[1994/oagheade.htm]

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