Are you facing DUI or Refusal Charges in Wichita, Kansas? Many of our clients facing DUI/Refusal charges have benefited from our aggressive and creative approach that we take in court. At Hulnick, Stang, Gering & Leavitt, P.A. we have over 80 years of experience. We strive to achieve favorable outcomes in an efficient manner. We take pride in the reputation we have earned throughout Kansas and on the national level for our accomplishments in this arena. You will find helpful DUI & Refusal information below:
In Kansas, there are multiple ways to be charged with Driving Under the Influence (DUI). The first consists of operating or attempting to operate a vehicle while having a breath or blood alcohol level of .08 or greater within 3 hours of operation or attempted operation. The second is operating or attempting to operate a vehicle while under the influence of alcohol, drugs, or a combination of both, that renders a person incapable of safely driving a vehicle.
Effective July 1, 2012, it became a crime in Kansas to refuse a chemical breath, blood or urine test requested by an officer to determine whether you are under the influence. If you have been operating or attempting to operate a vehicle, and you refuse to submit to a test of blood breath or urine requested by a law enforcement officer you may be charged with refusal IF:
On or after July 1, 2001, and subsequent to your 18th birthday, you had a prior conviction or diversion for DUI, or you have previously refused to submit to a test of blood, breath or urine properly requested by Law Enforcement.
As with any criminal charge, the government bears the burden of proving the charge against you. However, due to increased political and public intolerance toward those who drink and drive, defending persons charged with a DUI has become more complicated, and the penalties upon conviction continue to become more severe.
The penalties for a DUI conviction include mandatory fines and jail time, along with the suspension of your driving privileges. The amount of fine and the length of the jail sentence are determined by the number of prior DUI/Refusal convictions/diversions you have had since July 1, 2001. Under current Kansas law, DUI convictions/diversions before July 1, 2001, are not counted to elevate a current offense. However, a sentencing judge may still take into consideration convictions/diversions that pre-date July 1, 2001 when imposing the sentence.
First Conviction: A first conviction for DUI is a Class B misdemeanor. The potential sentence is 48 hours to six months in jail, and a fine between $750.00 and $1000.00. You must serve at least 48 hours of confinement, either in jail, the Wichita Intervention Program or perform 100 hours of community service. A conviction will also cause the suspension of your driving privileges for a period of time.
Second Conviction: A second conviction for DUI is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1250.00 and $1750.00. The minimum mandatory sentence is five days in jail, but after 48 hours the judge can order 120 hours of confinement in a house arrest or work release program. A conviction will also cause the suspension of your driving privileges for a period of time.
Third Conviction: A third conviction for DUI is a felony if one of your prior convictions/diversions happened within 10 years of the current offense. If all prior convictions/diversions happened outside 10 years from the current offense, it is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1,750.00 and $2500.00. The minimum mandatory sentence is 90 days, but after completing 48 hours in jail, the court may order 2160 hours of confinement in house arrest or work release program. A conviction will also cause the suspension of your driving privileges for a period of time.
Fourth or Subsequent Conviction: A fourth or subsequent lifetime conviction for DUI is a felony. The potential sentence is between 90 days to one year in jail, and a mandatory fine of $2500.00. You must serve 72 hours in jail prior to the court being able to grant 2160 hours of confinement in a work release or house arrest program. A conviction will also cause the suspension of your driving privileges for a period of time.
On all DUI convictions, you will be required to obtain a drug/alcohol evaluation and to follow any recommendations made by the evaluator. In addition, the Judge may order that you attend and successfully complete an ADSAP Program, and/or a DUI Victim Panel.
Child under 14 in the car
If you had a child under 14 years of age in your car when your DUI/REFUSAL occurred, you will be sentenced to 30 days confinement beyond the jail term required for the DUI/REFUSAL. This “enhanced” sentence may be served in jail, on house arrest, or in a work release program at the discretion of a sentencing judge.
