What are aggravating circumstances in a DUI case?
In Kentucky there are a number of factors that can make the penalties for a DUI more severe than they would be otherwise. These "aggravating circumstances" can increase the minimum sentence in a DUI case and make it impossible to get a hardship license. The following is a brief guide to aggravating circumstances, but be aware that this reflects the law in Kentucky, and other states may have different laws.
What are aggravating circumstances?
A DUI is aggravated if a person is convicted of DUI and any one or more of the following circumstances was present at the time of the DUI:
- Operating a motor vehicle in excess of 30 miles per hour above the speed limit;
- Operating a motor vehicle in the wrong direction on a limited access highway;
- Operating a motor vehicle that causes an accident resulting in death or serious physical injury;
- Operating a motor vehicle while the alcohol concentration in the operator's blood or breath is 0.15 or more as measured by a test or tests taken within two hours of operating the motor vehicle;
- Refusing to submit to any test or tests of the operator's blood, breath, or urine requested by an officer having reasonable grounds to believe the person was DUI (but see the notes below).
- Operating a motor vehicle that is transporting a passenger under the age of twelve (12) years old.
Some important points about refusals
Refusals are not an aggravating circumstance in first-offense DUI cases. This is not expressly set out in the DUI statute, nor do officers explain it before asking for a test. In many cases, it is in the driver's best interest to refuse. For instance, in a first offense DUI it may be a good idea to refuse if the sample would be above a .15 - taking the test will lead to an aggravated DUI, but refusing won't. Furthermore, it is only an aggravating circumstance if the test that is refused is a breath, blood, or urine test offered at the hospital, jail, police department, or other test site - refusing tests on the side of the road is not an aggravating circumstance.
What are the consequences of aggravating circumstances?
For first offense DUIs, there is no mandatory jail sentence - unless the DUI is aggravated. In many counties, prosecutors do not ask for jail time for first offense DUIs. On the other hand, aggravated first offense DUIs carry a mandatory minimum of four days in jail. With that being said, refusals have other consequences - they result in pretrial suspension of the driver's license, and can prevent the driver form getting an Ignition Interlock Device. For second and subsequent DUIs, aggravating circumstance double the mandatory minimum jail sentence. Aggravating circumstances can also prevent you from getting a hardship license, and in some cases they will result in a mandatory Ignition Interlock Device even after your license suspension is over.
What should you do if you are charged with an aggravated DUI?
Talk to a lawyer. Many DUIs are charged as aggravated DUIs, when in fact they are not. In particular, many first offense DUIs are charged as aggravated DUIs if the driver refused. These should not be charged as aggravated DUIs, and experienced DUI lawyers can make sure they are amended to non-aggravated DUIs. The reality is that the consequences of a DUI - whether it is aggravated or not - are so severe that no one should plead guilty to one without consulting a lawyer. If you are charged with a DUI, or have questions about DUI law, feel free to contact an attorney at Edwards and Kautz at 866-795-5087.