.105 could not rationally have been intended to contradict the consent provisions of KRS 189A. 103. A more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing.
 
KY Commonwealth v. Morriss, No. 2000-SC-000556-DG (Ky. 03/21/2002)
The parties have debated the effect of Combs v. Commonwealth. In Combs, the defendant had been arrested for DUI and taken to jail where he refused to have blood drawn for alcohol content tests. A search warrant was issued and a sample was taken. On review, this Court explained that KRS 189A.105( 1) states that no person shall be compelled to submit to any tests but that KRS 189A.l05(2)(b) is an exception to this rule. The Court reasoned that since no death or physical injury occurred, the exception did not apply in the Combs case and that the evidence should have been suppressed.
 
KY Barker v. Commonwealth, 32 S.W.3d 515, 32 S.W.3d 515 (Ky.App. 09/29/2000)
Similarly, we believe the warning contained in KRS 189A.105 regarding the consequences of failure to abide by the implied consent rule does not rise to the level of a fundamental or constitutional right, but merely informs the suspect of the repercussion that flows from the refusal. See Wirth, 936 S.W.2d at 82, wherein the court held that "[a] more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing." The statute addresses strictly the notion of implied consent and the penalty for noncompliance therewith. In this regard, we believe, the statute provides the minimal guidance necessary to avoid arbitrary or discriminatory enforcement.
 
KY Commonwealth v. Lopez, 3 S.W.3d 351 (Ky. 10/21/1999)
The holding in Combs relates to those cases prosecuted pursuant to KRS 189A.105 where blood alcohol evidence is obtained pursuant to a search warrant in a DUI case not involving physical injury or death.
 
KY Combs v. Commonwealth of Kentucky, 965 S.W.2d 161 (Ky. 03/19/1998)
 The Court of Appeals stated that the arguments presented by Combs were persuasive and that the natural corollary of KRS 189A.105(1)(b) was that a search warrant may not be issued in a DUI situation where neither death nor physical injury resulted. Thus, the panel said that they would have to agree with the defense "were we to rely on the plain language of the statute." The correct statute is 189A.105(2)(b).
 
 
 
KY Commonwealth of Kentucky v. Wirth, 936 S.W.2d 78 (Ky. 09/26/1996)
The next question presented is whether the warning provided for in KRS 189A.105 is insufficient and should be supplemented with additional warnings. It was the trial court’s opinion that the warnings enumerated in KRS 189A.105(1) (a) (1), (2) and (3) are inaccurate and contain misinformation and should be supplemented so as to avoid any misleading and achieve greater accuracy. In particular, a primary focus is placed upon the provision which states that "no person shall be compelled to submit to any test or tests."KRS 189A. 105. Appellee insists that not only are the warnings set forth in the statute inaccurate, but that it would be impossible to craft a warning which would be truly adequate. The remedy he proposes is to inform a defendant of his right to counsel prior to deciding whether to take or refuse a breath or blood test.
  Initially, we discern no basis upon which a court may sue sponte supplement a warning required by a statute. Quite plainly the statute states that at the time a breath, blood or urine test is requested, the person shall be informed of certain matters. If such a warning is inaccurate, only the Legislature possesses power to modify it to achieve greater accuracy except where the inaccuracy would be so grave as to amount to a constitutional violation. While one may envision a fact pattern in which the required statutory warning would be inaccurate or misleading as applied, in general, it is not, and the trial court was without authority to require supplementation of the warning. In the context of a defendant’s constitutional rights under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), this Court has held that one pleading guilty need not be informed of every possible consequence of the guilty plea. We observed that a multitude of events occur in a criminal proceeding which might influence a defendant to plead guilty or stand trial and that it would be impossible to inform a defendant of all facts and law which might affecthis decision. Jewell v. Commonwealth, Ky., 725 S.W.2d 593 (1987). The same reasoning applies here.
 
 
KRS 189A.107 License suspension for refusal to take alcohol or substance tests — Hearing on alleged refusal –Time period for suspension.
(1) A person who refuses to submit to an alcohol concentration or substance test requested by an officer having reasonable grounds to believe that the person violated KRS 189A.010(1) shall have his driver’s license suspended by the court during the pendency of the action under KRS 189A.200.
(2) In the event a defendant is not convicted of a violation of KRS 189A.010(1) in a case in which it is alleged that he refused to take an alcohol concentration or substance test, upon motion of the attorney for the Commonwealth, the court shall conduct a hearing, without a jury, to determine by clear and convincing evidence if the person actually refused the testing. However, the hearing shall not be required if the court has made a previous determination of the issue at a hearing held under KRS 189A.200 and 189A.220. If the court finds that the person did refuse to submit to the testing, the court shall suspend the person’s driver’s license for a period of time within the time range specified that the license would have been suspended upon conviction as set forth in KRS 189A.070(1).
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 10, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 16, effective July 1, 1991.
 
Annotations:
 
Ferguson v. Commonwealth (Ky. App., 2011)JUNE 24, 2011 2010-CA-001031
At issue here is KRS 189A.105(3) which states:
During the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes to attempt to contact and communicate with an attorney and shall be informed of this right. Inability to communicate with an attorney during this period shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal. Nothing in this section shall be deemed to create a right to have an attorney present during the administration of the tests, but the person’s attorney may be present if the attorney can physically appear at the location where the test is to be administered within the time period established in this section.
KRS 189A.105(3). Since the proper interpretation of KRS 189A.105(3) is purely a legal issue, our review is de novo. Commonwealth v. Long, 118 S.W.3d 178, 181 (Ky.App. 2003). As noted in Long:
On review, it is our duty to construe the statute so as to effectuate the plain meaning and unambiguous intent expressed in the law. Moreover, we understand that the judiciary is not at liberty to add or subtract from the legislative enactment . . . or to attempt to cure any omissions.
We also disagree with the circuit court’s statement that Ferguson had the opportunity to use her cell phone to contact her attorney while in Trooper Maupin’s cruiser. Ferguson was informed of her right under KRS 189A.105(3) after she exited the cruiser and did not have access to her cell phone. Without Ferguson’s being informed, i.e., knowing of her right prior to the loss of her cell phone, she could not waive her right under KRS 189A.105(3). See Delacruz v. Commonwealth, 324 S.W.3d 418, 420 (Ky.App. 2010). Moreover, the right contained in KRS 189A.105(3) is limited to "the period immediately preceding the administration of any test, the person shall be afforded an opportunity of at least ten (10) minutes but not more than fifteen (15) minutes . . . ." KRS 189A.105(3). Thus, the circuit court incorrectly determined that Ferguson’s ability to use her cell phone while in the cruiser satisfied her right under KRS 189A.105(3).
In addressing the second issue, whether the violation requires suppression, we review KRS 189.105(3). That statute states, "Inability to communicate with an attorney during this period [preceding the tests] shall not be deemed to relieve the person of his obligation to submit to the tests and the penalties specified by KRS 189A.010 and 189A.107 shall remain applicable to the person upon refusal." Certainly the inability of Ferguson to contact and communicate with an attorney did not relieve her of the obligation to undergo the tests. However, it is just as certain that the sentence preceding the above-quoted sentence granted Ferguson the right to communicate with an attorney,3 and by virtue of state action Ferguson’s right to attempt to contact her attorney was frustrated.
While the above-quoted sentence could be read to allow state action to eviscerate the right to attempt to contact and communicate with an attorney, we believe that this would be a strained reading of the statute and instead find that once the legislature granted the right to attempt to contact and communicate with an attorney, it did not intend for the succeeding sentence to render the right meaningless. Therefore, we find that Ferguson’s right to contact and communicate with her attorney was frustrated by state action, and, thus, the trial court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.
In light of the aforementioned, we reverse the circuit court’s affirmance of the district court’s denial of Ferguson’s motion to suppress and remand this matter for further proceedings not inconsistent with this opinion.
 
 
KY  Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914 (Ky. 02/21/2002)
Under Kentucky law, one who refuses to submit to a blood alcohol concentration test faces numerous personal consequences, including pretrial suspension of the defendant’s driver’s license (KRS 189A.105); a longer suspension period (KRS 189A.107), imposition of a suspension even if acquitted on the underlying charge (KRS 189A.107(2)), and no hardship privileges (KRSI 89A.41 O(2)). A potentially longer jail sentence is simply another consequence of a defendant’s refusal. If a person refuses to submit to the test, there may still be sufficient evidence for a conviction, and his license will be suspended even if acquitted on the DUI charge. If a person takes the test, there may still not be sufficient evidence for a conviction and his license will not be suspended if acquitted. It is problematic whether a person is incriminated more by taking the test than by refusing the test.
 
KY [U] Whitehouse v. Commonwealth, No. 2001-CA-000585-DG (Ky.App. 02/28/2003)
With regard to his claim that the statute unfairly penalizes those drivers who voluntarily submit to a breath or blood alcohol test, we would note that the statutory scheme of KRS 189A does not encourage drivers to refuse to take blood or breath alcohol concentration tests. There are special penalties for such refusal in the form of loss of a driver’s license. KRS 189A.105(1); KRS 189A.107.
 
