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Commonwealth v. Hernandez-Gonzalez2/21/2002
PETITION FOR REHEARING, GRANTING PETITION FOR MODIFICATION DENIED AS MODIFIED: MAY 16, 2002
TO BE PUBLISHED
CERTIFICATION OF THE LAW BY JUSTICE GRAVES
Respondent, Fernando Hernandez-Gonzalez, was arrested for first offense driving under the influence . KRS 189A.O1O(1)(a). The Jefferson District Court suppressed the results of the blood alcohol test and found Respondent not guilty of DUI, but guilty of reckless driving. The district court concluded that the statutorily required warning required by KRS 189A. 105 is inaccurate since a person convicted of first offense DUI may receive only a fine and no mandatory jail time. Thus, the implied consent warning does not apply to all first-time offenders. In accordance with Kentucky Constitution § 115 and CR 76.37(10), the Commonwealth filed a motion for certification of the law. We granted the request for certification of the following question:
s the Implied Consent Warning read to the Defendant and contained in KRS 189A. 105 defective on its face; and, if so does the defect unconstitutionally coerce the Defendant into submitting to a blood alcohol test under KRS 189A.103, in violation of Defendant's right to due process of law under both the Federal and Kentucky Constitutions?
KRS 189A.105(2)(a) states that prior to the administration of a test for alcohol concentration in the blood the person shall be informed:
That, if the person refuses to submit to such tests, the fact of refusal may be used against him in court as evidence of violation of KRS 189A.010 and will result in revocation of his driver's license, and if the person is subsequently convicted of violating KRS 189A.01 O(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests
The penalties for a first offense of driving under the influence are set forth in KRS 189A.01 O(5):
(a) For the first offense within a five (5) year period, [a person shall] 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. . . . 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.
Therefore, under the provisions of KRS 189A.010(5), a trial court shall impose a monetary fine or imprisonment of not less than 48 hours in the county jail, or both a fine and imprisonment for conviction of a first-offense DUI. That is, in the absence of an aggravating circumstance there is no requirement of mandatory jail time. For second, third, and fourth offense DUI's, however, both a fine and imprisonment in the county jail are mandated. KRS 189A.O10(5)(b)-(d). The Jefferson District Court concluded that because a first time DUI offender may not necessarily be subject to mandatory jail time, warning the person that failure to consent to a blood alcohol concentration test will result in a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the test is unconstitutional in that ;f essentially coerces the person to submit to the test. We disagree.
Pursuant to the 2000 legislative amendments, KRS 189A.103(1) provides that every person who operates or is in physical control of a vehicle in the Commonwealth "
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