Breathalyzer Refusal

Refusing the Breathalyzer machine, typically the Intoxilyzer 5000EN in the Commonwealth of Kentucky, at the police officer’s station can have serious consequences for your driving privileges. Driving in Kentucky is a privilegenot right and it can be revoked if you fail to follow the implied consent law. If you fail to take a Breathalyzer test, your license will be suspended.

I have written a blog post in which I discuss (and personally recommend) refusing the Breathalyzer and Field Sobriety Tests despite the harsh ramifications of doing so.

The driver license suspension periods are as follows:

  • DUI 1st Offense: 30 to 120 Days
  • DUI 2nd Offense: 12 to 18 Months
  • DUI 3rd Offense: 24 to 36 Months
  • DUI 4th Offense or subsequent: 60 Months

Furthermore, per KRS 189A.105(2)(a)(1), if you refuse to submit to the blood, breath, or urine tests, the effects are as follows:

  1. The refusal may be used against you in court as evidence of violating KRS 189A.010;
  2. Your driver’s license will be suspended until the resolution of your case (see above);
  3. If you refuse the tests and are subsequently convicted of DUI, you will be subjected to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if you submit to the tests (which is 4 days instead of 2 for a first offense) – however, the a refusal on a first offense DUI will not count as aggravated for purposes of a double mandatory minimum jail sentence, see Commonwealth v. Gaitherwright, 70 S.W.3d 411 (Ky. 2002); and
  4. You will be unable to obtain a hardship license after serving the mandatory minimum license suspension.

It is a crime in the Commonwealth of Kentucky to operate a motor vehicle without a valid operator’s license. See KRS 186.620. Furthermore, it is a crime to operate a motor vehicle while the license is suspended or revoked. See KRS 189A.090.

Special Note: Refusing the Preliminary Breath Test (PBT) has no consequences as it is not admissible in Court. See KRS 189A.100(1) and KRS 189A.104(2). The PBT is also not subject to refusal or enhancement penalties. See KRS 189A.104(1).

If you are at risk of having your license suspended, you need competent and experienced counsel to help you fight your DUI case in court. Do not delay, call the DUI Guy today.


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