Terms and Definitions

Terms and Definitions

The following is a list of terms and their definitions, which are often used in DUI cases.

absorptive state - period of time, usually several hours, between consumption and absorption of alcohol by the body. Given the uneven distribution of alcohol within the body during this absorptive state, accurately determining BAC levels during this period is doubtful, though the courts and prosecutors seem to believe otherwise.

accident - a wreck. When personal property or personal injury accompanies a DUI, it often complicates the case, sometimes leading to more severe consequences.

acetaldehyde - chemical produced as the body's metabolism breaks down ethanol. Can be falsely detected as alcohol by breathalyzers. Dieters and diabetics can have high acetaldehyde levels.

acetone - organic compound found in breath that can falsely be detected as as alcohol by breathalyzers.

acid reflux (heartburn) - condition when fluid or gasses in the stomach enter the esophagus, which often then delivers abnormally high levels of alcohol and can lead to falsely high breath alcohol results on the breathalyzer.

administrative hearing - the license hearing through the Kansas Department of Revenue.

Administrative License Revocation (or Administrative License Suspension) - this law requires an administrative license suspension for people who fail a breath test or refuse to take a breath test.

ADSAP - an evaluation to determine the needed treatment for alcohol and/or drugs. This evaluation is required in every DUI conviction.

air bag propellants - used by manufacturers to help activate air bags. If inhaled, these particles can be absorbed by the body and eventually exhaled, potentially triggering false alcohol readings.

air blank - a breath sample from a contained controlled source that is absolutely free of alcohol. The air blank is used by the Intoxilyzer 8000. Sources for contamination of an air blank include: used mouthpieces; the breath tube inlet being in close proximity to a heavily contaminated or intoxicated subject; or the recent use of solvents or cleaning compounds in the vicinity of the breath test devices.

alcohol screening device - types of instruments used by officers in the field to obtain initial indications of blood-alcohol levels, often referred to as a PBT.

ambient air - air, which under ideal circumstances, contains no alcohol, and is used to purge contaminated air from the chamber or a breathalyzer. This is often used to "purge" malfunctioning breath machines.

Amendment - 1.) When a charge is changed or altered. Sometimes this means changing the charge from a felony charge to a misdemeanor charge or vice versa. Sometimes it means adding charges. 2.) "fix a ticket" when a traffic ticket is reduced to a non-moving violation, such as to a parking ticket.

anemia - deficiency in the body which can lead to falsely high blood alcohol readings.

antacids - chemicals which change the gastric acidity in the stomach, which can lead to alcohol production by resident bacteria and elevated false blood-alcohol readings.

anti-plea bargaining - a statute, case law or policy that prohibits plea bargaining or reducing an alcohol-related offense to a non-alcohol related offense. It is illegal in Kansas to plea off of a DUI. Years ago, it was common to a plea a DUI to a reckless. It's not allowed anymore.

anxiety - psycho-physiological effects of anxiety may affect field sobriety test performance.

arraignment - when the defendant is formally charged and issued a formal complaint.

BAC - blood alcohol concentration. This is what the breathalyzer attempts to measure. While blood tests are the most reliable method of measuring blood alcohol content, breath tests are more commonly utilized.

bifurcation of trial - In order to avoid bias, sometime a trial is split up where certain parts or evidence is revealed later, at a different time.

breathalyzer - typewriter sized machine at the police station which tests breath for BAC. Kansas utilizes the Intoxilyzer 8000. There is an actual machine called the Breathalyzer, but it isn't used in Kansas

breath analysis - the scientific observation of what comes from the person's lung. It is argued by defense lung experts, that measure the breath doesn't provide accurate readings regarding blood alcohol levels. Breath testing machines used to utilizes a wet chemical method of breath analysis rather than infrared spectrophotometry, whcih the Intoxilyzer 8000 uses.

blood analysis - the most accurate scientific method of determining BAC levels and typically employing either gas chromatography, dichromate or enzymatic reaction.

