FRANKFORT — Jefferson County's attorney said Friday that the warning given to drunken-driving suspects about taking a blood-alcohol test is really an issue of penalties, rather than a constitutional problem.

        Any problems with the warning are “harmless,” County Attorney Irv Maze argued before the Kentucky Supreme Court.

        Defense attorneys in Jefferson County have questioned the warning because they say it misleads first-time offenders into believing their mandatory minimum jail time will double if they refuse to take the test. However, there is no mandatory jail time for first offenders, unless there are aggravating circumstances.

        Attorney Harry B. O'Donnell IV said misleading wording about mandatory jail time influences people to take the test and violates their rights to due process.

        “This is absolute and arbitrary power if you can compel someone to submit to this test despite having given them the warning and saying that they have the option to refuse,” Mr. O'Donnell said.

        The 2000 law enacted by the General Assembly requires the warning be given to DUI suspects before a blood-alcohol test is given.

        Mr. Maze contended that under the implied-consent law, drivers must submit to the test, and consequently there is no denial of any constitutional rights with the warning. A refusal to take the test is an option, not a right, and simply means a different set of penalties, he said.

        “It's hard for me to fathom how somebody could be misled in something they were legally obliged to do,” he said.

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