189A.105 Effect of refusal to submit to tests -- Information required to be provided
926 words·~4 min read·
/ky/189a-105A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
when tests requested -- Court-ordered testing -- Withdrawal of blood sample --
Right to consult attorney before submitting to tests -- Personal testing option.
(1)A person's refusal to submit to tests under KRS 189A.103 shall result in suspension
of his or her driving privilege as provided in this chapter.
(a)At the time a breath, blood, or urine test is requested, the person shall be
informed:
1. That, if the person refuses to submit to such tests:
a. The fact of this refusal may be used against him or her in court as
evidence of violating KRS 189A.010 and will result in suspension
of his or her driver's license by the court at the time of
arraignment; and
b. Is subsequently convicted of violating KRS 189A.010(1):
i. For a second or third time within a ten
(10)year period, he or
she will be subject to a mandatory minimum jail sentence
which is twice as long as the mandatory minimum jail
sentence imposed if he or she submits to the tests; and
ii. His or her license will be suspended by the Transportation
Cabinet;
2. That, if a test is taken:
a. The results of the test may be used against the person in court as
evidence of violating KRS 189A.010(1); and
b. The person has the right to have a test or tests of his or her blood
performed by a person of his or her choosing described in KRS
189A.103 within a reasonable time of his or her arrest at the
expense of the person arrested; and
3. That although his or her license will be suspended, he or she may be
eligible immediately for an ignition interlock license allowing him or
her to drive during the period of suspension and, if he or she is
convicted, he or she will receive a credit toward any other ignition
interlock requirement arising from this arrest.
(b)Nothing in this subsection shall be construed to prohibit a judge of a court of
competent jurisdiction from issuing a search warrant or other court order
requiring a blood or urine test, or a combination thereof, of a defendant
charged with a violation of KRS 189A.010, or other statutory violation arising
from the incident. However, if the incident involves a motor vehicle accident
in which there was a fatality, the investigating peace officer shall seek such a
search warrant for blood testing unless the testing has already been done by
consent. If testing done pursuant to a warrant reveals the presence of alcohol
or any other substance that impaired the driving ability of a person who is
charged and convicted of a violation of KRS 189A.010(1), the sentencing
court shall require, in addition to any other sentencing provision, that the
defendant make restitution to the state for the cost of the testing.
(c)1. When directed by a peace officer pursuant to a search warrant or other
court order issued under this subsection, a qualified medical professional
shall withdraw the sample of blood as soon as practicable and shall
deliver the sample to the requesting peace officer, or other peace officer
as directed by the requesting peace officer, provided that the collection
of the sample does not jeopardize the person's life, cause serious injury
to the person, or seriously impede the person's medical assessment, care,
or treatment.
2. The qualified medical professional authorized to withdraw the blood
sample and the medical care facility where the blood sample is drawn
shall be considered as acting in good faith once presented with a search
warrant or other court order issued under this subsection. The qualified
medical professional shall not require the person that is the subject of
the test or tests to provide any additional consent.
3. A qualified medical professional who administers any test under this
paragraph upon the request of a peace officer, and a medical care facility
where any test under this paragraph may be performed, shall not be
criminally liable solely for administering the requested test or civilly
liable for damages to the person tested solely for administering the
requested test except in cases of gross negligence or willful or wanton
misconduct.
(3)During the period immediately preceding the administration of any test, the person
shall be afforded an opportunity of at least ten
(10)minutes but not more than
fifteen
(15)minutes to attempt to contact and communicate with an attorney and
shall be informed of this right. Inability to communicate with an attorney during
this period shall not be deemed to relieve the person of his or her obligation to
submit to the tests and the penalties specified by KRS 189A.010 and 189A.107
shall remain applicable to the person upon refusal. Nothing in this section shall be
deemed to create a right to have an attorney present during the administration of the
tests, but the person's attorney may be present if the attorney can physically appear
at the location where the test is to be administered within the time period
established in this section.
(4)Immediately following the administration of the final test requested by the officer,
the person shall again be informed of his or her right to have a test or tests of his or
her blood performed by a person of his or her choosing described in KRS 189A.103
within a reasonable time of his or her arrest at the expense of the person arrested.
He or she shall then be asked "Do you want such a test?" The officer shall make
reasonable efforts to provide transportation to the tests.