Did a 0.151 percent alcohol test require a four-hour DUI hold in Kentucky in 1994?

Plain-English summary

In 1994, Kentucky's Attorney General said a blood-alcohol reading of .151 percent was "above .15 percent" under KRS 189A.110. For a person arrested for the DUI offense identified in the statute, that result triggered at least four hours of custody following arrest. The AG rejected the view that the minimum triggering reading was .16 percent simply because older testing equipment displayed only hundredths.

The opinion treated .15 and .150 as the same number. Adding a further digit did not change the meaning of "above": .151 remained greater than .150. It cited a Kentucky Supreme Court decision interpreting "over 18" by ordinary numerical meaning as an analogy.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

County jailers

The AG answered a jailer's question about a newer alcohol-testing machine that showed results to the thousandth of a percent. It said a .151 percent result triggered the four-hour custody period under the statute as then worded. The law did not round that result down or wait until .16 percent.

Officers and courts

The quoted statute applied to a person arrested for a violation of KRS 189A.010 whose blood-alcohol test was above .15 percent. The AG read that threshold literally and said any amount over .15 brought KRS 189A.110 into play for detention of at least four hours following arrest.

Common questions

Was .151 percent above .15 percent for the 1994 hold rule?

Yes. The AG said .15 and .150 were equal, so .151 was above both and triggered the statutory hold.

Did the reading have to reach .16 percent?

No. The AG expressly rejected .16 as the minimum result that triggered KRS 189A.110.

Why did newer machines matter to the jailer's question?

The requester said older breathalyzer machines reported hundredths while newer machines reported thousandths. The AG said the statute's wording did not depend on that equipment difference.

Background and statutory framework

The Daviess County Jailer asked whether a person with a .151 percent reading could be released before the four-hour period because jailers had been trained to use .16 as the trigger. The AG quoted KRS 189A.110's "above .15 percent" language for a DUI arrest under KRS 189A.010 and applied its ordinary numerical meaning. It invoked Garrett v. Commonwealth, Ky., 675 S.W.2d 1 (1984), as an analogy about the meaning of "over" in a separate criminal statute.

Citations and references

• KRS 189A.110: four-hour custody provision interpreted in the opinion.
• KRS 189A.010: DUI arrest offense named in the quoted provision.
• KRS 532.080: statute discussed only through the age-threshold analogy.
• Garrett v. Commonwealth, Ky., 675 S.W.2d 1 (1984): Kentucky Supreme Court decision cited for the ordinary meaning of "over."

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG94-019.htm

Original opinion text

OAG 94-19

March 21, 1994

Harold N. Taylor

Daviess County Jailer

Daviess County Detention Center

110 St. Elizabeth Street

Owensboro, Kentucky 42301-0782

Dear Mr. Taylor:

In your letter to this office dated March 4, 1994, you state as follows:

In 1984, the legislators enacted a law 189A.110 that quotes "Any person who is arrested for a violation of KRS 189A.010 and who, upon blood alcohol testing, shows a blood alcohol reading above .15 percent shall be detained in custody at least four (4) hours following his arrest." That law, along with other laws related to when a person may be presumed guilty, guilty with other evidence, or not guilty of DUI, the breathalyzer machines only read the blood alcohol content in the hundredth percent. Currently, the new BA machines read in the thousandth percent.

The jailers have been trained and are under the interpretation that if a person reads .16 or higher, that they can not be released for four hours. The question is, if a person tests .151, do they have to be held for the four hour period, or can we assume, since the legislature only had knowledge that the machine was capable of carrying out this percentage to the nearest hundredth, that they can be released.

To answer your question we first note that a court has the duty to construe statutes literally if it is reasonably possible to do so. ITT Commercial Finance Corp. v. Madisonville Recapping Co., Inc., Ky.App., 793 S.W.2d 849 (1990). The statute is clear on its face when it uses the phrase "above .15 percent." The statute says nothing at all about reading the statute in terms of tenths instead of hundredths. For example .15 means the same thing when read as .150. Therefore, .151 percent is above .15 or .150. However you look at it, .151 percent is "above" .15 percent.

An analogy may be drawn to the case of Garrett v. Commonwealth, Ky., 675 S.W.2d 1 (1984), where the defendant had argued that the term "over 18" in the persistent felony offender statute (KRS 532.080) that provides the defendant must be "over 18" at the time of the underlying offense really means 19. In rejecting this argument the Kentucky Supreme Court stated "[A] person is 'over the age of 18' from the first moment of the day on which his 18th birthday falls."

In conclusion, it is our interpretation that the reading need not be .16 percent in order to trigger KRS 189A.110. A reading of any amount over .15 percent will bring KRS 189A.110 into play in order to detain the person in custody at least four hours following his arrest.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Joseph R. Johnson

Assistant Attorney General