By:  Erica F. Blankenship


When you are stopped by police under suspicion for driving under the influence (DUI), one of the main questions you will need to consider is whether to consent to a breathalyzer test. A breathalyzer is a device officers use that calculates blood alcohol concentration (BAC) from your breath. The presumptive legal BAC level for persons over 21 in Kentucky is 0.08. Anything above that level is presumed to be “under the influence.” There are very specific test procedures the officers must follow for breathalyzer test results to be usable. You may also hear officers refer to this test as an “Intoxilyzer,” which is the specific brand name of a breathalyzer device.

You have the option of refusing to take a breathalyzer test. For some people, refusal is the best option, but there are many factors to keep in mind:

• If you refuse a breathalyzer test requested by police officers with reasonable grounds to request it, your license is automatically suspended – even before you go to Court.
• A refusal is considered an “aggravator” which enhances penalties for a DUI conviction. However, there are many other aggravators as well, such as a very high BAC, or DUI with a minor in the vehicle, among others.
o Interestingly, however, Kentucky has specifically legislated that a refusal is not an aggravator on a first-time DUI, only second or later DUI offenses.
o Thus, if you have never been convicted of a DUI offense before, and refuse a breathalyzer test, this will not be considered an aggravator for this first-time DUI.
• As police officers have seen more and more DUIs as the result of drugs, rather than alcohol, they often request blood tests rather than breathalyzers. Breathalyzers can only show the presence of alcohol, not other drugs. You have the right to refuse a blood test. However, you do not have the right to pick whichever test you want.
o For example, if the officer requests a blood test, and you refuse but offer to take a breathalyzer, that is still considered a refusal.

As a reminder, a second-time DUI carries penalties of 7 to 180 days in jail and a fine of $350 to $500. If an aggravating circumstance is present – like a refusal – those penalties are enhanced. With an aggravator for a second-time DUI, you must serve at least 14 days in jail and those days are not allowed to be probated or conditionally discharged in any way.

If an officer asks you to take a breathalyzer or blood test, Kentucky law provides that you have the right to call an attorney to ask for advice. K.R.S. § 189A.105(3). If you need assistance deciding what your best course of action is, attorneys at our law firm are here to help! Please call us for more information.

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