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Supreme Court of Kentucky rules against BAC validity in delayed testing

The Kentucky Supreme Court unanimously overturned the 2003 DUI conviction of Nelson Lopez of Lexington, writing prosecutors were wrong to argue it doesn’t matter what a suspect’s BAC level is while operating the vehicle, as long as the BAC measured above the legal limit of 0.08 within two hours of operating a vehicle. Lopez was charged with DUI in October 2002 and recorded a 0.08 BAC one hour after his arrest.

The ruling mirrors the Virginia statute which states a defendant may present evidence or argue without evidence that his or her BAC level at the police precinct was higher than that at the scene.

Lopez’s attorney, Fred Peters, said the prosecutorial version could unfairly convict an innocent motorist who had consumed no alcohol before driving. He posed the scenario of a motorist having a drink in a broken down vehicle while waiting for the tow truck.

Supreme Court Ruling Helps Protect the Innocent

Peters also argued it can take alcohol up to 90 minutes to enter the bloodstream, even though he presented no supporting evidence at trial.

Fayette County (Ky.) Prosecutor Margaret Kannensohn said the ruling creates confusion in that it prohibits them from arguing a third of the jury instructions in DUI cases.” It would be as if a soldier were given three bullets with instructions to fire them," she said, "then told that they had wrongly fired the third bullet, which leads to confusion." She said she hopes the General Assembly clarifies the ruling.

Meanwhile, Mothers Against Drunk Driving (MADD) is concerned. "When the public believes or perceives that DUI laws don't have teeth, it breeds disdain for the law," said Angela Leigh, MADD state executive director.