KY Combs v. Commonwealth of Kentucky, 965 S.W.2d 161 (Ky. 03/19/1998)
In this case, the exception is not applicable because no death or physical injury occurred. There are penalties provided in KRS 189A.107 which punish a person for refusing to take any blood alcohol tests in that a person who refuses will have their license suspended for at least six months. The clear language of KRS 189A.105 prevents the issuance of a warrant unless death or physical injury is involved. The Court of Appeals agreed but decided this case spontaneously on other issues.
 
 
KRS 189A.110 Minimum detention in custody when blood alcohol reading exceeds .15 percent.
Any person who is arrested for a violation of KRS 189A.010 and who, upon blood alcohol testing, shows a blood alcohol reading above .15 percent shall be detained in custody at least four (4) hours following his arrest.
Effective: July 13, 1984
History: Created 1984 Ky. Acts ch. 165, sec. 11, effective July 13, 1984. 
 
 
no Annotations:
 
 
 
KRS 189A.120 Prosecutor’s duties with regard to amendment of charges — Amendment of blood alcohol concentration — Record of charges and amendments.
(1) When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.
(2) A prosecuting attorney shall not amend a blood alcohol concentration, and he or she shall oppose the amendment of the percentage, unless uncontroverted scientific evidence is presented that the test results were in error. In those cases, the prosecutor shall state his or her reasons for agreeing with the amendment, and the scientific data upon which the amendment was made shall be made a part of the record in this case.
(3) The record of charges and disposition thereof, including reasons for amending the charges, shall be transmitted by the court to the Justice and Public Safety Cabinet for inclusion in the centralized criminal history record information system under KRS 17.150.
Effective: June 26, 2007 History: Amended 2007 Ky. Acts ch. 85, sec. 215, effective June 26, 2007. — Amended 2000 Ky. Acts ch. 467, sec. 11, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 13, effective October 1, 1996. — Amended 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 17, effective July 1, 1991. — Created 1984 Ky. Acts ch. 165, sec. 12, effective July 13, 1984.
 
 
Annotations:
 
Jones v. Commonwealth, No. 2006-SC-000802-DG (Ky. 3/19/2009) (Ky., 2009)
  And we see no indication in the plain language of KRS 189A.120(1) that would cause us to conclude that the Commonwealth is only prohibited from concurring in a defendant’s motion to amend a DUI charge while remaining free to seek such an amendment on its own. Such a conclusion would be illogical. Why would the General Assembly enact a statute that would forbid the Commonwealth from agreeing to an action if proposed by a defendant but that would allow the Commonwealth to seek that very same action on its own? By contrast, the proper construction we have given KRS 189A.120(1) causes that statute to stand for the clear and logical proposition that the Commonwealth may not join a defendant’s motion to amend DUI-related charges, nor may the Commonwealth seek such an amendment on its own. So the possibility of prosecutorial word games is eliminated. After all, tortured semantics and word games simply cannot magically convert a DUI fourth offense into a DUI second offense.
        We fully recognize the wide latitude normally given to prosecutors to determine what charges, if any, to bring against a potential defendant.12 And we have adopted the federal courts’ view that an "independent" motion by a prosecutor to dismiss or amend an indictment should be granted "unless clearly contrary to manifest public interest."13 On this point, the General Assembly has already expressed the public interest of this Commonwealth through the enactment of KRS 189A.120(1), which quite plainly prohibits the Commonwealth from agreeing to an amendment like the one in the case at hand
 
Jones v. Commonwealth, No. 2005-CA-001089-MR (Ky. App. 9/29/2006) (Ky. App., 2006)  
We next consider Jones’ argument that KRS 189A.120 prohibited what occurred here. KRS 189A.120(1) provides as follows:
        When an alcohol concentration for a person twenty-one (21) years of age or older in a prosecution for violation of KRS 189A.010 is 0.08 or above, is 0.02 or above for a person under the age of twenty-one (21), or when the defendant, regardless of age, has refused to take an alcohol concentration or substance test, a prosecuting attorney shall not agree to the amendment of the charge to a lesser offense and shall oppose the amendment of the charge at trial, unless all prosecution witnesses are, and it is expected they will continue to be, unavailable for trial.(Italics added).
        After much consideration, we do not agree that the language of KRS 189A.120 prohibited the amendment that occurred in this case. As grounds for this conclusion, we believe that the phrases "shall not agree to the amendment of the charge to a lesser offense" and "shall oppose the amendment of the charge at trial" anticipate that the impetus for amending a charge is not that of an independent prosecutorial decision. In reaching this conclusion, we particularly note the General Assembly’s use of the words "agree" and "oppose." Merriam-Webster’s Collegiate Dictionary gives many definitions for the word "agree" including: "to concur in (as an opinion): ADMIT, CONCEDE", "to consent to as a course of action", "to accept or concede something (as the views or wishes of another)", "to achieve or be in harmony (as of opinion, feeling, or purpose)", "to get along together", and "to come to terms".6 Merriam-Webster’s Collegiate Dictionary 26 (11th ed. 2003). The plain and literal meaning of "agree," then, contemplates consensus, agreement, or compromise among different parties as to a course of action or an issue in disagreement — not an independent decision by one party to proceed in a certain way as to a particular matter. Likewise, a prosecutor being put in a situation in which he would be required to "oppose the amendment of the charge at trial," anticipates that he did not request such an amendment of his own initiative and that it instead came from another party. We are obliged to follow and give effect to the plain language of KRS 189A.120(1) as it is written. See Bailey v. Commonwealth, 70 S.W.3d 414, 416 (Ky. 2002); Commonwealth v. Harrelson, 14 S.W.3d 541, 547 (Ky. 2000). Moreover, our decision is consistent with our courts’ views on the broad authority afforded prosecutors to amend indictments on their own accord where warranted, as noted above. Accordingly, we find no error as to this issue
 
KRS 189A.130 Assessment of fines — Response to nonpayment.
Fines levied pursuant to this chapter shall be assessed in the manner required by KRS 534.020 (but in amounts consistent with this chapter) and the response to nonpayment of fines shall be governed by KRS 534.060.
Effective: July 13, 1984 History: Created 1984 Ky. Acts ch. 165, sec. 20(24), effective July 13, 1984. 
 
no Annotations:
 
 
KRS 189A.200 Pretrial suspension of license of person charged with driving under theinfluence for refusing to take test, for being a repeat offender, and for causing accident resulting in death or serious physical injury to another person for being a repeat offender — Hearing — Length of suspension.
(1) The court shall at the arraignment or as soon as such relevant information becomes available suspend the motor vehicle operator’s license and motorcycle operator’s license and driving privileges of any person charged with a violation of KRS 189A.010(1) who:
(a) Has refused to take an alcohol concentration or substance test as reflected on the uniform citation form;
(b) Has been convicted of one (1) or more prior offenses as described in KRS 189A.010(5)(e) or has had his operator’s license revoked or suspended on one (1) or more occasions for refusing to take an alcohol concentration or substance test, in the five (5) year period immediately preceding his arrest; or
(c) Was involved in an accident that resulted in death or serious physical injury as defined in KRS 500.080 to a person other than the defendant.
(2) Persons whose licenses have been suspended pursuant to this section may file a motion for judicial review of the suspension, and the court shall conduct the review in accordance with this chapter within thirty (30) days after the filing of the motion. The court shall, at the time of the suspension, advise the defendant of his rights to the review.
(3) When the court orders the suspension of a license pursuant to this section, the defendant shall immediately surrender the license to the Circuit Court clerk, and the court shall retain the defendant in court or remand him into the custody of the sheriff until the license is produced and surrendered. If the defendant has lost his operator’s license, other than due to a previous suspension or revocation, which is still in effect, the sheriff shall take him to the office of the circuit clerk so that a new license can be issued. If the license is currently under suspension or revocation, the provisions of this subsection shall not apply.
(4) The Circuit Court Clerk shall forthwith transmit to the Transportation Cabinet any license surrendered to him pursuant to this section.
(5) Licenses suspended under this section shall remain suspended until a judgment of conviction or acquittal is entered in the case or until the court enters an order terminating the suspension, but in no event for a period longer than the maximum license suspension period applicable to the person under KRS 189A.070 and 189A.107.
(6) Any person whose operator’s license has been suspended pursuant to this section shall be given credit for all pretrial suspension time against the period of revocation imposed. Licenses suspended under this section shall remain suspended until a judgment of conviction or acquittal is entered in the case or until the court enters an order terminating the suspension, but in no event for a period longer than the maximum license suspension period applicable to the person under KRS 189A.070 and 189A.107.
Effective: October 1, 2000 History: Amended 2000 Ky. Acts ch. 467, sec. 13, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 14, effective October 1, 1996. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 9, effective July 1, 1991. 
 
