Can you spend time in jail for diving on a suspended driver's license?

Full Question:

A friend of mine has a DUI pending she has been to court four times now and they have postponed the trial due to a problem with the video evidence.She was on the side of the road with 2 flat tires and no spare.While waiting she opened a beer and an officer pulled up and gave her a breathalizer test and she blew a .08.How long can this keep going on.It seems to me that there can only be so many court apperances before the matter is thrown out. Also there is a driving with a suspended on the same girl but after the DUI. Will she be spending time in jail over the driving on a suspended?
11/19/2007   |   Category: Drivers License   |   State: Kentucky   |   #12542

Answer:

The following are Kentucky statutes:

189A.090. Operating motor vehicle while license is
revoked or suspended for driving under the influence
prohibited — Operating motor vehicle without required
ignition interlock device prohibited — Penalties.

(1) No person shall operate or be in physical control of a
motor vehicle while his license is revoked or suspended under
KRS 189A.010(6), 189A.070, 189A.107, 189A.200, or 189A.220,
or operate or be in physical control of a motor vehicle
without a functioning ignition interlock device in violation
of KRS 189A.345(1).

(2) In addition to any other penalty imposed by the court,
any person who violates subsection (1) of this section shall:

(a) For a first offense within a five (5) year period, be
guilty of a Class B misdemeanor and have his license revoked
by the court for six (6) months, unless at the time of the
offense the person was also operating or in physical control
of a motor vehicle in violation of KRS 189A.010(1)(a), (b),
(c), or (d), in which event he shall be guilty of a Class A
misdemeanor and have his license revoked by the court for a
period of one (1) year;

(b) For a second offense within a five (5) year period, be
guilty of a Class A misdemeanor and have his license revoked
by the court for one (1) year, unless at the time of the
offense the person was also operating or in physical control
of a motor vehicle in violation of KRS 189A.010(1)(a), (b),
(c), or (d), in which event he shall be guilty of a Class D
felony and have his license revoked by the court for a period
of two (2) years; (c) For a third or subsequent offense
within a five (5) year period, be guilty of a Class D felony
and have his license revoked by the court for two (2) years,
unless at the time of the offense the person was also
operating or in physical control of a motor vehicle in
violation of KRS 189A.010(1)(a), (b), (c), or (d), in which
event he shall be guilty of a Class D felony and have his
license revoked by the court for a period of five (5) years.

(3) The five (5) year period under this section shall be
measured in the same manner as in KRS 189A.070.

(4) After one (1) year of the period of revocation provided
for in subsection (2)(b) or (c) of this section has elapsed,
a person whose license has been revoked pursuant to either of
those subsections may move the court to have an ignition
interlock device installed for the remaining portion of the
period of revocation. The court may, upon a written finding
in the record for good cause shown, order an ignition
interlock device installed if the following conditions are
satisfied:

(a) The person shall not operate a motor vehicle or
motorcycle without an ignition interlock device as provided
for in KRS 189A.340(2);

(b) The person shall not operate a motor vehicle or
motorcycle at any other time and for any other purposes than
those specified by the court; and

(c) The ignition interlock device shall be installed on the
motor vehicle or motorcycle for a period of time not less
than the period of revocation required for the person under
subsection (2)(b) or (c) of this section.

(5) Upon a finding of a violation of any of the conditions
specified in subsection (4) of this section or of the order
permitting the installation of an ignition interlock device
in lieu of the remaining period of revocation that is issued
pursuant thereto, the court shall dissolve such an order and
the person shall receive no credit toward the remaining
period of revocation required under subsection (2)(b) or (c)
of this section.

189A.010. Operating motor vehicle with alcohol concentration
of or above 0.08, or of or above 0.02 for persons under age
twenty-one, or while under the influence of alcohol or other
substance which impairs driving ability prohibited —
Admissibility of alcohol concentration test results —
Presumptions — Penalties — Aggravating
circumstances.

(1) A person shall not operate or be in physical control of
a motor vehicle anywhere in this state:

(a) Having an alcohol concentration of 0.08 or more as
measured by a scientifically reliable test or tests of a
sample of the person's breath or blood taken within two (2)
hours of cessation of operation or physical control of a
motor vehicle;

(b) While under the influence of alcohol;

(c) While under the influence of any other substance or
combination of substances which impairs one's driving
ability;

(d) While under the combined influence of alcohol and any
other substance which impairs one's driving ability; or

(e) Having an alcohol concentration of 0.02 or more as
measured by a scientifically reliable test or tests of a
sample of the person's breath or blood taken within two (2)
hours of cessation of operation or physical control of a
motor vehicle, if the person is under the age of twenty-one
(21).

(2) With the exception of the results of the tests
administered pursuant to KRS 189A.103(7), if the sample of
the person's blood or breath that is used to determine the
alcohol concentration thereof was obtained more than two (2)
hours after cessation of operation or physical control of a
motor vehicle, the results of the test or tests shall be
inadmissible as evidence in a prosecution under
subsection (1)(a) or (e) of this section. The results of the
test or tests, however, may be admissible in a prosecution
under subsection (1)(b) or (d) of this section.

(3) In any prosecution for a violation of subsection (1)(b)
or (d) of this section in which the defendant is charged with
having operated or been in physical control of a motor
vehicle while under the influence of alcohol, the alcohol
concentration in the defendant's blood as determined at the
time of making analysis of his blood or breath shall give
rise to the following presumptions:

(a) If there was an alcohol concentration of less than 0.05
based upon the definition of alcohol concentration in
KRS 189A.005, it shall be presumed that the defendant was not
under the influence of alcohol; and

(b) If there was an alcohol concentration of 0.05 or
greater but less than 0.08 based upon the definition of
alcohol concentration in KRS 189A.005, that fact shall not
constitute a presumption that the defendant either was or was
not under the influence of alcohol, but that fact may be
considered, together with other competent evidence, in
determining the guilt or innocence of the defendant.

