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Can I be convicted of a DUI for this? And How can I get my license reinstated?

Barbourville, KY |

I was pulled over and arrested a few weeks ago for DUI 2nd offense. The only thing I had taken was an over the counter male enhancement capsule which I had never tried before. The officer said I failed some of the sobriety tests and said my eyes were fluttering. I did take a blood test. The only other substance that should be in my system is Hydrocodone for my severe hemmoroids. I have a prescription for this but it is probably about a year to a year and a half old. The judge also said he had to suspend my license pending the 2nd DUI offense and I have only been to court once. Can I talk to the judge and tell him what I took? Can they convict me of this? The previous DUI is about 3 years old.

Attorney Answers 5

Posted

DUI Second Offense in 5 years is a serious misdemeanor offense in KY. You need to hire an experienced criminal defense attorney in your area ASAP. www.kacdl.net

The judge can pretrial suspend your license at arraignment based on it being a second offense. You are exposed to jail time, probated/conditional jail time for 2 years, fines and court costs, loss of drivers license, potential cancellation of your insurance and increased auto insurance rates in the future. You'll have to go to a 52 week DOT school if convicted of a second offense and pay the fees and a $40.00 reinstatement fee to get your license back.

You do not need to be speaking to a judge without your attorney agreeing ahead of time. I submit your attorney will advise you NOT to talk to the judge. That's why you need legal counsel.

The DUI statute is reproduced below:

Kentucky Revised Statutes

Title 16. MOTOR VEHICLES

Chapter 189A. DRIVING UNDER THE INFLUENCE

Current through 2014 Ky. Acts ch. 4


§ 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, a controlled substance, 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;

I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..

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Frank Mascagni III

Frank Mascagni III

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(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) (k) Methadone; (l) Methamphetamine; (m) Oxycodone; (n) Promethazine; (o) Propoxyphene; and (p) Zolpidem. Cite as KRS 189A.010 History. Effective: July 15, 2010 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.

Frank Mascagni III

Frank Mascagni III

Posted

(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.

Frank Mascagni III

Frank Mascagni III

Posted

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.

Frank Mascagni III

Frank Mascagni III

Posted

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.

Frank Mascagni III

Frank Mascagni III

Posted

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;

Frank Mascagni III

Frank Mascagni III

Posted

Sorry, some of the sections were to large to reproduce in the space limitations and one was included out of sequence. Please read them all in correct order.

Posted

You have a serious matter. I suggest your contact an experienced DUI attorney in your area for assistance. Good luck.

This is not intended as legal advice. No attorney / client relationship exists because of this response.

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Yes, you could be convicted. No, you should not make any statements to the judge. Only speak to a criminal defense attorney experienced in DUIs, and do this immediately.

The information provided in this answer does not create an attorney-client relationship and is not considered to be legal advice.

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Posted

Yes, you can be convicted. There are many prescriptions which impair your ability to drive. The fact that the Rx is 1.5 years old is also a problem and most prosecutors and judges will consider it to be BS. You need to hire a good DUI attorney. Based on just what you said, there is nothing "open and shut" about your case. There is possibility of conviction as well as possibility of acquittal. Retain counsel asap.

Kentucky law does not certify specialty of practice in this area. The advice given herein is informational and should not be considered as creating an attorney/client relationship. Michael Bouldin is an independent attorney located in Northern Kentucky. It is strongly recommended to not give any confidential information on any website.

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The Kentucky DUI statute deals with operating under the influence of "any impairing substance." You are presumed innocent,which means that the County Attorney must prove that you were operating your vehicle while under the influence of either the hydrocodone or the male enhancement pill. The statute requires suspension while the case is ongoing, since you are accused of your second DUI within the past five years. You can be convicted, but it is a fact question for a jury, if it is a jury trial, or a judge, if a bench trial. The question to be proven by the County Attorney: were you under the influence of an impairing substance while operating your motor vehicle? You should hire an experience criminal defense attorney immediately. This is not a clear case for you or the County Attorney.

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