Annotations:
 
KY Hourigan v. Commonwealth of Kentucky, 962 S.W.2d 860 (Ky. 01/22/1998)
In the present cases, KRS 189A.010(1) prohibits operating a motor vehicle while the alcohol concentration in one’s blood or breath is 0.10 or more, or while under the influence of alcohol. KRS 189A.200 requires pre-trial suspension of the motor vehicle operator’s license of a person charged with a violation of KRS 189A.010 who has been convicted of one or more prior offenses within a five year period immediately preceding his arrest or who has refused to take an alcohol concentration test. The elements of the two statutes are so different that there cannot be any dispute that each offense contains elements not required by the other. Thus, the suspension of Appellants’ licenses, prior to trial, did not constitute punishment, per se, and consequently the double jeopardy clause does not apply to these cases.
 
KY Commonwealth of Kentucky v. Howard, 969 S.W.2d 700 (Ky. 06/18/1998)
 The two questions certified to the court were whether KRS 189A.200 violated due process protections and whether the pretrial license suspension was unconstitutional as a violation of the separation of powers principle. The remarks of the majority of the court in Raines, regarding equal protection, were not necessary to the holding of the case and consequently, we have no need to consider them as controlling precedent, nor to otherwise address the language. When Raines was decided, there was only one standard for legal intoxication and that was 0.10 percent. The standard was the same for both drivers over the age of 21 and those under the age of 21. Now the law has set out a different classification which was not involved in the pretrial license suspension statute.
     We overrule Raines to the extent it is in conflict with this opinion.
 
 
KRS 189A.210 Duty of court clerk to obtain defendant’s driving history record upon arrest for driving while impaired.
When a defendant is arrested upon a charge of violating KRS 189A.010(1), the court clerk shall obtain forthwith the information from the defendant’s driving history record and make it a part of the record of the case.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 23, effective July 1, 1991. 
 
no Annotations:
 
 
KRS 189A.220 Judicial review of pretrial license suspension for test refusal.
In any judicial review of a pretrial suspension imposed for refusal to take an alcohol concentration or substance test, if the court determines, by the preponderance of the evidence, that:
(1) The person was charged and arrested by a peace officer with violation of KRS 189A.010(1);
(2) The officer had reasonable grounds to believe that the person was operating or in physical control of a motor vehicle in violation of KRS 189A.010(1);
(3) The person was advised of the implied consent law pursuant to KRS 189A.103;
(4) The peace officer requested the person to take the test or tests pursuant to KRS 189A.103; and then
(5) The person refused to take a test requested by a peace officer pursuant to KRS 189A.103, then the court shall continue the suspension of the person’s operator’s license or privilege to operate a motor vehicle during the pendency of the proceedings.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 14, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 10, effective July 1, 1991. 
 
Annotations:
 
Commonwealth v. Delahanty, No. 2006-CA-000046-MR (Ky. App. 11/2/2007) (Ky. App., 2007)
On appeal, the Commonwealth argues that the circuit court misconstrued the district court’s decision. The Commonwealth argues that the circuit court considered the hearing before the district court as a judicial review, pursuant to KRS 189A.220, of the pretrial suspension of Cordova’s license. According to the Commonwealth, the district court’s decision was not about a pretrial suspension of Cordova’s operator’s license because Cordova did not have a license to suspend in the first place. The Commonwealth states that, in its petition, it was complaining about the district court’s decision to suppress the evidence regarding Cordova’s refusal to submit to a breath test while he was at Metro Corrections. Additionally, the Commonwealth avers that, in its petition, it was requesting the circuit court for an order prohibiting the district court from enforcing its decision to exclude the evidence of Cordova’s refusal. According to the Commonwealth, the record does not support the circuit court’s mischaracterization of the present case as being about a pretrial license suspension.

        In the Jefferson Circuit Court’s opinion, it held that the proceeding before the district court was a judicial review, pursuant to KRS 189A.220, of the pretrial suspension of Cordova’s license. According to the circuit court, the district court heard testimony from both the arresting officer and the Metro Corrections Officer who had informed Mr. Cordova of the law regarding implied consent in this Commonwealth. After testimony was offered, [the district court] found that the suspension of Mr. Cordova’s license should be reinstated as he had not been advised of the implied consent law, a violation of KRS 189A.220(3). [The district court] based this decision upon the methods taken to inform Mr. Cordova who speaks Spanish.
        The Commonwealth has now brought this Petition. In the Petition, the Commonwealth refers to the hearing set forth above as a pretrial hearing based upon a motion to suppress evidence. Consequently, it is argued by the Commonwealth that a writ is necessary in order for it to proceed with a trial. This Court disagrees with the Commonwealth’s position.
        To begin, a writ is an extraordinary remedy and not a substitute for the appellate process. Shumaker v. Paxton, 613 S.W.2d 130 (Ky. 1981). In the present action, the district court judge made a ruling pursuant to KRS 189A.220. The appropriate remedy would be to appeal that decision. The extraordinary measure of a writ is not warranted under these circumstances. Consequently, this Court will deny the Commonwealth’s Petition for Writ of Prohibition and/or Mandamus.
        According to the brief record before us, it appears that Cordova did not have an operator’s license to suspend as he was charged with violating KRS 186.410. In addition, a review of the audio record of the September 1, 2005 hearing reveals that neither the Commonwealth nor Cordova treated the hearing as a judicial review of a pretrial license suspension. Both parties treated the proceeding as if it were a suppression hearing regarding Cordova’s refusal to submit to the breath test. Consequently, while the district court may have stated that the hearing was about a pretrial license suspension, it was, in actuality, a suppression hearing regarding Cordova’s refusal.
        After the district court suppressed the evidence of Cordova’s refusal, the Commonwealth had two options: 1) to proceed to trial without this evidence, or 2) to seek review of the district court’s decision. In 1986, the Supreme Court of Kentucky adopted the reasoning found South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2D 748 (1983) and held that the Commonwealth could use at trial the evidence of a defendant’s refusal to submit to a blood alcohol test if the requirements of the implied consent had been met. Commonwealth v. Hager, 702 S.W.2d 431, 432 (Ky. 1986). Furthermore, if a DUI suspect refuses any test that is requested, "the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010[.]" KRS 189A.105(2)(a)(1). Because it has been recognized that evidence of a person’s refusal to submit to a blood alcohol test is highly relevant evidence that said person was intoxicated, the Commonwealth chose to file its petition in order for the circuit court to review the district court’s decision. See Cook v. Commonwealth, 129 S.W.3d 351, 360 (Ky. 2004).
        It is undisputed that the district court’s decision to suppress the evidence of Cordova’s refusal constituted an interlocutory order. According to KRS 23A.080(1), "[a] direct appeal may be taken from District Court to Circuit Court from any final action of the District Court." This statute, however, does not provide any means for pursuing an interlocutory appeal from the district court to the circuit court. Commonwealth v. Williams, 995 S.W.2d 400, 402 (Ky. Ap tests in addition to those administered at the direction of the peace officer within a reasonable time shall not be grounds for rendering inadmissible as evidence the results of the test or tests administered at the direction of the peace officer.
 
 
KRS 189A.240 Judicial review of pretrial license suspension for repeat offender.
In any judicial review of a pretrial suspension imposed under KRS 189A.200(1)(b), if the court determines by a preponderance of the evidence that:
(1) The person was charged and arrested by a peace officer with a violation of KRS 189A.010(1)(a), (b), (c), (d), or (e);
(2) The peace officer had reasonable grounds to believe that the person was operating a motor vehicle in violation of KRS 189A.010(1)(a), (b), (c), (d), or (e);
(3) There is probable cause to believe that the person committed the violation of KRS 189A.010(1)(a), (b), (c), (d), or (e) as charged; and
(4) The person has been convicted of one (1) or more prior offenses as described in KRS 189A.010(5)(e) or has had his motor vehicle operator’s license suspended or revoked on one (1) or more occasions for refusing to take an alcohol concentration or substance test, in the five (5) year period immediately preceding his arrest, then the court shall continue to suspend the person’s operator’s license or privilege to operate a motor vehicle. The provisions of this section shall not be construed as limiting the person’s ability to challenge any prior convictions or license suspensions or refusals.
Effective: July 15, 2010
History: Amended 2010 Ky. Acts ch. 149, sec. 24, effective July 15, 2010. — Amended 2000 Ky. Acts ch. 467, sec. 21, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 15, effective October 1, 1996. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 12, effective July 1, 1991.
 
no Annotations:
 
 
KRS 189A.250 Judicial review of pretrial suspension imposed under KRS 189A.200(1)(c).
In any judicial review of a pretrial suspension imposed under KRS 189A.200(1)(c), if the court determines by a preponderance of the evidence that:
(1) The person was charged and arrested by a peace officer with violation of KRS 189A.010;
(2) The officer had reasonable grounds to believe that the person was operating or in physical control of a motor vehicle in violation of KRS 189A.010;
(3) There is probable cause to believe that the person committed the violation of KRS 189A.010(1) as charged; and
(4) There is probable cause to believe that the person was involved in an accident that resulted in death or serious physical injury as defined in KRS 500.080 to a person other than the defendant;
then the court shall continue the suspension of the person’s operator’s license or privilege to operate a motor vehicle during the pendency of the proceedings.
Effective: October 1, 2000
History: Created 2000 Ky. Acts ch. 467, sec. 15, effective October 1, 2000. 
 
 
no Annotations:
 
 
KRS 189A.300 Provision of alcohol test instruments to counties.
 The Commonwealth shall provide at least one (1) breath alcohol analysis and simulating unit for each county, paid for by state funds received pursuant to the service fee levied in KRS 189A.050. All units shall be approved by the secretary of the Justice and Public Safety Cabinet or his or her designee.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 85, sec. 216, effective June 26, 2007. — Created
1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 8, effective July 1, 1991..
 
