Refusal

In Kentucky all motorists are subject to the implied consent law. If you are operating or in physical control of a motor vehicle you are deemed to have given your consent to one or more tests of your blood, breath, or urine for purposes of determining alcohol concentration. A police officer can request that you submit to a test of your blood, breath or urine or all three tests.

The Officer is obligated to tell you at the testing site, at the time a test is requested, that: (1) a refusal may be used against you in court as evidence and will result in revocation of your driver’s license; if you refuse and are subsequently convicted of DUI you will be subject to a mandatory jail sentence which is twice as long as the mandatory jail sentence imposed if you submit to the tests; and if you refuse you will not be able to obtain a hardship license. If you submit to the requested tests, you have the right to a test or tests of your blood performed by a person of your choosing within a reasonable time and at your expense.

The Officer must ask you, “Do you want such a test?” In addition, the Commonwealth must make reasonable efforts to permit you to secure an independent test. You must submit to all requested police chemical tests, except a portable breath test, before you have the right to an independent test.

The consequences of refusing a breath test include immediate loss of your driver’s license at arraignment and the denial of any type of hardship license. With multiple offenders there are some cases where refusing a chemical test may be more beneficial than the consequences of an unfavorable test. As an example, if you are arrested for DUI and have an aggravating factor present, you should probably refuse all chemical tests.

If you subject yourself to the Officer’s test, it may be advantageous to seek an independent test of your blood. Remember, the officers are required to make reasonable efforts in securing an independent test. If these efforts are not made by the Commonwealth, the evidence of the original test could be suppressed.

If you refuse any test, you will be subject to the refusal sanctions of the statute. One case in Kentucky opined that if you refuse to sign a liability release for the hospital to withdraw your blood, you have not refused a test. It is not considered a refusal if the hospital won’t take your blood because you won’t release it from liability.

If arrested for DUI, you now must be afforded an opportunity to attempt to contact a lawyer. The opportunity is for not less than ten minutes or more than 15 minutes during the observation period prior to a breath test or at the hospital prior to blood or urine testing. The inability to contact an attorney during this time period will not excuse you of your obligation to take the Officer’s test.