What is a DUI?

In Kansas, you may be charged with DUI (Driving Under the Influence) for either of two specific offenses. First, operating or attempting to operate a motor vehicle while having a breath or blood alcohol level of .08 or greater leads to a DUI charge. Secondly, you may also be charged if you are unable to safely operate or attempt to operate a vehicle due to the ingestion of drugs/alcohol, or a combination of both. This incapacity may be demonstrated by such evidence as poor driving skills, poor performance on field sobriety tests, statements that you make to the officer, and your physical appearance.

To defend against such a charge, you must be able to demonstrate your lack of intoxication. There are a variety of ways to do this:

(1) Through evidence presented by independent witnesses

(2) Through critical examination of the government's witnesses

(3) Through in-depth analysis of the results of the breath or blood tests

(4) Through careful scrutiny of the officer's proficiency and precision in administering the field sobriety tests

(5) Through careful examination of the training and experience of the persons who conducted any chemical tests

(6) Through a thorough evaluation of the constitutionality of the traffic stop, or contact by the officer, as well as a review of the constitutionality of any search or seizure performed by the officer

The government bears the burden of proving the DUI charge against you, but because there is greatly increased public and political intolerance toward those who drink and drive, it has become more difficult and complicated to defend persons charged with DUI, and the penalties if convicted have become more severe.

If you have been arrested for DUI, there are both civil and criminal aspects of your case which must be addressed. From the civil standpoint, Administrative Proceedings can result in the suspension and restriction of your driving privileges. Criminal Charges can result in fines, jail time, and restriction or suspension of your driving privileges

Administrative Proceedings

The length of the suspension and/or restriction of your driving privileges resulting from the Administrative Proceedings will depend upon several factors:

(1) Whether you refused or failed the chemical test

(2) Whether this is your first DUI arrest or whether you have a prior diversion and/or convictions, or have received a previous administrative suspension of your driving privileges

(3) Whether you are over or under 21 years of age at the time of the test failure/refusal

Depending upon these factors, the length of the suspension of your driving privileges varies from 30 days up to a permanent revocation of your driver's license. You do have the right to an administrative hearing to challenge the State's grounds for restricting or revoking you driving privileges, however, and if you are successful with this challenge, the administrative action restricting your driving privileges will be dismissed.

DC -27

At the time of your DUI arrest, the officer should have given you a pink form called the DC-27. As explained on the back of that form, you must send a request for an administrative hearing to the Kansas Department of Revenue within 10 days of the day you received the DC-27. In your request, you must specify that your hearing be in person before a representative of the Department of Revenue. If you do not request an in-person hearing, then the hearing will be held over the telephone. If you fail to request an administrative hearing, you will not be allowed to challenge the administrative suspension of your driving privileges.

If you do request an administrative hearing, your driving privileges will continue in full force and effect until 30 days after the administrative hearing. A number of issues can be raised at this hearing to contest the suspension of your driving privileges. These include, but are not limited to:

(1)Whether the officer in fact had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol/drugs or a combination of both

(2) Whether you were given the statutorily required notices

(3) Whether your actions constituted a test failure/refusal

(4) Whether the testing equipment, the testing procedures, and the officer operating the machine were certified/approved by the Kansas Department of Health and Environment (KDHE)

(5) Whether the test result was .08 or greater

(6) Whether your Constitutional Rights were violated

Criminal Charges

The criminal penalties of a DUI include fines, mandatory jail time, suspension of your driving privileges, and the potential impoundment of your vehicle. The number of prior DUI convictions/diversions you have had during your lifetime determine the amount of the fine and the length of any jail sentence. Under current Kansas law, all prior DUI convictions and DUI diversions count towards enhancing (increasing) the criminal level of the DUI being charged, regardless of how long ago they occurred.

First Conviction: A first lifetime conviction for DUI is a Class B misdemeanor. The sentence ranges from 48 hours to six months in jail, along with a fine of between $500.00 and $1000.00. You must serve at least 48 hours, unless the court approves a request to perform 100 hours of community service in lieu of serving the 48 hours in jail. Upon a first conviction your driving privileges will be suspended for 30 days, followed by 330 days of restriction. In addition, you will be required to undergo a drug and/or alcohol evaluation and to complete the treatment recommended by the evaluator.

Second Conviction: A second lifetime conviction for DUI is a Class A misdemeanor. The sentence ranges from 90 days to one year in jail, with a fine of between $1000.00 and $1500.00. Provided that you enter into a substance abuse treatment program, you must serve at least five days in jail, but after 48 hours the judge can order that the remainder of the sentence be served on house arrest or in a work release program. Upon a second conviction, your driving privileges will be suspended for one year, followed by at least one year of interlock restrictions.

Third Conviction: A third lifetime conviction for DUI is a felony. The sentence ranges from 90 days to one year in jail, along with a fine of between $1500.00 and $2500.00. After completing 48 hours in jail, the court may order that the remainder of the sentence be served on house arrest or in a work release program. Upon a third conviction, your driving privileges will be suspended for one year followed by at least one year of interlock restrictions.

Fourth or Subsequent Conviction: A fourth or subsequent lifetime conviction for DUI is also a felony. As with a third conviction, there is a sentence of between 90 days and one year in jail, but the fine is a flat $2500.00. You must serve 72 hours in jail prior to the court being able to grant work release for the balance of your sentence. House arrest is not permitted. Upon a fourth conviction, driving privileges are suspended for one year followed by at least one year of interlock restrictions. If there is a fifth conviction, driving privileges are permanently revoked.

DUI Diversion

If you have never been convicted of DUI, have not participated in a prior DUI diversion program, and you were not involved in an injury accident, you may be eligible to participate in a DUI diversion program. Diversion is basically a contract between the prosecutor and the person charged with DUI in which the person charged gives up his or her right to a speedy trial and his or her right to a jury trial in exchange for an opportunity to avoid a conviction for DUI. Under the diversion agreement, you are required to pay a fine, to attend an alcohol and drug safety action program or treatment program (or both), to use no alcohol or drugs, and to fulfill any other terms and conditions the prosecutor requires. If, at the completion of the diversion period (usually one year), you have successfully completed all the requirements of the contract, the criminal charge of DUI is dismissed. If you do not successfully fulfill all the requirements of the contract, your case will be placed back on the trial docket, the criminal case against you will be reinstated, and your trial will be conducted on stipulated facts.

Juvenile Drivers and DUI

Juveniles who are at least 14 but not yet 18 years of age, and who are charged with DUI are tried in adult court, rather than juvenile court. A juvenile's sentence cannot be longer than ten days, however, and can only be served in a juvenile detention facility. The court may revoke or suspend a juvenile's driving privileges for a period of up to one year upon conviction for DUI. The court may impose restrictions on a juvenile's driving privileges rather than imposing a suspension

Drivers under 21 and DUI

In addition to the main DUI law that prohibits operation of a motor vehicle if a person's breath or blood alcohol level is .08 or greater, it is administratively unlawful for a person under 21 to operate or attempt to operate a vehicle with a breath or blood alcohol content of .02 to .079. If a driver under 21 has a BAC between .02 and .079, his/her driving privileges may be suspended for 30 days on the first occurrence, and for one year for any subsequent occurrence. Driving privileges can be suspended for one year if a driver has a BAC of .08 or above.