Swinnen and Associates LLC -

Kansas DUI law requires the skills of a qualified Kansas drunk driving defense lawyer. The charge of Driving Under the Influence of Alcohol or Drugs (DUI) means that you operated or attempted to operate a vehicle when, because of the ingestion of drugs or alcohol, you were incapable of safely doing so.

Kansas DUI prosecutors will attempt to prove this incapability by showing either that your blood alcohol level (BAC) was .08 or above, and/or from other evidence, such as poor performance on field sobriety tests, poor driving skills, your physical appearance, and statements that you made to the officer.

In order to defend against a Kansas DUI case, you must be ready and able to attack the Government's drunk driving evidence. This can be done through independent witnesses who can attest to your lack of intoxication, or through critical examination of the results of the breath or blood tests. The Kansas DUI can also be attacked by challenging the precision and proficiency with which the officer conducted the field sobriety tests.

Kansas DUI arrests can also be fought by challenging the training and experience of the persons who conducted any chemical tests; by contesting the constitutionality of any stops, searches and seizures; and by testing the credibility and reliability of the statements of any witnesses.

Kansas DUI cases are no different than any criminal charge: the Government bears the burden of proving the charge against you beyond a reasonable doubt, to the exclusion of every reasonable doubt. Because of an increased political and public intolerance toward those who drink and drive, however, defending against a Kansas DUI charge has become more complicated, while the penalties upon conviction have become more onerous.

Your Driver's License

Kansas DUI arrests give rise to two distinct and separate aspects of your case: the criminal charges, which can result in fines, jail time, and loss of driving privileges; and the administrative (or civil) case, which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the driver's license case, as there are different rules that apply to each.

Kansas DUI law is such that the length of suspension that you face depends upon whether you refused the chemical test or whether you failed the test; whether this is your first test failure; and whether you are over or under 21 years of age. The time of suspension of driving privileges, depending on these factors, ranges from 30 days to one year.

Kansas DUI law provides you with the right, however, to an administrative hearing in which you can challenge the grounds upon which your license is being suspended. If you are successful at the hearing, your license may not be administratively suspended at all. This is but one reason why it is critical that you obtain the services of a well qualified Kansas DUI defense lawyer.

When you were arrested, the officer should have given you a pink form, called the DC-27. As described on the back of that form, you must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 days of the day you received the DC-27 or your driving privileges will automatically be suspended, period.

If you request an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.

At the hearing, a number of issues can be raised in your, defense - depending on the facts of your case - including whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs, whether you were given the legally required notices, whether your actions constituted a legal refusal to take the test, whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE), whether the testing procedures were in substantial compliance with KDHE rules and regulations, whether the test result was .08 or greater, whether you were operating or attempting to operate a vehicle, and due process or other constitutional issues.

Again, it is extremely important to request the administrative hearing within 10 days. Failure to do this will result in the suspension of your driving privileges without a hearing.

Potential Criminal Penalties

Kansas DUI Statute
K.S.A. § 8-1567

KANSAS STATUTES ANNOTATED
CHAPTER 8.--AUTOMOBILES AND OTHER VEHICLES
ARTICLE 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD
SERIOUS TRAFFIC OFFENSES

8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties.
(a) No person shall operate or attempt to operate any vehicle within this state while:

(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;

(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole. In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.

(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment. As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.

(f) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The court may also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto. The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

(g) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of post-release supervision, which such period of post-release supervision shall not be reduced. During such post-release supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such post-release supervision may subject such person to revocation of post-release supervision pursuant to K.S.A. 75-5217 et seq. , and amendments thereto and as otherwise provided by law.

(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had a child under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. During the service of the one month enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

(k) (1) Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a person convicted of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

(l) The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

(m) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

(1) 'Conviction' includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

(2) 'conviction' includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;

(3) any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;

(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense; and

(5) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

(n) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

(o) (1) Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

(p) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq. , and amendments thereto, shall not constitute plea bargaining.

(q) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alternative, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.

(r) Upon a fourth or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.

(s) For the purpose of this section: (1) 'Alcohol concentration' means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

(2) 'Imprisonment' shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.

(3) 'Drug' includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.

(t) The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.

Juvenile Drivers and DUI's

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

Drivers Under 21 and DUI's

It is unlawful for any person under 21 to operate or attempt to operate a vehicle with a breath or blood alcohol content of .02 or greater. If a driver under 21 has a BAC of .02-.079 there are no criminal penalties, but driving privileges can be suspended. If the BAT is between .02 and .08, driving privileges may be suspended for 30 days on the first occurrence, and one year on any subsequent occurrence. If a driver has a BAT of .08 or above, driving privileges can be suspended for one year.

In order to avoid an automatic suspension of driving privileges, you must request an administrative hearing within 10 days of the day you were stopped. If you request a hearing, the basis for the suspension may be challenged.

DUI Diversion

Kansas DUI law is unique, since it allows for a DUI diversion program (which most states do not). If you have never been convicted of DUI, have never entered into a diversion contract for DUI before, and were not involved in an accident or collision resulting in personal injury or death, you may be eligible to participate in a DUI diversion program.

Kansas DUI Diversion is essentially a contract between the county or city 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 will be required to pay a fine; attend an alcohol and drug safety action program or treatment program, or both; use no alcohol or drugs; and fulfill whatever other terms and conditions the city or state requires.

Kansas DUI Diversion has one chief benefit: If, at the completion of the diversion period-usually one year - you have completed all the requirements of the contract, the criminal charge of DUI is dismissed.

However, If you do not successfully do all that is required of you under the contract, your case will be placed back on the trial docket and the criminal case against you will be reinstated and your trial will be conducted on stipulated facts.