Kentucky's new drunken driving law may contain a flaw that allows first-time offenders to avoid jail time.

        Lawmakers who sponsored the bill, which became law Oct. 1 and lowered the legal blood-alcohol level from 0.10 to 0.08, wanted first-time offenders who refused to take a breath test to be jailed for four days.

        But Rep. Kathy Stein, a Lexington Democrat, who sponsored that provision of the law, said the General Assembly effectively removed the jail time requirement through an editing mistake made while adding amendments to the bill last winter.

        The word “while” may be the get-out-of-jail-free card that defense attorneys need.

        The law details six aggravating factors — aspects of a DUI arrest that elevate the severity of the crime — but lists them as having to happen “while” the offense is occurring, said Harry Hellings Jr., a Covington attorney.

        Refusing to take a breath test, one aggravating factor, cannot occur while someone is driving a vehicle, Mr. Hellings said.

        Therefore, as the law is applied at the roadside, drivers who refuse to take a breathtest cannot have their level of intoxication measured and cannot be cited for violating an aggravating factor.

        If they can't be proven to have a blood-alcohol level of at least 0.08, they can't be convicted of DUI.

        “They should have written it more clearly,” Mr. Hellings said.

        But one of the sponsors, along with a Kenton County judge who helped write it and a widely known Northern Kentucky defense attorney, said the law does accomplish its intended purpose.

        Martin Sheehan, a Kenton County judge, was an author on the new DUI bill, specifically the part in question.

        “We caught that mistake in time,” the judge said. “It was a tactical move on the sponsor's part.”

        Judge Sheehan said the sponsors thought the bill should go ahead with the mistake in it, or lose the bill until another legislative session.

        “I don't think there was a deliberate attempt,” he said. “Get what you can now and get the rest later.”

        A bill sponsor, Rep. Rob Wilkey, 22nd district, disagrees with the judge's analysis of his motives.

        “That's not true. We didn't have this discussion,” he said. Judge Sheehan is “not in the legislature. We listened to him. He gave us suggestions and some we incorporated.”

        “It was drafted the way we asked,” he continued. “It does exactly what we want it to do.”

        Judge Sheehan has disagreed publicly in the past with certain aspects taking away a person's right not to incriminate himself — “the right to remain silent” clause in the familiar Miranda rights.

        “Because you exercise that right, you'll spend four days in jail,” the judge said.

        “I'm not prepared to tell you how I'll rule,” he said. “It is an issue that'll clearly be litigated. Certainly the constitutionality will be tested in the courts.”

        Judge Sheehan said he agrees with the officer's need to collect evidence in a DUI case. Refusing a breath test, he said, would make a prosecutor's job difficult.

        “You're withholding evidence you should have to give up,” he said.

        The component could have consequences statewide. More than 3,700 Kentuckians refused to take a blood-alcohol test last year after a DUI arrest. About 73 percent of DUI arrests are first offenses.

        Mothers Against Drunk Driving of Kentucky pushed for the new law, sitting in legislative committee meetings and watching the House and Senate votes from the galleries.

        MADD felt strongly about the need for jail when drivers refuse to take a test, said Janey Fair, a spokeswoman. Ms. Fair said the part in question came as a compromise.

        “That was put in and we didn't have a chance to see it,” she said. “I think the prosecutors are going to be upset about this.”

        Under the new DUI law, a driver is presumed drunk if his blood-alcohol concentration is 0.08. Without a specific number to show the jury, prosecutors must rely on other evidence to prove their cases, such as a police officer's testimony and field-sobriety tests.

        Mr. Hellings said Kenton County judges are interpreting the law as written and are not giving jail sentences to those who refuse breath tests.

        “If you look at it, I think the language is real clear,” he said. “It's the damndest thing I've ever seen.”

        Hastiness contributed to the error, Mr. Hellings said.

        “This is a law that was rammed down the throat by the federal government,” he said.

        Some prosecutors say they won't challenge the error.

        “This is a mistake, but we have to follow the law as it's written,” said Bryan West, assistant director of prosecution at the Fayette County Attorney's Office.

        Breath-test refusals won't go entirely unpunished, though. Part of the old DUI law that stays in effect requires a temporary driver's license suspension for people who refuse to take the test.

       The Associated Press contributed.
       

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