Annotations:
 
Commonwealth of Kentucky v. Rhodes, 949 S.W.2d 621 (Ky.App. 08/16/1996)
 We agree with the Commonwealth’s first argument that the district court properly refused to suppress the blood alcohol concentration ["BAC"] results of the IntoxilyzerTM 5000. The Nelson Circuit Court had ruled the results inadmissible because the Secretary of the Justice Cabinet had not approved the individual model pursuant to KRS 189A.300. The specific language of the statute requires the Secretary "or his designee" to approve "all units." The circuit court construed this language as requiring certification of every breath alcohol analysis unit used in the Commonwealth.
[20]    This interpretation would produce an absurd result. The IntoxilyzerTM 5000 was approved as a proper testing unit by memorandum of the Secretary of the Justice Cabinet on June 1, 1991. Furthermore, a lab technician for the Commonwealth testified that he had inspected the instrument just twelve days prior to appellee’s arrest. Therefore the Nelson Circuit Court erroneously reversed the DUI conviction on this issue.
 
 
KRS 189A.310 Attacking admissibility of prior convictions to enhance penalties– Procedure — Standard.
(1) A court may, upon application of the defendant or attorney for the Commonwealth or upon its own motion, and if the facts of the case so indicate, order that a prior conviction not meeting applicable case law regarding admissibility of a prior conviction cannot be used to enhance criminal penalties including license suspensions or revocations, or for other purposes for which such a conviction might be used.
(2) The Transportation Cabinet shall give full faith and credit to any court decision meeting the requirements of this section.
Effective: October 1, 2000 History: Amended 2000 Ky. Acts ch. 467, sec. 16, effective October 1, 2000. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 14, effective July 1, 1991. 
 
Annotations:
 
Baker v. Commonwealth, No. 2005-CA-000021-MR (Ky. App. 8/31/2007) (Ky. App., 2007) August 31, 2007
Baker now argues that his plea to an offense in Indiana may not be used to enhance the current Kentucky charge because there is nothing in the documents presented as proof of that plea to show he knew that the Indiana charge could ultimately be used to enhance a new charge in Kentucky. "[A] prior conviction not meeting applicable case law regarding admissibility of a prior conviction cannot be used to enhance criminal penalties. . ." KRS 189A.310(1). Baker relies on that section of the statute in conjunction with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) that requires a guilty plea be entered knowingly. He argues that he did not know his guilty plea in Indiana could be used to enhance a future charge in Kentucky and it should therefore be excluded.

        "A conviction’s possible enhancing effect on subsequent sentences has been held to be merely a collateral consequence of a guilty plea about which a defendant need not be advised. . ." King v. Dutton, 17 F.3d 151 (6th Cir. 1994). "[A] defendant need not be advised that a conviction based on a guilty plea can be used in a subsequent prosecution resulting from a pending investigation." Id. "A guilty plea that is brought about by a person’s free will is not less valid because he did not know all possible consequences of the plea. . ." Turner v. Commonwealth, 647 S.W.2d 500 (Ky.App. 1992). Our analysis of Boykin along with the subsequent cases of King and Turner lead us to the conclusion that, while Boykin requires a knowing entry of a guilty plea, it does not require a complete understanding of every possible future collateral effect of that plea.

        Baker determined that a guilty plea to the Indiana charge was an appropriate course of action at that time. There is nothing to indicate that the Indiana plea was not entered into in a knowing manner as regards that crime. To require every person who entered a plea of guilty to be able to completely foretell how that plea may be used in the future would lead to "the absurd result that a person pleading guilty would need a course in criminal law and penology." Id.

        We find that it was not error to admit the evidence of the prior Indiana conviction against Baker in the trial of the Kentucky charge. Finding no error, we affirm the judgment of the Henderson Circuit Court.
 
KY [U] Dunn v. Commonwealth, No. 2002-CA-002032-MR (Ky.App. 12/12/2003)
Dunn’s sole claim of error on appeal is that the trial court erred by denying his motion to suppress the evidence of his May 1997, DUI conviction from Ohio. Specifically, Dunn argues that Commonwealth v. Hodges, the case relied upon by the trial court in denying Dunn’s motion to suppress, "is no longer valid." In Hodges, our Supreme Court held that a defendant who, without challenging the validity of his underlying DUI convictions, pleaded guilty to charges of DUI, fourth offense, waived his right to challenge those underlying convictions at a later date. Dunn argues that since KRS 189A.310 was amended in 2000 after the decision in Hodges was rendered and since the 2000 version of KRS 189A.310 makes no mention of the "waiver" language found in Hodges, the General Assembly implicitly disapproved of the result reached in Hodges. We disagree.
 
 
KRS 189A.320 Court reporting of convictions and license revocations to Transportation Cabinet.
Each court shall report to the Transportation Cabinet the convictions of persons and license revocations imposed by the court for violation of KRS 189A.010(1) and 189A.103.
Effective: July 1, 1991 History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 15, effective July 1, 1991. 
 
no Annotations:
 
 
KRS 189A.330 Reporting by clerk of cases pending more than ninety days — Actions by Attorney General and Chief Justice.
(1) The clerk of the court in which hearings for violation of KRS 189A.010 are heard shall report to the Administrative Office of the Courts on or within five (5) working days of January 1, April 1, July 1, and October 1 of each year the cases involving violations of KRS 189A.010 which have not resulted in a final ruling by the court within ninety (90) days of the date upon which the person was charged with a violation of KRS 189A.010.
(2) The Administrative Office of the Courts shall forward a copy of the lists of these cases to the Chief Justice and the Office of the Attorney General.
(3) Upon a determination that there is sufficient cause, the Office of the Attorney General may appoint a special prosecutor or prosecutors to assist in the disposition of these cases within a reasonable time period.
(4) The Chief Justice may take actions deemed necessary and reasonable to facilitate the resolution of these cases within a reasonable time period.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 18, effective July 1, 1991. 
 
no Annotations:
 