Candida albicans - a microorganism commonly found in the human body that is capable of producing ethyl alcohol in stored blood. If this is found in the sample and the sample went for a few days in heat, it can lead to falsely high alcohol readings when testing the blood.

checkpoints - the United States Supreme Court has held that these roadblocks do not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. Kansas law enforcement utilize this often.

child endangerment - applies when a minor is an occupant of a vehicle at the time of a dui offense. This can complicate the case.

citizen informant - informant cases rely upon a "tip" to law enforcement from a citizen observing a vehicle that they believe is being driven by a drunk driver. These cases can lead to solid suppression issues, especially when the "tip" was anonymous.

civil liability - when someone is injured or there is property damage, the drunk driver is the obvious and easy one to blame. This often leads to them being forced to pay the damages incurred by the other people.

commercial drivers - the legal BAC levels are lower, plus additional criminal penalties or license suspensions often apply.

common carriers - federal statutes mandate felony status for anyone operating a common carrier under the influence of alcohol or drugs.

Corpus Rule - as in all criminal prosecutions, evidence of a defendant's incriminating statements in a drunk driving case may not be introduced until there has been sufficient independent evidence presented to establish a prima facie case.

DC-27 - the pink form, suspension notice served by an officer after a DUI investigation. It serves as both notice and your temporary driver's license.

dram shop - referring to the liability of an alcohol serving establishments when somebody is injured after that establishment served alcohol to an intoxicated person who subsequently cause death or injury to a third party.

defective complaint - when a prosecutor's complaint lacks compliance with that jurisdiction's requirements.

delayed testing - Kansas requires that the person be testing within 3 hours of driving. Failure to do so can mean that the administrative hearing is won by the defendant. In the criminal case it can lead to a suppression but usually leads to the evidence being admitted, but the defense can attack the credibility of the test.

dichromate - a method for analyzing blood samples for alcohol content.

direct breath statutes - many states have adopted direct breath statutes in an attempt to avoid the scientific reality of variable partition ratios. Kansas uses the words, :as measured." in an attempt to avoid the defense.

District Court - State Court or County Court in Kansas. Your case can start here, especially if you were arrested by the Sheriff or Kansas Highway Patrol. If you were charged with a felony, it will definitely be in the District Court. Additionally, if your case is in a city court, you can appeal the decision to a District Court with de novo review.

divided attention test - a field sobriety test that tests the ability to navigate both physical and mental tasks at the same time.

Diversion - a contract between the prosecutor's office and the defendant. If successfully completed, the prosecutor dismisses the charges against the defendant.

DL Hearing - the administrative hearing with KDOR

double jeopardy - prohibits a second prosecution on the same charges after either acquittal or conviction. Criminal prosecution for DUI does not prevent an administrative license suspension (or vice versa).

DRE - drug recognition expert administers a drug recognition exam. A series of tests given by the expert to determine if the defendant is currently influenced by drugs.

Driver's Privacy Protection Act of 1994 - prohibits the dissemination of personal information obtained by the state in connection with a motor vehicle record except under specified circumstances.

driving - one element of the DUI charge.

driving while impaired - DWI. This is what Missouri calls drunkdriving, while Kansas call it DUI, driving under the influence of alcohol or drugs.

drugs - In Kansas, driving under the influence of drugs or narcotics is treated similarly to driving under the influence of alcohol.

drunk - refers to a person who is so inebriated that he is incapable of caring for his own safety.

DUI - Driving under the influence of drugs or alcohol

DUI Lawyer - a skilled attorney who is experienced and trained at defending people accused of drunk driving.

DWI - Driving while intoxicated; Kansas calls is DUI

endogenous ethanol - alcohol manufactured internally by an individual's body. Although rare, scientists have observed the occurrence of small amounts of alcohol in the blood and tissue of abstaining individuals.

enhancements - sentence enhancements refer to statutes that provide for additional penalties, usually when a drunk driving offense is combined with other issues such as when there was a serious injury involved, child endangerment, or when BAC is over a certain level.

ethanol/ethyl alcohol - grain alcohol.

exigent circumstance - Typically, the 4th amendment doesn't allow unreasonable searches and seizures. However, DUI investigations appear to be an exception due to the "exigent circumstances." Courts allow blood tests without a warrant because of the level with which alcohol dissipates from the bloodstream.

felony drunk driving - under certain circumstances the misdemeanor offense of driving under the influence of alcohol will be treated as a felony, such as when someon ewas killed or when the person has 2 or more prior dui convictions.

fermentation - naturally occurs in the vial of a blood sample and in some instances may produce falsely high BAC levels.