The penalties for a Refusal conviction include mandatory fines and jail time, and the suspension of your driving privileges. The amount of fine and the length of the jail sentence are determined by the number of prior DUI/Refusal convictions/diversions you have had since July 1, 2001, when you were 18 years of age or older. Under current Kansas law, DUI convictions/diversions before July 1, 2001, or those occurring before the person is 18 years old, are not counted as prior convictions for the criminal charge of REFUSAL.
First Conviction: A first conviction for Refusal is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1250.00 and $1750.00. The mandatory minimum sentence is five days in jail, but after 48 hours the judge can order 120 hours of confinement to be served in a house arrest or work release program. In addition, your driving privileges will be suspended for the same period of time as an administrative suspension for refusing.
Second Conviction: A second lifetime conviction for REFUSAL is a felony if one of your prior convictions/diversions happened within 10 years of the current offense. If all prior convictions/diversions happened outside 10 years from the current offense, it is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1,750.00 and $2500.00. The mandatory minimum sentence is 90 days in jail, but after completing 48 hours in jail, the court may order 2160 hours of confinement in a house arrest or work release program. Upon a second conviction, your driving privileges will be suspended for the same period of time as an administrative suspension for refusing.
Third or Subsequent Conviction: A third or subsequent lifetime conviction for REFUSAL is a felony. The potential sentence is between 90 days to one year in jail, and a mandatory fine of $2500.00. Of the mandatory minimum 90 days in jail, you must serve 72 hours in jail prior to the court being able to grant 2160 hours of confinement in a work release or house arrest program.
On any REFUSAL conviction, you will be required to obtain a drug/alcohol evaluation and to follow any recommendations made by the evaluator. In addition, the Judge may order that you attend and successfully complete an ADSAP Program, and/or a DUI Victim Panel.
REMEMBER: YOU ONLY HAVE 14 DAYS TO REQUEST AN ADMINISTRATIVE HEARING
If you have been arrested for DUI or Refusal, there are two distinct and separate aspects of your case, both of which are very important to address:
- The Criminal Charge, which can result in fines, jail time, and the suspension and restriction of your driving privileges; and
- The Administrative Proceedings (civil case), which can result in the suspension and restriction of your driving privileges.
The length of the suspension/restriction of your driving privileges resulting from the Administrative Proceedings depends upon: (1) whether you refused or failed the chemical test; (2) whether you have a test result of .15 or greater; (3) whether this is your first DUI arrest or have prior diversions/convictions, or have received a prior administrative suspension of your driving privileges. The time of suspension of driving privileges, depending on these factors, ranges from 30 days to a one year, followed by up to a 10 year restriction to driving only with an Ignition Interlock Device. You have a right; however, to an administrative hearing in which you can challenge the grounds upon which the State of Kansas is trying to suspend/restrict your driving privileges. (YOU ONLY HAVE 14 DAYS TO REQUEST THIS HEARING) If you are successful at this hearing, the administrative action against your driving privileges will be dismissed. In the event you lose your hearing, a hardship license may be available after serving 45 days of the 1 year suspension if a test failure, and 90 days of the 1 year suspension if a test refusal.
Procedure for requesting an administrative hearing
At the time of your arrest, the officer should have given you a pink form called the DC-27. As set forth on the back of that form, you must send a request for an administrative hearing to the Kansas Department of Revenue within 14 days of the day you received the DC-27. In this request, you need to specify that your hearing be in person before a representative of the Department of Revenue, and that all officers certifying that form be subpoenaed. Failure to request an in-person hearing will result in the hearing being held over the telephone. You must also pay a $50 application fee at the time of requesting the administrative hearing. During your FREE initial consultation, we will request this hearing for you. Failure to timely request an administrative hearing will bar you from challenging the administrative suspension of your driving privileges.
