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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

  1. 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.

    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


    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..

  2. 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.

  3. 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.

  4. 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.

  5. 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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