Field Sobriety Tests - FSTs - A series of exercises administered by the officer initiating the DUI investigation. The tests include the HGN, the Walt and Turn, and the One Leg Stand. These tests are used to help the officer establish probable cause to arrest people. These tests are supposed to be standardized and if they are not given the same way, the manual says that the results are compromised.

forceful seizure of blood sample - when a statute allows the officer to force the person to provide the blood and gives the police authority to use force.

foreign prior convictions - a prior out-of-state conviction may be used to enhance a defendant's sentence for a subsequent Kansas conviction.

forfeiture of vehicle - legislation permitting the temporary impounding of the vehicle used by the convicted DUI driver. Kansas appears to be backing off this and moving towards utilizing the ignition interlock more instead.

gas chromatograph - a device containing a computer system for the analysis of blood samples for blood-alcohol concentration.

heartburn - a potential source for mouth-alcohol contamination and a corresponding false-high breath machine reading. Heartburn is usually caused by a medical condition known as a hiatus hernia often found in the elderly, pregnant and overweight individuals.

hematocrit - a potential source of error in breath-alcohol analysis. Whole blood is made up of solid particles suspended in liquid. The percentage by volume of the solid particles is called the hematocrit of the blood. Breath machines report a falsely high blood alcohol reading for persons who have blood with a high hematocrit.

Henry's Law - as applied to breath testing, states that the concentration of alcohol in the deep lung air is directly proportional to the concentration of alcohol in the blood surrounding the air sacs.

HGN - Horizontal Gaze Nystagmus - an eye test utilizing a pen or some other object (called the stimulus), for the subject's eyes to follow, while the officer gauges the jerking of the eyes. It is one of the standardized Field Sobriety Tests. It is generally inadmissible in Kansas courts.

ignition interlock - a device that prevents a driver from starting a vehicle without first breathing into a breath analyzing device and getting a negative reading. Kansas has been heavily requiring these devices for DUI offenders. In some DUI cases, Kansas requires this device to be installed on the defendant's vehicle. According to a study conducted by the National Highway Traffic Safety Administration, most of these devices are not very accurate at low and moderate blood-alcohol levels.

implied consent - require drivers to submit to a chemical test when requested as a condition of being granted the privilege of driving. These laws authorize suspension or revocation of the driver's license by the arresting officer where the driver refuses to take a blood-alcohol test or when the driver's blood-alcohol test reflects a blood-alcohol concentration of at least .08.

impoundment/forfeiture - K.S.A. 8-1567 permits a person convicted of DUI to have their vehicle impounded. In lieu of this, the statute also allows for an ignition interlock.

independent blood sample - Kansas allows the defendant the right to obtain their own private analysis of their blood or urine. Denial of the right to obtain a sample for independent analysis may include suppression of the prosecution's blood-alcohol evidence or dismissal of the charges.

industrial compounds - some commonly encountered chemical compounds may lead to a false alcohol reading.

infrared - the majority of breathalyzers utilize the infrared spectrophotometric method of analysis.

insulin - an enzyme inhibitor needed for the digestive system to break down foods for the body to absorb. A lack of insulin production by the body may result in diabetes, which can affect blood alcohol readings.

intoxication - being under the influence of alcohol.

Intoxilyzer 5000—the breath machine Kansas and most other states used to predominantly use. Kansas now uses the Intoxilyzer 8000. The Intoxilyzer 5000 utilizes the infrared spectrophotomeric method of analysis, which is infrared absorption.

judicial estoppel—when the court prevents someone from claiming or utilizing a certain issue. A legal doctrine that provides that when a party assumes a certain position in a legal proceeding, that party is "estopped" from assuming a contrary position in a subsequent legal proceeding.

ketoacidosis - a physical state, often associated with diabetes, where the body burns fat as opposed to carbohydrates as a source of fuel, producing ketones. Ketones can cause bad breath which can be confused with the odor of alcohol and can register as ethyl alcohol breathalyzers, producing a falsely high blood-alcohol reading.

license suspension - Prior to your license being automatically suspended upon a breath test failure or refusal, you have the right to request an administrative hearing within 14 calendar days. You are also required to pay a $50 fee at the time you make the request.

manslaughter - this form of homicide is a serious felony that occurs when there is a death when the driver was driving under the influence. Depending on how the offense is charged, vehicular homicide can be charged as a misdemeanor, but likely will not be if the driver was accused of being under the influence while the wreck occurred.

metabolism - the body's ability to break alcohol down affects an individual's blood-alcohol level.