CDL Holders and Administrative Suspensions
The legal limit for a driver operating a Commercial Drivers License is .04, half of what it is for a driver operating a non-commercial vehicle. DUI in a commercial vehicle may also be established by proving that the driver was incapable of safely operating the vehicle, as is the case in a non-commercial vehicle. Any administrative suspension or DUI conviction of a driver holding a CDL will cause the person’s Commercial Driving Privileges to become suspended. On a first occurrence, the suspension is 1 year, a second occurrence results in a lifetime revocation. It does not matter whether a commercial vehicle was actually involved.
Drivers Under 21 and Administrative Suspensions
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 any 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 one year on any subsequent occurrence. If a driver has a BAC of .08 or above, or refuses testing, driving privileges can be suspended for the same period as an adult. If a person under 21 years of age submits to a test and has a BAC between .02 and .079, they will be served a DC-28 form. If they submit to a test and have a BAC over .08, or refuse testing, they will be served a DC-27 form. In either case you must still request an administrative hearing within 14 days. Failure to request an administrative hearing will bar you from challenging the administrative suspension of your driving privileges.
If you have requested an administrative hearing, your driving privileges will continue in full force and effect until the date of your hearing. If the hearing officer rules in your favor, there is of course no suspension. If the hearing officer does not rule in your favor, your suspension will commence 30 days after the administrative hearing. (If you were suspended, or otherwise unable to obtain privileges at the time of service of the DC-27 form, this request will not change that status) At this hearing, a number of issues can be raised to oppose the suspension of your driving privileges, including but not limited to:
- Whether the officer 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
- Whether you were given the statutorily required notices
- Whether your actions constituted a test failure/refusal
- Whether the testing equipment, testing procedures, and the officer operating the machine were certified/approved by the Kansas Department of Health and Environment (KDHE)
- Whether the test result was .08 or greater
- Whether your Constitutional Rights were violated
The legal limit for a driver operating a Commercial Motor Vehicle is .04, half of what it is for a driver operating a non-commercial vehicle. DUI in a commercial vehicle may also be established by proving that the driver was incapable of safely operating the vehicle, as is the case in a non-commercial vehicle.
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; 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. Juveniles are subject to administrative proceedings. If the juvenile refuses a chemical test, or tests above .08, they will be served a DC-27 form. If the juvenile submits to a test and it results in a reading between .02 and .079, they will be served a DC-28 form.
If you have never been convicted of DUI or REFUSAL, nor participated in a prior DUI or REFUSAL diversion program, and you were not involved in an injury accident, you may be eligible to participate in a diversion program. Diversion is a contract between the prosecutor and the person charged with DUI or REFUSAL 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. Under the diversion agreement, you will be required to pay a fine; attend an alcohol and drug safety action program, treatment program, or both; use no alcohol or drugs; and fulfill whatever other terms and conditions the prosecutor requires. 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 or REFUSAL will be dismissed. 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, the criminal case against you will be reinstated and your trial will be conducted on stipulated facts Although upon successful completion of diversion the criminal case is dismissed, the diversion will show up on your record, and it can be used as a prior conviction for enhancement in any subsequent prosecution for DUI/REFUSAL.
Expungement means that all records of your arrest and conviction/diversion are sealed. This means that employers and the public will not be able to see the records in the KBI criminal history database. You will be treated as though the arrest/conviction never happened, and you are able to answer that you were not arrested or convicted in most instances, including most job applications. There are statutory exceptions in which you must still disclose the arrest/conviction, and certain agencies will still be able to see the information.
The Kansas Legislature has frequently changed the eligibility requirements for expungement of DUI convictions. Currently, a person becomes eligible for expungement 7 years from the time they have either satisfied their sentence, or have been discharged from probation. DUI expungement eligibility is determined from the law in effect at the time of your conviction, and therefore different time frames may apply to different people.
