A Person Arrested For DUI In Kentucky Must Be Given Opportunity To Contact An Attorney Prior To Submitting To A Breathalyzer Test

When a person is arrested for driving under the influence (DUI) in Kentucky there is a list of instructions and warnings that the suspected drunk driver must be informed about prior to the administration of a breath, blood, or urine test.  The list of information that is required to be given is found in section 189A.105 of the Kentucky Statutes.  One of the lesser known requirements is found in sub section 3, regarding the opportunity to attempt to contact and communicate with an attorney prior to the test.  The pertinent part of the statute reads:

“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.”

In the case of Ferguson v. Commonwealth, 362 S.W.3d 341, a driver was arrested for DUI after being stopped for not having any tail lights.   The arresting officer, in this case a State Trooper, transported the driver to the county detention center.  Upon arriving at the detention center, the driver was taken to a room containing a breathalyzer machine.   A deputy jailer confiscated the driver’s wireless (cell) phone.

The Trooper then read the driver her rights under the Kentucky implied consent laws. It was at this point that the driver was first informed of her right under KRS 189A.105(3) to an opportunity to attempt to contact and communicate with an attorney during the ten to fifteen minutes immediately preceding the administration of the breathalyzer test.  After being advised of this right, the driver requested to speak with her attorney prior to submitting to the breathalyzer test.

The driver had an attorney who had instructed her to call any time she had a problem. She requested to contact said attorney. However, the attorney only used a cell phone as opposed to a land-line and also she had her attorney’s cell number stored in her cell phone that had been confiscated. The driver requested access to her cell phone to call her attorney but the deputy jailer prohibited such use because of a jail policy against detainees’ use of cell phones.

The arrested driver was then provided access to a collect-call only telephone on the wall of the jail.  She attempted to use the telephone to call her attorney but failed because she could not collect-call her attorney’s cell phone. Without the advice and guidance of her attorney, the arrested driver submitted to the breathalyzer test and produced a result of 0.092.  Her attorney later tried to suppress the breathalyzer and have the test results kicked out of court because she was not permitted to contact her attorney via her cell phone.  The trial judge refused to suppress the breath test.

Because of the evidence of the the breathalyzer, the driver was put in a position, with the assistance of her attorney, to enter a conditional guilty plea.  The conditional plea permitted her to appeal the court’s decision.  She then appealed the decision the judge made to allow the breath test to be used as evidence against her.

The driver won her appeal and the appellate court stated that in order to exercise the right contained in KRS 189A.105(3),  the arrested driver required access to her attorney’s phone number contained on her cell phone and should have been given the opportunity to retrieve the number and provided a telephone to contact her attorney. Therefore, the arrested driver’s right contained in KRS 189A.105(3) was violated when, based on the totality of the circumstances, she was not provided with the means capable of contacting her attorney.

Do not try to take on the criminal justice system by yourself.  Invoke your rights and always ask to speak to an attorney.  To make your life easier, keep the name and number of your attorney readily available.

In  Northern Kentucky , you may contact Attorney Ken Turner anytime at (859)432-3733,  (859)432-FREE, if i am not in my office, my number gets forwarded to a personal cell phone.