Miranda Rights - the famous rights given to a suspect by the police when they are arrested. If these rights are not provided prior to an interrogation, then the suspects statements may be suppressed. Recent case law has weakened this important right and has made it a burden for the suspect to claim these protections.

misdemeanor drunk driving - a first or second time dui will be a misdemeanor. Subsequent drunk driving charges could be misdemeanors under the new 2011 DUI law. However, third DUIS many times are felonies.

modified position of attention - a common field sobriety test designed to detect swaying in the driver, presumably a symptom of intoxication. A scientific study has concluded that even high doses of alcohol have little effect on body sway.

mouth alcohol - alcohol in the mouth, rather than from the deep air lungs which the breathalyzer is supposed to read. Mouth alcohol can exist in numerous ways including, belches, foreign substances in the mouth, hiccups or regurgitation within 15 or 20 minutes of being tested.

multiple punishment - a single act that results in concurrently prosecuted and punished as two or more separate criminal offenses. This occurs when additional charges are attached to a DUI or in cases where more than one person dies as a result of the drunk driver.

Municipal Court - city court; where most DUI originate, unless arrested by the County Sheriff or the Kansas Highway Patrol or Sheriff's Officer. Even then, it could be in the municipal court as some cities contract out their law enforcement to them.

narcotics - driving under the influence of drugs or narcotics is treated similarly to driving under the influence of alcohol in most jurisdictions. In addition, an individual may be charged with operating a motor vehicle under the combined effects of drugs and alcohol.

negative scoring - a scoring system often used by officers conducting a field sobriety test whereby the officer subtracts points for mistakes the suspect makes, but fails to add points when the suspect does something right. This approach may unfairly place the subject in a "no win" situation.

NHTSA - National Highway Traffic Safety Administration; the federal agency that created and provides the manual for Standardized Field Sobriety Test training.

noncompliance with testing regulations - Kansas has very specific protocol for administering the Intoxilyzer 8000. Noncompliance may result in suppression of the breath test.

odor of alcohol on breath - the most recurring symptom in a police officer's report is that he smelled alcohol. While video can disprove some things the officer may testify to, unfortunately, the video can't record the true smell. Furthermore, while alcohol itself has little or no odor, the odor of the flavorings can be deceptive as to the strength or amount drunk.

one leg stand - common field sobriety test where a DUI suspect is instructed to stand on one leg for 30 seconds, with the other leg held out at 45 degree angle. There are four signs of impairment which the officer is looking for.

oral blood - blood in the mouth may affect the breath machine's reading as the alcohol in the blood will be tested directly into the machine rather than being measured indirectly through the deep lung air, unknown to the breathalyzer.

OUI - operating under the influence; the term used by other states for referring to drunk driving charges. Kansas uses DUI.

partition ratio - a formula used in the determination of the individual's blood-alcohol level, using the breath-alcohol level, which relies upon the false scientific presumption that the ratio is 2100 to 1. However, the blood-breath partition ratio may vary considerably among individuals. Therefore, reliance upon a presumed ratio may produce an incorrect blood-alcohol reading.

PBT - Preliminary Breath Test. A small, much less accurate and usually inadmissible machine used out in the field to test for BAC.

per se laws - drunk driving statutes passed by state legislatures wherein the crime consists of having a designated level of alcohol in the blood (.08 or .10 percent) while driving. In Kansas, the legal limit is .08.

per se suspension - Kansas statutes require suspension of the driver's license where the blood-alcohol level is .08. Suspension determinations are made pursuant to an administrative hearing.

