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Drinking and Not driving under the influence...can you still go to jail??

Stanton, KY |

I was recently informed that in Kentucky you can be arrested for being drunk if you are the passenger riding in a car! Is this correct information? I'm fairly new to this state and have never heard of such a thing!! Isn't that the point of having a sober DD?!

Attorney Answers 5


  1. This is an interesting question. I am not licensed in Kentucky, but I will give you Nevada's view on this topic, which is likely similar. The two elements of DUI are: 1. Being in actual physical control of a motor vehicle; while 2. Being under the influence of a controlled substance.

    There is US Supreme Court case law that give examples of situations where the person is considered in actual physical control where you might not think. For instance, if you are passed out behind the wheel in a parking lot with the engine running, you are in actual physical control. If you are sleeping on the bench seat of a pickup without the engine running, it is possibly actual physical control. Sleeping in the back seat of a car is a grey area.

    Under Nevada law, it is unlikely that you would be in actual physical control of the motor vehicle if you are the passenger and there is a driver in the driver's seat.

    DUI law gets broader and broader all the time. If you look at the evolution of the law, lobbying efforts from groups like MADD have caused legislatures to change DUI law to encompass more and more actions.

    Interesting question...


  2. I have had clients arrested for Alcohol Intoxication as a passenger in a vehicle (usually when the driver is arrested for DUI and often when the passenger has been disorderly) or as a patron in a taxi (again, usually after being disorderly). Here is the AI statute:

    KRS 222.202 Offenses of alcohol intoxication or drinking alcoholic beverages in a public place.

    (1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.

    (2) A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room.

    Kristin M. Russell is an attorney licensed to practice law in the Commonwealth of Kentucky. Per Avvo guidelines, these answers are for informational purposes only and do not constitute legal advice. This response does not create an attorney/client relationship.


  3. Yes, you can be arrested/cited for PI (Public Intoxication) or AI (Alcohol Intoxication) for being intoxicated in a motor vehicle as a passenger. If a minor, for Possession of Alcohol by a Minor, as well. The AI statute is:
    ========================================================================
    Kentucky Revised Statutes

    Title 18. PUBLIC HEALTH

    Chapter 222. KENTUCKY ALCOHOL AND OTHER DRUG ABUSE PREVENTION, INTERVENTION, AND TREATMENT LAW

    Current through 2013 Ky. Acts ch. 9

    § 222.202. Offenses of alcohol intoxication or drinking alcoholic beverages in a public place

    (1) A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
    (2) A person is guilty of drinking alcoholic beverages in a public place when he drinks an alcoholic beverage in a public place, or in or upon any passenger coach, or other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, or waiting room.

    Cite as KRS 222.202

    History. Created 1986 Ky. Acts ch. 336, sec. 2, effective July 1, 1986.
    ==========================================================================
    Penalty Section, KRS 222.990 (3) and (4):
    (3) A person guilty of alcohol intoxication, or drinking alcoholic beverages in a public place shall, for a first or second offense be fined not less than twenty-five dollars ($25).
    (4) A person guilty of alcohol intoxication, or drinking alcoholic beverages in a public place, shall for a third or subsequent offense within a twelve (12) month period be fined not less than twenty-five dollars ($25) nor more than one hundred dollars ($100), or be imprisoned in the county jail for not less than five (5) nor more than ninety (90) days, or both. Subsequent offenses not within the twelve (12) month proscription of this section shall be dealt with under subsection (3) of this section.

    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..


  4. I would note that a reading of the statutes provided in the other answers shows that it is illegal to be intoxicated in public, but the AI statute state only that it is illegal to drink alcoholic beverages in a vehicle. I am not sure that it is illegal to be intoxicated in a motor vehicle unless you are the operator of the vehicle. I believe there is an argument to be made that an intoxicated passenger who is not currently drinking is not violating the law. The statute does not include a motor vehicle as a public place as it uses "or."

    The answer provided here does not create an attorney-client relationship. This answer is for general informational purposes only and should not be considered a substitute for retaining an attorney who can investigate and analyze all the material facts of your situation.


  5. You can be charged with AI (alcohol intoxication) which is similar to Public Intox. Being in a vehicle is a public place. To be convicted of AI, you have to be a danger to yourself or others. A passed out person is not a danger.

    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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