 
KRS 189A.340 Ignition interlock devices. 
(1) In lieu of ordering license plate impoundment under KRS 189A.085 of a person convicted of a second or subsequent violation of KRS 189A.010, the court may order installation of an ignition interlock device as provided in this section as follows:
(a) Except as provided in paragraph (d) of this subsection, at the time that the court revokes a person’s license under any provision of KRS 189A.070 other than KRS 189A.070(1)(a), the court shall also order that, at the conclusion of the license revocation, the person shall be prohibited from operating any motor vehicle or motorcycle without a functioning ignition interlock device.
(b)
 1. The first time in a five (5) year period that a person is penalized under this section, a functioning ignition interlock device shall be installed for a period of six (6) months.
2. The second time in a five (5) year period that a person is penalized under this section, a functioning ignition interlock device shall be installed for a period of twelve (12) months.
3. The third or subsequent time in a five (5) year period that a person is penalized under this section, a functioning ignition interlock device shall be installed for a period of thirty (30) months.
4. The person whose license has been suspended for a second or subsequent violation of KRS 189A.010 shall not be able to apply to the court for permission to install an ignition interlock device until the person has completed one (1) year of license suspension without any subsequent conviction for a violation of KRS 189A.010 or 189A.090. If the court grants permission to install an ignition interlock device, an ignition interlock device shall be installed on all vehicles owned or leased by the person whose license has been suspended.
(c) In determining the five (5) year period under paragraph (b) of this subsection, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered, resulting in the license revocations described in KRS 189A.070.
(d) If the court finds that a person is required to operate a motor vehicle or motorcycle in the course and scope of the person’s employment and the motor vehicle or motorcycle is owned by the employer, then the court shall order that the person may operate that motor vehicle or motorcycle during regular working hours for the purposes of his or her employment without installation of a functioning ignition interlock device on that motor vehicle or motorcycle if the employer has been notified of the prohibition established under paragraphs (a), (b), and (c) of this subsection. 
(2) Upon ordering the installation of a functioning ignition interlock device, the court, without a waiver or a stay of the following procedure, shall:
(a) Transmit its order and other appropriate information to the Transportation Cabinet;
(b) Direct that the Transportation Cabinet records reflect:
1. That the person shall not operate a motor vehicle or motorcycle without a functioning ignition interlock device, except as provided in paragraph (d) of subsection (1) of this section; and
2. Whether the court has expressly permitted the person to operate a motor vehicle or motorcycle without a functioning ignition interlock device, as provided in paragraph (d) of subsection (1) of this section;
(c) Direct the Transportation Cabinet to attach or imprint a notation on the driver’s license of any person restricted under this section stating that the person shall operate only a motor vehicle or motorcycle equipped with a functioning ignition interlock device. However, if the exception provided for in paragraph (d) of subsection (1) of this section applies, the notation shall indicate the exception;
(d) Require proof of the installation of the functioning ignition interlock device and periodic reporting by the person for the verification of the proper functioning of the device;
(e) Require the person to have the device serviced and monitored at least every thirty (30) days for proper functioning by an entity approved by the Transportation Cabinet; and
(f) Require the person to pay the reasonable cost of leasing or buying, installing, servicing, and monitoring the device. The court may establish a payment schedule for the person to follow in paying the cost. 
(3) The Transportation Cabinet shall:
(a) Certify ignition interlock devices for use in this Commonwealth;
(b) Approve ignition interlock device installers who install functioning ignition interlock devices under the requirements of this section;
(c) Approve servicing and monitoring entities identified in paragraph (e) of subsection (2) of this section and require those entities to report on driving activity within seven (7) days of servicing and monitoring each ignition interlock device to the respective court, prosecuting attorney, and defendant;
(d) Publish and periodically update on the Transportation Cabinet web site a list of the certified ignition interlock devices, the approved ignition interlock installers, and the approved servicing and monitoring entities;
(e) Develop a warning label that an ignition interlock device installer shall place on a functioning ignition interlock device before installing that device. The warning label shall warn of the penalties established in KRS 189A.345; and
(f) Promulgate administrative regulations to carry out the provisions of this subsection.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 171, sec. 4, effective July 15, 2002. – Created 2000 Ky. Acts ch. 467, sec. 27, effective October 1, 2000.
 
no Annotations:
 
 
KRS 189A.345 Penalties for violation of KRS 189A.410 and 189A.340 governing ignition interlock devices.
(1) No person shall operate a motor vehicle or motorcycle without a functioning ignition interlock device when prohibited to do so under KRS 189A.340(1) or under KRS 189A.410(2).
(2)
(a) No person shall start a motor vehicle or motorcycle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle or motorcycle to a person subject to the prohibition established in KRS 189.340(1) or under KRS 189A.440(2)(b).
(b) Any person who violates paragraph (a) of this subsection shall:
1. For a first offense, be guilty of a Class B misdemeanor; and
2. For a second or subsequent offense, be guilty of a Class A misdemeanor.
(3)
(a) No person shall:
1. Knowingly install a defective ignition interlock device on a motor vehicle or motorcycle; or
2. Tamper with an installed ignition interlock device with the intent of rendering it defective.
(b) Any person who violates paragraph (a) of this subsection shall:
1. For a first offense, be guilty of a Class B misdemeanor; and
2. For a second or subsequent offense, be guilty of a Class A misdemeanor and be prohibited from installing ignition interlock devices or directing others in the installation of ignition interlock devices.
(4)
(a) No person shall direct another person to install a defective ignition interlock device on a motor vehicle or motorcycle when the person giving the direction knows that the ignition interlock device is defective.
(b) Any person who violates paragraph (a) of this subsection shall:
1. For a first offense, be guilty of a Class B misdemeanor; and
2. For a second or subsequent offense, be guilty of a Class A misdemeanor and be prohibited from directing others in the installation of ignition interlock devices or installing ignition interlock devices.
Effective: July 12, 2006
History: Amended 2006 Ky. Acts ch. 173, sec. 31, effective July 12, 2006. — Amended 2002 Ky. Acts ch. 171, sec. 5, effective July 15, 2002. — Created 2000 Ky. Acts ch. 467, sec. 28, effective October 1, 2000.
 
no Annotations:
 
 
Hardship Licenses
 
KRS 189A.400 District Court jurisdiction over issuance of hardship license — County attorney’s review of application and right to object.
(1) The District Court shall have exclusive jurisdiction over the issuance of hardship licenses.
(2) The county attorney shall review applications submitted to the District Court and may object to the issuance of a hardship license.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 24, July 1, 1991. 
 
 
no Annotations:
 
 
KRS 189A.410 Purposes for issuance of hardship license — Use of ignition interlock device may be required — Prohibition against issuance when alcohol or substance test was refused.
(1) At any time following the expiration of the minimum license suspension periods enumerated in KRS 189A.010(6), 189A.070, and 189A.107, the court may grant the person hardship driving privileges for the balance of the suspension period imposed by the court, upon written petition of the defendant, if it finds reasonable cause to believe that revocation would hinder the person’s ability to:
(a) Continue his employment;
(b) Continue attending school or an educational institution;
(c) Obtain necessary medical care;
(d) Attend driver improvement, alcohol, or substance abuse education programs; or
(e) Attend court-ordered counseling or other programs.
(2) Whenever the court grants a person hardship driving privileges under subsection (1) of this section, the court through court order, may:
(a) Prohibit the person from operating any motor vehicle or motorcycle without a functioning ignition interlock device;
(b) Require that the person comply with all of the requirements of KRS 189A.340, except for the requirements found in KRS 189A.340(1); and
(c) Require the person to install an ignition interlock device on every vehicle owned or leased by the person who is permitted to operate a motor vehicle under this section.
(3) The court shall not issue a hardship license to a person who has refused to take an alcohol concentration or substance test or tests offered by a law enforcement officer.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 171, sec. 6, effective July 15, 2002. — Amended 2000 Ky. Acts ch. 467, sec. 17, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 16, effective October 1, 1996. — Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 25, effective July 1, 1991. 
 
 
Annotations:
 
Butler v. Groce, 880 S.W.2d 547 (Ky. 05/26/1994)
 It is the holding of this Court that license revocation periods provided in KRS 189A.070 are mandatory and not subject to the discretion of the district court. It is our further holding that district courts have jurisdiction to issue hardship licenses pursuant to KRS 189A.410 only to true first offenders.
 
 
KRS 189A.420 Required information for issuance of hardship license.
Before granting hardship driving privileges, the court shall order the defendant to:
(1) Provide the court with proof of motor vehicle insurance;
(2) Provide the court with a written, sworn statement from his employer detailing his job, hours of employment, and the necessity for the defendant to use a motor vehicle either in his work or in travel to and from work (if the license is sought for employment purposes);
(3) If the defendant is self-employed, to provide the information required in subsection (2) together with a sworn and notarized statement (under the penalties of false swearing) as to its truth;
(4) Provide the court with a written, sworn statement from the school or educational institution which he attends, of his class schedule, courses being undertaken, and the necessity for the defendant to use a motor vehicle in his travel to and from school or other educational institution (if the license is sought for educational purposes). Licenses for educational purposes shall not include participation in sports, social, extracurricular, fraternal, or other noneducational activities;
(5) Provide the court with a written, sworn statement from a physician, or other medical professional licensed (but not certified) under the laws of Kentucky, attesting to the defendant’s normal hours of treatment, and the necessity to use a motor vehicle to travel to and from the treatment (if the license is sought for medical purposes);
(6) Provide the court with a written, sworn statement from the director of any alcohol or substance abuse education or treatment program as to the hours in which the defendant is expected to participate in the program, the nature of the program, and the necessity for the defendant to use a motor vehicle to travel to and from the program (if the license is sought for alcohol or substance abuse education or treatment purposes);
(7) Provide the court with a copy of any court order relating to treatment, participation in driver improvement programs, or other terms and conditions ordered by the court relating to the defendant which require the defendant to use a motor vehicle in traveling to and from the court-ordered program. The judge shall include in the order the necessity for the use of the motor vehicle; and
(8) Provide to the court such other information as may be required by administrative regulation of the Transportation Cabinet.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 26, effective July 1, 1991.
 
no Annotations:
 
 
KRS 189A.430 Permit card and window decal for hardship driving privileges — Requirement to carry permit — Penalty for failure to display decal.
(1) The cabinet, upon written order of the District Court, shall deliver to the defendant a permit card setting forth the times, places, purposes, and other conditions limiting the defendant’s use of a motor vehicle. These terms and conditions shall be set forth in specific terms which identify permitted activity and specify that all other activity is prohibited.
(2) The grant of hardship driving privileges shall be conditioned upon the defendant having the permit in his possession at all times during which he is operating, or authorized to operate, a motor vehicle.
(3) The cabinet shall issue a decal, two (2) inches by three (3) inches, to be placed on the rear window of the vehicle to be operated by the defendant. Failure to display the decal shall be a Class B misdemeanor.
Effective: July 1, 1991 History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 27, effective July 1, 1991. 
 