Pink Form - the Kansas DC-27 suspension notice issued by the investigating DUI officer

plasma - the liquid portion of the blood. The concentration of alcohol in plasma can be significantly higher than the concentration of alcohol in whole blood containing plasma and solid particles, therefore testing plasma rather than blood can lead to falsely high blood alcohol readings..

plea bargaining - a process during which the criminal defense lawyer for the defendant negotiates with the prosecutor and discusses the strengths and weaknesses of the case. The point is to arrive at a mutually acceptable disposition of the case, subject to final approval by the judge.

PSI or pre-plea probation report - a report written pursuant to a probation department investigation setting forth the details of the offense, the defendant's record, and the details of the defendant's life.

presumption of intoxication - Kansas statute establishes a statutory presumptions from the results of chemical tests given to drunk driving suspects, that the person is under the influence if the BAC results are .08 or greater.

probable cause - reasonable grounds for presuming guilt in someone charged with a crime. Lack of probable cause to believe that a crime had been committed may be asserted as grounds for suppression of all evidence.

probation violation hearing - a hearing held to determine whether the defendant has violated the terms and conditions of probation imposed in an earlier drunk driving case. The standard of proof that the prosecutor must bring is significantly lower than the beyond a reasonable doubt standard required to convict you in the first place.

pupil reaction - eye impairment test involving the shining of a flashlight into a suspect's eyes in order to observe the speed of pupil contraction. This field sobriety test has been replaced or with the horizontal gaze nystagmus test, which is currently not admissible in court.

purge - repair procedure used by law enforcement to on a malfunctioning breathalyzer, by which ambient air is forced through the airways of the machine in an attempt to clean it out. Often the machine is left on it's own forcing air for several hours, until it is supposedly "fixed."

racial differences - scientific research indicates racial/genetic difference which effect alcohol in the body.

radio frequency interference - cause breathalyzers to produce inaccurate readings. false results. The Intoxilyzer 8000 is equipped with an RFI detector, but is deemed unreliable by some.

reckless driving - a traffic infraction which years ago many duis were amended to.

refusal evidence - this "other competent evidence" is evidence of a defendant's refusal to submit to a chemical test and can effect the trial because of the jury's tendency to view the refusal as an inference of consciousness of guilt.

retrograde extrapolation - The blood-alcohol level at the time the test was administered is presumed to be the same as the level at the time the defendants were driving. However, this presumption is rebuttable and the defense must offer evidence that the defendant's blood-alcohol at the time he was driving was lower than the level at the time he was tested.

right to counsel - Kansas specifically refuses to recognize a constitutional right to counsel when a DUI suspect is requested to participate in chemical testing.

right to jury trial - Kansas allows for a person to demand a jury trial for dui charges.

saliva effect - mouth alcohol is a problem in analyzing a breath sample because the alcohol in the saliva is being breathed directly into the machine as opposed to being filtered by passage through the lungs.

SATOP - Missouri's version of Kansas's ADSAP

sentencing - in most drunk driving cases, the provisions of a sentence will involve at least some or all of the following: fine; jail time; suspension; restriction or revocation of license; attendance at drunk driving classes; and probation (supervised or informal).

sex differences - women are generally more susceptible to the effects of alcohol than men, due to relative size, greater body fat and less water than men. In addition, research indicates that women have significantly lower amounts of an enzyme that provides a protective barrier in the stomach by breaking alcohol down before it circulates into the body.

simulator calibration - the accuracy of a breath machine is dependent upon the accuracy of its calibration which is accomplished through the use of a simulator solution of alcohol and water.

SIS - Suspended Imposition of Sentence - prosecutor and court agree to not punish (sentence) the defendant for the crime if they successfully complete the SIS period without getting into trouble. While some believe this to be the same thing as a diversion, it isn't.

slope detector - a device which theoretically determines whether there is alcohol or an interfering substance present in the mouth.

smoking - cigarette smoke can influence the absorption of alcohol in the body and therefore affect the validity of attempts at retrograde extrapolation.

SR-22 - proof from an insurance company clarifying that auto liability insurance is in effect for a particular individual. This form is often required by the court in cases where you were convicted of a DUI, you were involved in an accident, or you were unable to show financial responsibility.

statutory enhancements - statutes providing for increased penalties where specific criteria exist such as: high blood-alcohol concentration, refusing to submit to chemical testing, reckless driving, child endangerment, and accident or injury.

stop and snatch laws - Kansas law permits the arresting DUI officer to immediately confiscate the driver's license and serve a notice of suspension, the DC-27 pink form.