The provisions of this subsection shall not be construed as
limiting the introduction of any other competent evidence
bearing upon the questions of whether the defendant was under
the influence of alcohol or other substances, in any
prosecution for a violation of subsection (1)(b) or (d) of
this section.

(4) The fact that any person charged with violation of
subsection (1) of this section is legally entitled to use any
substance, including alcohol, shall not constitute a defense
against any charge of violation of subsection (1) of this
section.

(5) Any person who violates the provisions of paragraph (a),
(b), (c), or (d) of subsection (1) of this section shall:

(a) For the first offense within a five (5) year period, be
fined not less than two hundred dollars ($200) nor more than
five hundred dollars ($500), or be imprisoned in the county
jail for not less than forty-eight (48) hours nor more than
thirty (30) days, or both. Following sentencing, the
defendant may apply to the judge for permission to enter a
community labor program for not less than forty-eight (48)
hours nor more than thirty (30) days in lieu of fine or
imprisonment, or both. 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, the mandatory minimum term of
imprisonment shall be four (4) days, which term shall not be
suspended, probated, conditionally discharged, or subject to
any other form of early release.

(b) For the second offense within a five (5) year period,
be fined not less than three hundred fifty dollars ($350) nor
more than five hundred dollars ($500) and shall be imprisoned
in the county jail for not less than seven (7) days nor more
than six (6) months and, in addition to fine and
imprisonment, may be sentenced to community labor for not
less than ten (10) days nor more than six (6) months. If any
of the aggravating circumstances listed in subsection (11) of
this section are present, the mandatory minimum term of
imprisonment shall be fourteen (14) days, which term shall
not be suspended, probated, conditionally discharged, or
subject to any other form of early release.

(c) For a third offense within a five (5) year period, be
fined not less than five hundred dollars ($500) nor more than
one thousand dollars ($1,000) and shall be imprisoned in the
county jail for not less than thirty (30) days nor more than
twelve (12) months and may, in addition to fine and
imprisonment, be sentenced to community labor for not less
than ten (10) days nor more than twelve (12) months. If any
of the aggravating circumstances listed in subsection (11) of
this section are present, the mandatory minimum term of
imprisonment shall be sixty (60) days, which term shall not
be suspended, probated, conditionally discharged, or subject
to any other form of early release.

(d) For a fourth or subsequent offense within a five (5)
year period, be guilty of a Class D felony. If any of the
aggravating circumstances listed in subsection (11) of this
section are present, the mandatory minimum term of
imprisonment shall be two hundred forty (240) days, which
term shall not be suspended, probated, conditionally
discharged, or subject to any other form of release.

(e) For purposes of this subsection, prior offenses shall
include all convictions in this state, and any other state or
jurisdiction, for operating or being in control of a motor
vehicle while under the influence of alcohol or other
substances that impair one's driving ability, or any
combination of alcohol and such substances, or while having
an unlawful alcohol concentration, or driving while
intoxicated, but shall not include convictions for violating
subsection (1)(e) of this section. A court shall receive as
proof of a prior conviction a copy of that conviction,
certified by the court ordering the conviction.

(6) Any person who violates the provisions of
subsection (1)(e) of this section shall have his driving
privilege or operator's license suspended by the court for a
period of no less than thirty (30) days but no longer than
six (6) months, and the person shall be fined no less than
one hundred dollars ($100) and no more than five hundred
dollars ($500), or sentenced to twenty (20) hours of
community service in lieu of a fine. A person subject to the
penalties of this subsection shall not be subject to the
penalties established in subsection (5) of this section or
any other penalty established pursuant to KRS Chapter 189A,
except those established in KRS 189A.040(1).

(7) If the person is under the age of twenty-one (21) and
there was an alcohol concentration of 0.08 or greater based
on the definition of alcohol concentration in KRS 189A.005,
the person shall be subject to the penalties established
pursuant to subsection (5) of this section.

(8) For a second or third offense within a five (5) year
period, the minimum sentence of imprisonment or community
labor shall not be suspended, probated, or subject to
conditional discharge or other form of early release. For a
fourth or subsequent offense under this section, the minimum
term of imprisonment shall be one hundred twenty (120) days,
and this term shall not be suspended, probated, or subject to
conditional discharge or other form of early release. For a
second or subsequent offense, at least forty-eight (48) hours
of the mandatory sentence shall be served consecutively.

(9) When sentencing persons under subsection (5)(a) of this
section, at least one (1) of the penalties shall be assessed
and that penalty shall not be suspended, probated, or subject
to conditional discharge or other form of early release.

(10) In determining the five (5) year period under this
section, the period shall be measured from the dates on which
the offenses occurred for which the judgments of conviction
were entered.

(11) For purposes of this section, aggravating
circumstances are any one (1) or more of the following:

(a) Operating a motor vehicle in excess of thirty (30)
miles per hour above the speed limit;

(b) Operating a motor vehicle in the wrong direction on a
limited access highway;

(c) Operating a motor vehicle that causes an accident
resulting in death or serious physical injury as defined in
KRS 500.080;

(d) Operating a motor vehicle while the alcohol
concentration in the operator's blood or breath is 0.18 or
more as measured by a test or tests of a sample of the
operator's blood or breath taken within two (2) hours of
cessation of operation of the motor vehicle;

(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; and

(f) Operating a motor vehicle that is transporting a
passenger under the age of twelve (12) years old.

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