no Annotations:
 
 
 
 
 
 
KRS 189A.440 Prohibition against use of vehicle other than for purpose authorized by hardship license — Penalty — Penalty for false application statement.
(1) No defendant who is permitted to have a hardship license shall operate a motor vehicle at any time, place, or for any purpose other than those authorized upon the face of the hardship license.
(2) Any defendant who violates the provisions of subsection (1) of this section is guilty of a Class A misdemeanor, and shall have his license revoked for the initial period of revocation plus an additional six (6) months.
(3) Any defendant or any other person who knowingly assists the defendant in making a false application statement is guilty of a Class A misdemeanor and shall have his motor vehicle or motorcycle operator’s license revoked for six (6) months.
Effective: July 1, 1991 History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 28, effective July 1, 1991. 
 
 
no Annotations:
 
 
KRS 189A.450 Service fee for hardship driving privileges.
All persons granted hardship driving privileges shall pay a service fee to the Transportation Cabinet an amount not to exceed the actual cost to the Cabinet for issuing the permit card and decal, but not to exceed two hundred dollars ($200).
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 29, effective July 1, 1991. 
 
no Annotations:
 
 
KRS 189A.460 Transportation Cabinet’s responsibility as to administrative regulations and forms relating to hardship licenses.
 The Transportation Cabinet shall promulgate administrative regulations and shall issue hardship license application forms and other forms necessary for the implementation of KRS 189A.400 to 189A.460.
Effective: July 1, 1991
History: Created 1991 (1st Extra. Sess.) Ky. Acts ch. 15, sec. 30, effective July 1, 1991.
 
no Annotations:
 
 
CHAPTER 189 DUI AND ALCOHOL RELATED STATUTES:
 
KRS 189.520 Operating vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited — Presumptions concerning intoxication.
(1) No person under the influence of intoxicating beverages or any substance which may impair one’s driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state.
(2) No peace officer or State Police officer shall fail to enforce rigidly this section.
(3) In any criminal prosecution for a violation of subsection (1) of this section, wherein the defendant is charged with having operated a vehicle which is not a motor vehicle while under the influence of intoxicating beverages, the alcohol concentration, as defined in KRS 189A.005, in the defendant’s blood as determined at the time of making an analysis of his blood, urine, or breath, shall give rise to the following presumptions:
(a) If there was an alcohol concentration of less than 0.05, it shall be presumed that the defendant was not under the influence of alcohol;
(b) If there was an alcohol concentration of 0.05 or greater but less than 0.08, such fact shall not constitute a presumption that the defendant either was or was not under the influence of alcohol, but such fact may be considered, together with other competent evidence, in determining the guilt or innocence of the defendant; and
(c) If there was an alcohol concentration of 0.08 or more, it shall be presumed that the defendant was under the influence of alcohol.
(4) The provisions of subsection (3) of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the defendant was under the influence of intoxicating beverages.
Effective: October 1, 2000  History: Amended 2000 Ky. Acts ch. 467, sec. 12, effective October 1, 2000. — Amended 1991 (1st Extra. Sess.) Acts ch. 15, sec. 19, effective July 1, 1991. — Amended 1984 Ky. Acts ch. 165, sec. 18, effective July 13, 1984. — Amended 1968 Ky. Acts ch. 184, sec. 7. — Amended 1958 Ky. Acts ch. 126, sec. 24. — Amended 1954 Ky. Acts ch. 74, sec. 1. — Amended 1946 Ky. Acts ch. 209, sec. 1. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2739g-34, 2739g-34a, 2739g-34b. 
 
 
Annotations:
 
KY [U] Burton v. Waters, No. 2003-CA-001170-MR (Ky.App. 09/24/2004)
Chipman controls in our case. Burton was a passenger in a traffic stop for a possible alcohol offense. Officer Waters allowed the occupants to proceed. The mere presence in a stopped vehicle creates no duty owed by the officer to the passengers. There was no special relationship between the officer and the passenger since the passenger was not taken into custody and the officer did not commit the injuries to the passenger. KRS 189.520 relates to non-motorized vehicles which is not the case here. Without a duty, Burton’s remaining arguments become moot as to Officer Waters.
 
KY [U] Western-Southern Life Assurance Company v. Maddox, No. 2002-CA-001080-MR (Ky.App. 11/14/2003)
 In Bridges v. Commonwealth, our Supreme Court stated that although KRS 189.520 creates a presumption of intoxication if one’s blood alcohol level is above the legal limit, that presumption is rebuttable by other evidence. Further, the ultimate question of intoxication is a question properly reserved for the jury to determine. In the case sub judice, although there was evidence suggesting that Kevin’s blood alcohol level was above the legal limit at the time of his accident, there was also evidence to the contrary.
 
KY Commonwealth v. Hernandez-Gonzalez, 72 S.W.3d 914 (Ky. 02/21/2002)
 Pursuant to the 2000 legislative amendments, KRS 189A.103(1) provides that every person who operates or is in physical control of a vehicle in the Commonwealth "has given his consent to one (1) or more tests of his blood, breath, urine, or combination thereof, for the purpose of determining alcohol concentration if an officer his reasonable grounds to believe that a violation of KRS 189A.010(1) or KRS 189.520(l) has occurred." (emphasis added). Prior to the amendments, the statute merely stated that a person was "deemed to have given his consent." The 2000 amendment of the statute to read "has given his consent" makes it unmistakable that a suspected drunk driver must submit to a test to determine blood alcohol concentration.

KY Love v. Commonwealth, 55 S.W.3d 816 (Ky. 02/22/2001)
 Appellant complains that the requirements of 500 KAR 8:030(2) were not complied with when the hospital drew blood from Appellant in accordance with its own procedures at 4:25 a.m. KRS 189A.103(1) and (3) provide that if a person is arrested for an offense arising out of a violation of KRS 189A.010(1) or KRS 189.520(l), a breath, blood or urine test may be administered at the direction of a peace officer and in accordance with administrative regulations. Appellant was not under arrest when the hospital drew his blood, and his blood was not drawn at the request or under the direction of a peace officer. Thus, the procedures required by 500 KAR 8:030(2) were not applicable. Love argues that he was in police custody, and cites to Cook v. Commonwealth, Ky., 826 S.W.2d 329 (1992) for the proposition that this is sufficient to trigger the requirements of KRS 189A. 103 and 500 KAR 8:030(2). However, in Cook, hospital personnel admittedly drew the defendant’s blood sample at the direction of a police officer. The issue in that case was whether the defendant had consented to the "search."
 
 
OPEN CONTAINER LAW PROVIDING MOTOR VEHICLE TO INTOXICATED PERSON
 
KRS 189.530 Providing motor vehicle to person intoxicated or under influence of substance which may impair driving ability — Possession of open alcoholic beverage container in a motor vehicle prohibited — Exceptions — Definitions — Election of offenses to prosecute.
(1) No person shall provide a motor vehicle to another to operate upon a highway, knowing that the other person is in an intoxicated condition, or under the influence of any substance which may impair one’s driving ability.
(2) A person is guilty of possession of an open alcoholic beverage container in a motor vehicle, when he or she has in his or her possession an open alcoholic beverage container in the passenger area of a motor vehicle located on a public highway or on the right-of-way of a public highway. However, nothing in this section shall prohibit the possession of an open alcoholic beverage container by an individual who is strictly a passenger and not the driver, in the passenger area of a motor vehicle maintained or used primarily for the transportation of persons for compensation, such as buses, taxis, and limousines, or in a recreational vehicle, motor home, or motor coach.
(3) For purposes of this section, "alcoholic beverage" means:
(a) Beer, ale, porter, stout, and other similar fermented beverages including sake or similar products of any name or description containing one-half of one percent (0.5%) or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor;
(b) Wine of not less than one-half of one percent (0.5%) of alcohol by volume; or
(c) Distilled spirits which is that substance known as ethyl alcohol, ethanol, or spirits of wine in any form including all dilutions and mixtures thereof from whatever source or by whatever process produced.
(4) For the purposes of this section, "open alcoholic beverage container" means any bottle, can, or other receptacle that contains any amount of alcoholic beverage, and:
(a) Is open or has a broken seal; or
(b) The contents of which are partially removed.
(5) For the purposes of this section, "passenger area" means the area designed to seat the driver and the passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment. Passenger area does not include possession of an open alcoholic beverage container in a locked glove compartment, or behind the last upright seat or in an area not normally occupied by the driver or a passenger in a motor vehicle that is not equipped with a trunk.
(6) For the purpose of this section, "public highway" or "right-of-way of a public highway" means the entire width between and immediately adjacent to the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
(7) No person shall, as a result of a single course of conduct, be tried for or convicted of a violation of this section and a violation of KRS 222.202 or 525.100. The attorney for the Commonwealth shall elect under which statute to proceed. A conviction, decision not to prosecute, or dismissal of charges under any of these statutes shall operate as a bar to prosecution under any other of these statutes for offenses arising out of the same course of conduct.
Effective: October 1, 2000
History: Amended 2000 Ky. Acts ch. 467, sec. 18, effective October 1, 2000. — Amended 1984 Ky. Acts ch. 165, sec. 19, effective July 13, 1984. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 1376r-2.
 