Suspension Notice - Notice suspending your license. This notice can come from the State for too many tickets, or from an officer after a DUI. If you get such a notice, call a Kansas lawyer immediately. In a DUI charge, the suspension notice often is personally served on you via the DC-27 pink form.

Suppress - Keeping the evidence out of court. One of the most important, but often neglected steps in defending a DUI charge. It's when the court doesn't allow things, like the breath test results, to be evidence at trial.

Temporary License - Law enforcement often call the pink DC-27 form your temporary license. While this may be true, that form is also your legal notice, informing you that your license is or is going to be suspended, as well as how to request an administrative hearing regarding your driver's license.

toluene - a common chemical compound found in paints, thinner, cleaning solvents and petroleum products that, if inhaled, can be retained in the membranes of the throat and lungs for up to three weeks. Toluene is detected by any infrared breath machine as alcohol, leading to false BAC readings.

Tyndall effect - the scattering of light by the particles within a chamber. Baking soda and talc used to pack air bags can be inhaled by the defendant upon deployment and exhaled into a breath machines. This can deflect the light beams in the machine and produce a higher blood-alcohol reading.

under the influence of alcohol—the physical state in which alcohol has so affected the nervous system, brain or muscles so as to impair the ability to safely operate a vehicle.

Uniform Vehicle Code - some states have adopted the Code's recommended blood-alcohol presumptive levels of intoxication at .10 percent or more of alcohol in the blood by weight. Kansas however has utilized a lower level of .08.

urinalysis - Often referred to as a UA, this is the chemical analysis of a subject's urine. This is the least accurate method of determining blood alcohol levels.

urine-to-blood ratio - a basic problem inherent in urinalysis is the underlying presumption that the concentration of alcohol in the urine at the time of secretion is 1.33 times greater that the concentration in the blood. However, any given individual's ratio can vary from as little as 0.8:1 to as much as 2.0:1 or even more.

vehicular homicide - a term used by some states for a crime when there is a death caused by someone's negligent driving. Vehicular homicide is a misdemeanor, but is called something else and charged as a felony if the driver was allegedly under the influence at the time he was driving.

venous blood - blood samples are commonly withdrawn from the vein rather than the artery. The content of venous blood can be very different from the content of arterial blood as it is the blood in the arteries that carries alcohol into the brain, resulting in intoxication.

VGN - Vertical Gaze Nystagmus. It's similar to the HGN, but rather than moving the stimulus side to side, it is passed in front of you moving up and down. It supposedly checks fro signs of drug impairment, rather than alcohol impairment.

walk-and-turn - a standardized field sobriety test that requires the subject to walk nine heel-to-toe steps along a line, turn around, and take nine heel-to-toe steps back. The officer is looking for 8 potential clue of impairment. This SFST is often called walk-the-line.

Widmark r factor - a means of measuring the alcohol absorbed by the body beyond that found in the bloodstream. Specifically, it is a designation of a ratio between the concentration of alcohol in the whole body divided by the concentration of alcohol in the blood. For men, this ratio averages about .67, with a range of .46 to .86; women usually have a somewhat lower ratio, due to their larger proportion of fatty tissue.

Widmark Factor B - the rate of disappearance of alcohol from the body by oxidation of the liver.

zero tolerance - new statutes and regulations aimed at younger drivers, applying an automatic license suspension to a driver of a certain age with any blood-alcohol concentration.

zinc deficiency - research indicates that high blood-alcohol levels may not be indicative of alcohol consumption, but rather may be caused by a deficiency of zinc in the blood. A person with an insufficient amount of zinc has alcohol remain in their blood for a longer period.

When dealing with a DUI charge, you should find the best DUI attorney possible to defend you. Hire a Kansas criminal defense lawyer who focuses on defending drunk driving charges in just one state, understands all the terminology, and is extremely familiar with all the terms, forms of defenses, and fully defending DUI charges. We zealously represent clients throughout Kansas. We are regularly in Overland Park, Olathe, Lenexa, Leawood, Shawnee, and Johnson County, KS.