Refusing a blood, breath, or urine test during a DUI arrest is surprisingly not an aggravator, as long as it is your 1st offense.


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Kentucky’s DUI statute states that “aggravating circumstances are any one (1) of the following: (e) Refusing to submit to any test or tests of one’s blood, breath, or urine requested by an officer having reasonable grounds to believe the person was operating or in physical control of a motor vehicle in violation of subsection (1) of this section;” KRS 189A.010(11)(e). Now this section by itself would seem to imply that refusing a blood, breath, or urine test would result in an aggravated DUI, but this is a lesson in looking at the entire law, not just one section.
 
Earlier in the statute it states that for a 1st offense “If any of the aggravating circumstances listed in subsection (11) of this section are present while the person was operating or in physical control of a motor vehicle…” KRS 189A.010(5)(a). (emphasis added).  Surprisingly, the next three sections that describe 2nd-4th offenses does not include the section requiring that the aggravator be present while the person is operating the motor vehicle.  Which is why the Kentucky Supreme Court in Commonwealth v. Gaitherwright, 70 S.W.3d 411, 412 (Ky. 2002), ruled that “first time DUI offenders cannot be subjected to enhanced penalties for the refusal to submit to testing because such could not occur simultaneously with operating the motor vehicle.” Commonwealth v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002).
 
This is crucial because an aggravator doubles the minimum jail time that a defendant faces. It is important to remember that even though it is not an aggravator on a 1st Offense, refusing to take the test will result in a pretrial driver’s license suspension. This is why you need an experienced criminal defense attorney reviewing your DUI charges. Police officers regularly charge DUI 1st Offenses as aggravated. An experienced criminal lawyer can fight to protect you from that aggravator and the required additional jail time.
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