What constitutes "Operation" for DUI purposes in Kentucky?

Don't sleep and drive! It is not every day that you get a client who is being charged with a DUI while they were sleeping in their vehicle. Now that begs the questions, can you really be guilty of a DUI if the vehicle was not moving and you were unconscious or sleeping, even though you were located in the driver's seat?

Various states across the country have their own definitions for what constitutes person's operation of a motor vehicle for purposes of the DUI statutes. Some states define it as "driving," while others, use terms like "operation," and "actual physical control."

But what about Kentucky? -- Well, I'm glad you asked!

In Kentucky, the DUI statute KRS 189a.010(1) begins as follows: "A person shall not operate or be in physical control of a motor vehicle anywhere in this state[.]" That is quite vague. What do those words mean? Well, unluckily, Kentucky courts have not defined those terms, but what they have done is given us some guidelines as to what constitutes physical control and operation.

The controlling case is Wells v. Commonwealth, 709 S.W.2d 847 (Ky. App. 1986). It outlines the four factors a court must look at in order to determine whether or not a person operated or was in actual physical control of a motor vehicle. The factors are:

(1) whether or not the person in the vehicle was asleep or awake; 
(2) whether or not the motor was running; 
(3) the location of the vehicle and all of the circumstances bearing on how
the vehicle arrived at that location; and 
(4) the intent of the person behind the wheel.

Basically, it is a totality of the circumstances analysis. The court will look at the factors above along with any other facts and circumstances, and determine whether or not that constitutes "operation" or "physical control." 

In my current sleeping driver case, the key was turned to the 'on' position with the engine running and her headlights were on (that's why the officer presumably decided to investigate the scene.) It was a cold February night, and she wanted to stay warm in her vehicle. She was not intoxicated and there were no field sobriety tests done nor does the Commonwealth have an Intoxilyzer result.

So why in the world is she being charged with a DUI?! Good question, dear reader. Results remain to be seen. The facts are great, the argument appears flawless, now it's up to the prosecutor to dismiss the case.

Thanks for readin' and God bless.

If you require assistance with a DUI, expungement, traffic ticket, or other criminal charges, please contact me or call me at (270) 945-2778.

The DUI Guy

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Kentucky DUI Case Put Breathalyzer Burps Under the Microscope

In a DUI case in Kentucky, a judge in the case acquitted a man suspected of DUI because of a burp.

According to the Courier-Journal, a judge found Bertrand Howlett not guilty of DUI because the judge had a personal recollection from his experience as a prosecutor of DUI cases years ago that a burp at the wrong time could skew the results of a Breathalyzer test.

Based on that recollection, Howlett was acquitted of the charge that stemmed from when police pulled him over after, according to officials, he was seen speeding and almost driving off the road. Police said he smelled like booze and that he failed a field sobriety test, and they charged him with DUI.

However, Howlett claimed that he had burped just before his blood alcohol content was tested back at the jail—a test in which he blew a 0.15. That burp, he contended, was enough to skew the results of the test. The judge in the case agreed. Police had not, in the judge’s mind, waited long enough after Howlett’s burp for the test to be accurate.

In testimony, Howlett said that the burp wasn’t a loud one, and that in fact no one may have been able to hear it. The machine used to measure his blood alcohol content stated in the manual that police should observe a suspect for 20 minutes before a test is given, in order to make sure that the only substance tested is air from the lungs.

If the test subject regurgitates, for example, police should wait 20 minutes before proceeding.

The DUI case in Kentucky was without a jury, so the judge was left to decide on the matter. He sided with the idea that the burp had skewed the test results, based on his time as a DUI prosecutor for six years while he was an assistant county attorney.

That decision has since moved to the Supreme Court of the state, not to appeal the DUI case decision, but to question whether a judge can admit as evidence a piece of his or her own knowledge. The county attorney’s office called the judge’s use of his own personal knowledge a “manifest injustice.”

Clearly Howlett wasn’t the only one left with a bad taste in his mouth.

View the original article here

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