 
NO Annotations:
 
  
D.O.T. MAY ISSUE DRIVER’S LICENSE EVEN IF YOU ARE SUSPENDED IN ANOTHER STATE UNDER CERTAIN CONDITIONS:
 
KRS 186.442 Suspension or revocation of license or driving privileges in another jurisdiction — Persons eligible for restricted license — Issuance of license valid only in Kentucky — Removal of restrictions — Inapplicability to commercial driver’s license.
(1) The circuit clerk shall, before issuing or renewing a Kentucky operator’s license, verify through the National Drivers Register that the person applying for an initial or renewal Kentucky operator’s license does not currently have his or her operator’s license or driving privilege suspended or revoked in another licensing jurisdiction.
(2) If the person’s operator’s license or driving privilege is currently suspended or revoked in another licensing jurisdiction for a traffic offense where the conviction for the offense is less than five (5) years old, the circuit clerk shall not issue the person an initial or renewal Kentucky operator’s license until the person resolves the matter in the other licensing jurisdiction and complies with the provisions of this chapter.
(3) A person whose operator’s license has been suspended or revoked in another licensing jurisdiction, or the holder of a Kentucky operator’s license whose driving privileges have been suspended in another licensing jurisdiction, may be issued a Kentucky license, or may renew a Kentucky license if:
(a) The conviction causing the suspension or revocation is more than five (5) years old;
(b) The conviction is for a traffic offense other than a felony traffic offense or a habitual violator offense; and
(c) The person has been a resident of the Commonwealth for at least five (5) years prior to the date of application for issuance or renewal.
(4)
(a) A person applying for an operator’s license under subsection (3) of this section shall submit an application to the Transportation Cabinet in Frankfort or a Transportation Cabinet field office.
(b) The Transportation Cabinet shall, within fifteen (15) days of receipt of the application, determine if the person is eligible to receive a license under subsection (3) of this section.
(c) If the Transportation Cabinet determines the person may be issued a license under subsection (3) of this section, the cabinet shall issue the person an official form that the applicant shall present to the circuit clerk of the county where the person resides. Upon receipt of this notice, and completion of any examinations required under KRS 186.480, the circuit clerk shall issue the applicant a license under subsection (3) of this section.
(5) A person issued a Kentucky operator’s license in accordance with subsection (3) of this section shall be issued an operator’s license marked "Valid in Kentucky Only" and shall sign a statement that the person understands that he or she may be subject to arrest and detention if stopped by a law enforcement officer in another state while operating a motor vehicle on this restricted license.
(6) If a person granted a license under subsection (3) of this section satisfies the requirements to have the suspension or revocation in another state lifted, the person shall apply to the circuit clerk to be issued a new license without the restrictions outlined in subsection (3) of this section.
(7) The provisions of subsection (3) of this section shall not apply to a commercial driver’s license.
Effective: June 24, 2003
History: Created 2003 Ky. Acts ch. 189, sec. 1, effective June 24, 2003.
 
NO ANNOTATIONS FOR KRS 186.442
 
 
DOT RULES REGARDING SUSPENDED LICENSES
 
KRS 186.560 Mandatory revocation or denial of license — Causes — Period of revocation or denial — Prohibition against reductions of certain revocations or denials — Limited exception relating to enrollment in alcohol or substance abuse education or treatment programs.
(1) The cabinet shall forthwith revoke the license of any operator of a motor vehicle upon receiving record of his conviction of any of the following offenses:
(a) Murder or manslaughter resulting from the operation of a motor vehicle;
(b) Driving a vehicle which is not a motor vehicle while under the influence of alcohol or any other substance which may impair one’s driving ability;
(c) Perjury or the making of a false affidavit under KRS 186.400 to 186.640 or any law requiring the registration of motor vehicles or regulating their operation on highways;
(d) Any felony in the commission of which a motor vehicle is used;
(e) Conviction or forfeiture of bail upon three (3) charges of reckless driving within the preceding twelve (12) months;
(f) Conviction of driving a motor vehicle involved in an accident and failing to stop and disclose his identity at the scene of the accident;
(g) Conviction of theft of a motor vehicle or any of its parts, including the conviction of any person under the age of eighteen (18) years;
(h) Failure to have in full force and effect the security required by Subtitle 39 of KRS Chapter 304 upon conviction of a second and each subsequent offense within any five (5) year period;
(i) Conviction for fraudulent use of a driver’s license or use of a fraudulent driver’s license to purchase or attempt to purchase alcoholic beverages, as defined in KRS 241.010, in violation of KRS 244.085(5); and
(j) Conviction of operating a motor vehicle, motorcycle, or moped without an operator’s license as required by KRS 186.410.
(2) If the person convicted of any offense named in subsection (1) of this section is not the holder of a license, the cabinet shall deny the person so convicted a license for the same period of time as though he had possessed a license which had been revoked. If through an inadvertence the defendant should be issued a license, the cabinet shall forthwith cancel it.
(3) The cabinet, upon receiving a record of the conviction of any person upon a charge of operating a motor vehicle while the license of that person is denied, or suspended, or revoked, or while his privilege to operate a motor vehicle is withdrawn, shall immediately extend the period of the first denial, suspension, revocation, or withdrawal for an additional like period.
(4) The revocation or denial of a license or the withdrawal of the privilege of operating a motor vehicle for a violation of subsection (1)(a) of this section shall be for a period of not less than five (5) years. Revocations or denials under this section shall not be subject to any lessening of penalties authorized under any other provision of this section or any other statute.
 (5) Except as provided in subsections (3), (4), and (8) of this section, in all other cases, the revocation or denial of a license or the withdrawal of the privilege of operating a motor vehicle under this section shall be for a period of six (6) months, except that if the same person has had one (1) previous conviction of any offense enumerated in subsection (1) of this section, regardless of whether the person’s license was revoked because of the previous conviction, the period of the revocation, denial, or withdrawal shall be one (1) year. If the person has had more than one (1) previous conviction of the offenses considered collectively as enumerated in subsection (1) of this section, regardless of whether the person’s license was revoked for any previous conviction, the period of revocation, denial, or withdrawal shall be for not less than two (2) years. If the cabinet, upon receipt of the written recommendation of the court in which any person has been convicted of violating KRS 189.520(1) or 244.085(5) as relates to instances in which a driver’s license or fraudulent driver’s license was the identification used or attempted to be used in the commission of the offense, who has had no previous conviction of said offense, the person’s operator’s license shall not be revoked, but the person’s operator’s license shall be restricted to any terms and conditions the secretary in his discretion may require, provided the person has enrolled in an alcohol or substance abuse education or treatment program as the cabinet shall require. If the person fails to satisfactorily complete the education or treatment program or violates the restrictions on his operator’s license, the cabinet shall immediately revoke his operator’s license for a period of six (6) months.
(6) In order to secure the reinstatement of a license to operate a motor vehicle or motorcycle restored following a period of suspension or revocation pursuant to KRS 189A.070, 189A.080, and 189A.090, the person whose license is suspended or revoked shall comply with the fees and other procedures of the Transportation Cabinet with regard to the reinstatement of suspended or revoked licenses.
(7) The cabinet shall revoke the license of any operator of a motor vehicle upon receiving notification that the person is under age eighteen (18) and has dropped out of school or is academically deficient, as defined in KRS 159.051(1).
(8) A person under the age of eighteen (18) who is convicted of the offenses of subsections (1) or (3) of this section, except for subsection (1)(h) or (i) of this section, shall have his license revoked until he reaches the age of eighteen (18) or shall have his license revoked as provided in this section, whichever penalty will result in the longer period of revocation.
Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 235, sec. 2, effective July 12, 2006. — Amended 2000 Ky. Acts ch. 467, secs. 26 and 29, effective October 1, 2000. — Amended 1996 Ky. Acts ch. 198, sec. 8, effective October 1, 1996. — Amended 1991 (1st Extra. Sess.) Acts Ch. 15, Sec. 20, effective July 1, 1991. — Amended 1990 Ky. Acts ch. 234, sec. 5, effective July 13, 1990. — Amended 1988 Ky. Acts ch. 222, sec. 1, effective July 15, 1988. — Amended 1986 Ky. Acts ch. 376, sec. 2, effective July 15, 1986; ch. 434, sec. 1, effective July 15, 1986; and ch. 443, sec. 3, effective July 15, 1986. — Amended 1984 Ky. Acts ch. 129, sec. 3, effective January 1, 1985; and ch. 165, sec. 15, effective July 13, 1985. — Amended 1980 Ky. Acts ch. 103, sec. 1, effective July 15, 1980. — Amended 1974 Ky. Acts ch. 217, sec. 1. — Amended 1966
Ky. Acts ch. 17, sec. 1. — Amended 1946 Ky. Acts ch. 127, sec. 7. — Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 2739m-49.
 
ANNOTATION:
 
Com. v. Blakely, 223 S.W.3d 107 (Ky., 2007) May 24, 2007
The full language of the 2005 version of KRS 304.99-060(2) is as follows: "A person who operates a motor vehicle without security on the motor vehicle as required by Subtitle 39 of this chapter shall: a) Be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) or sentenced to not more than ninety (90) days in jail, or both; and b) For the second and each subsequent offense within any five (5) year period, have his operator’s license revoked in accordance with KRS 186.560, and may be sentenced to not more than one hundred eighty (180) days in jail or fined not less than one thousand dollars ($1,000) nor more than two thousand five hundred dollars ($2,500), or both."
 
 
DOT RULES RE: COMMERCIAL DRIVER’S DUI
 
KRS 281A.190 Disqualification — Suspension, revocation, or cancellation — Right to appeal.
(1) A person who holds or is required to hold a CDL shall be disqualified from driving a commercial motor vehicle for a period of one (1) year if convicted of:
(a) Driving or being in physical control of a motor vehicle under the influence of alcohol or a controlled substance;
(b) Driving or being in physical control of a motor vehicle while the alcohol concentration of the person’s blood or breath or urine is four hundredths (0.04) or more;
(c) Leaving the scene of an accident involving a motor vehicle driven by a person who holds or is required to hold a CDL;
(d) Using a motor vehicle in the commission of any felony listed in KRS 186.560;
(e) Refusing to submit to testing as required by KRS 281A.220 when driving a motor vehicle;
(f) Committing a first violation of driving a commercial motor vehicle while the person’s commercial driver’s license is revoked, suspended, or canceled, or when the person is disqualified from operating a commercial motor vehicle; or
(g) Causing a fatality through negligent or criminal operation of a commercial motor vehicle.
(2) A person who holds or is required to hold a CDL shall be disqualified for life if convicted of two (2) or more violations of any of the offenses specified in subsection (1) of this section or any combination of those offenses, arising from two (2) or more separate incidents. The provisions of this subsection shall only apply to convictions that occurred after the disqualification dates established by the Federal Motor Carrier Safety Administration. The Transportation Cabinet shall set forth those dates in an administrative regulation promulgated pursuant to KRS Chapter 13A.
(3) If any violation specified in subsection (1) of this section occurred while transporting a hazardous material required to be placarded, the person who holds or is required to hold a CDL shall be disqualified for a period of three (3) years.
(4) Notwithstanding any other provisions of law, a period of suspension, revocation, or disqualification imposed under the provisions of this chapter shall not be reduced. However, in accordance with the provisions of Title 49, Code of Federal Regulations, Part 383, the cabinet may establish guidelines including conditions under which a disqualification of not less than ten (10) years may be imposed.
(5) A person who holds or is required to hold a CDL shall be disqualified from driving a commercial motor vehicle for life who uses a commercial motor vehicle in the commission of any felony involving the manufacture, distribution, or dispensing of a controlled substance, or possession with intent to manufacture, distribute, or dispense a controlled substance.
(6) A person who holds or is required to hold a CDL shall be disqualified from driving a commercial motor vehicle for a period of sixty (60) days if convicted of two (2) serious traffic violations, or one hundred twenty (120) days consecutively if convicted of three (3) serious traffic violations, committed in a commercial motor vehicle arising from separate incidents occurring within a three (3) year period.
(7) A person who holds or is required to hold a CDL shall be disqualified for the first offense from driving a commercial motor vehicle for six (6) months if the person has been convicted of committing any of those offenses enumerated in KRS 186.610 involving a commercial motor vehicle, commercial driver’s license, or application for that license. For the second and each subsequent offense, the person shall be disqualified from operating a commercial motor vehicle for a period of one (1) year.
(8) The cabinet shall deny a person a commercial driver’s license or shall suspend, revoke, or cancel his commercial driving privilege, subject to a hearing conducted in accordance with KRS 189A.107, when the cabinet has reason to believe that the person refused to submit to a test to determine his alcohol concentration while driving a commercial motor vehicle.
(9) If a person who holds or is required to hold a CDL is convicted of any of the railroad crossing offenses or conduct enumerated in KRS 189.500, 189.560, and 189.565, then the person shall be disqualified from operating a commercial motor vehicle for a period of:
(a) Sixty (60) days for the first offense;
(b) One hundred twenty (120) days for the second offense within a three (3) year period; and
(c) One (1) year for the third or subsequent offense within a three (3) year period.
(10) If a person who holds or is required to hold a CDL violates an out-of-service order while transporting nonhazardous materials, then the person shall be disqualified from operating a commercial motor vehicle for a period of:
(a) Ninety (90) days for the first offense;
(b) One (1) year for the second offense in a separate incident within a ten (10) year period; and
(c) Three (3) years for the third or subsequent offense in a separate incident within a ten (10) year period.
(11) If a person who holds or is required to hold a CDL violates an out-of-service order while transporting hazardous materials required to be placarded under the 49 U.S.C. sec. 5101 et seq., or operating a commercial motor vehicle designed to transport sixteen (16) or more passengers, including the driver, then the person shall be disqualified from operating a commercial motor vehicle for a period of:
(a) One hundred eighty (180) days for the first offense; and
(b) Three (3) years for the second or subsequent offense in a separate incident within a ten (10) year period.
(12) A person who violates the provisions of KRS 281A.205 shall be fined fifty dollars ($50) for the first offense. For a subsequent offense, a violator shall be fined one hundred dollars ($100) and shall have his or her school bus endorsement suspended for a period of six (6) months.
(13) After disqualifying a commercial driver’s license holder or suspending, revoking, or canceling a commercial driver’s license, the Transportation Cabinet shall update its records to reflect that action within ten (10) days of receipt. After disqualifying a commercial driver’s license holder or suspending, revoking, or canceling an out-of-state commercial driver’s license holder’s privilege to operate a commercial motor vehicle for at least sixty (60) days, the Transportation Cabinet shall notify the licensing authority of the state which issued the commercial driver’s license or commercial driver’s instruction permit with this information within ten (10) days. The notification shall include both the disqualification and the violation that resulted in the disqualification, suspension, cancellation, or revocation.
(14) Upon notice from the Federal Motor Carrier Safety Administration that a driver has been determined to be an imminent hazard and has been disqualified from operating a commercial motor vehicle, the cabinet shall act in accordance with the provisions of 49 C.F.R. sec. 383.52. The cabinet shall notify the driver of the disqualification, which shall not exceed one (1) year in duration, and of the right to appeal to the Federal Motor Carrier Safety Administration in accordance with 49 C.F.R. sec. 383.52.
Effective: June 26, 2007
History: Amended 2007 Ky. Acts ch. 28, sec. 7, effective June 26, 2007; and ch. 138, sec. 2, effective June 26, 2007. — Amended 2005 Ky. Acts ch. 165, sec. 8, effective June 20, 2005. — Amended 1996 Ky. Acts ch. 318, sec. 210, effective July 15, 1996. — Amended 1992 Ky. Acts ch. 274, sec. 6, effective April 7, 1992. — Created 1990 Ky. Acts ch. 455, sec. 19, effective July 1, 1991.
Legislative Research Commission Note (6/26/2007). This section was amended by 2007 Ky. Acts chs. 28 and 138, which do not appear to be in conflict and have been codified together.
 
Annotations:
 
Commonwealth v. Filben, No. 2004-CA-002207-DG (Ky. App. 7/21/2006) (Ky. App., 2006)
 …the District Court dismissed the DUI charge against the defendant on the basis that police had failed to comply with KRS 189A.103(7).
    It is clear from the comments of the trial court at the conclusion of the suppression hearing that dismissal of the charges was intended as a sanction on the basis that police had failed to comply with KRS 189A.103(7). We find no authority under Kentucky law with respect to this issue.
 
 KY Billingsley v. Commonwealth, No. 2002-CA-001879-MR (Ky.App. 06/04/2004)
 Roberts, 122 S.W.2d at 528. Here, appellant specifically argues that the circuit court failed to find that the BA test was performed in accordance with standard operating procedures since the arresting officer failed to follow the directions for using the simulator attachment issued by the Justice Cabinet. Appellant contends that because the manufacturer of the Intoxilyzer 5000 has not issued instructions for the simulator attachment, the Justice Cabinet’s direction list should be considered the "standard operating instructions" requirement as found in Roberts, 122 S.W.3d at 528. See KRS 189A.103(3)(a); KRS 189A.103(4); and 500 KAR 8:030(2).
 
 Note: This decision was depublished by Ky. Supreme Court
 
 
 
 

 

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