- Convictions before July 1, 2006 require a waiting period of 5 years from date the sentence is satisfied, or the person is discharged from probation
- Convictions beween July 1, 2006, and July 1, 2011 occurred during a period of time when the Kansas legislature prohibited DUI expungements. There is no definitive answer yet, but the waiting period will likely be either 7 or 10 years from the date the sentence was satisfied, or the person was discharged from probation
- Convictions from July 1, 2011, and July 1, 2014 require a waiting period of 10 years from date the sentence was satisfied, or the person was discharged from probation.
- Convictions after July 1, 2014 require a 7 year waiting period from date the sentence was satisfied, or the person was released from probation.
If you believe you may be eligible, or have questions regarding your eligibility to expunge your record, please call us at (316) 263-7596. We will be happy to schedule a free consultation to discuss your case with you.
The Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA). NHTSA claims that these tests provide reliable indicators of intoxication. These tests are categorized as “divided attention tests”. They are designed to see if a person can follow instructions, while at the same time being made to perform physical tasks. These tests are often administered in less than ideal conditions.
Because these tests are “standardized”, failure of a law enforcement to implement them in the prescribed standardized manner, compromises the validity of the results.
The SFST battery includes 3 divided attention tests, horizontal gaze nystagmus (HGN), walk and turn (WAT), and one leg stand (OLS) tests
1) Horizontal Gaze Nystagmus (HGN)
The HGN test requires a person to follow a stimulus, usually a pen or finger, with their eyes only. As the officer moves the stimulus from the center to the periphy of the person’s vision, the officer is looking for “lack of smooth pursuit”, and for an involuntary “jerking” or “twitching” of the person’s eyes, which is known as nystagmus. While alcohol consumption can in fact cause nystagmus, it can also be caused by over 80 other conditions unrelated to the consumption of alcohol.
Be aware that if a person moves their head during testing, that officers are trained to document this as evidence of impairment.
Evidence of HGN is not admissible for any purpose in Kansas Courts. The Kansas Supreme Court recently compared this test to a Ouija board or majic 8 ball, and dismissed it as “voodoo”.
2) Walk and Turn (WAT)
The Walk and Turn test commences with the officer placing the subject in the unnatural and uncomfortable position of standing on a line, right foot in front of left, touching heel to toe. The subject is required to stand in this position while the officer explains and demonstrates the rest of the test. If the subject steps out of this position, for whatever reason, that is one clue, two clues is considered failing. The remainder of the test consists of the subject walking 9 heel to toe steps down the line, performing a turn as instructed, and returning 9 heel to toe steps back up the line. During the test the officer is looking for clues such as using arms for balance, stopping while walking, stepping off the line, or missing heel to toe. The officer will not inform the subject how the test is scored, and generally will not give second chances because the NHTSA manual states “This test may lose its sensitivity if it is repeated several times”, i.e. if people figure out the game, it won’t work any more.
This test is designed for failure. If you are asked to perform this test, you should politely decline.
3) One Leg Stand (OLS)
The one leg stand test requires the subject to stand on one foot, and raise their other foot approximately 6 inches off the ground while pointing their toe. The person is required to stay in that position, and count by 1 thousands, until the officer tells them stop, which is supposed to be at 30 seconds. During this time the officer observes the subject to see if they use their arms to balance, sway, put their foot down or hop. If the subject does any of those things, the officer will use them as clues of impairment. During this test, the officer will also demand that the person “look at their foot”. The purpose of this is to take away the horizon, which will affect the person’s balance. You never see a high wire walker looking down. Two clues is considered a failing score on this test.
This test is designed for failure. If you are asked to perform this test, you should politely decline.
4) OTHER NONSTANDARDIZED TESTS
During his investigation, the officer may ask a subject to perform other tasks such as counting backwards from an arbitrary number such as 63-45, or may ask the person to recite the alphabet, without singing, from C-O. These tasks are designed to take you out of your comfort zone in hopes that you will make some sort of mistake that they can point to as evidence of intoxication
Another test officer’s sometimes request is the Rhomberg Balance Test. During this test, the subject is required to stand with their feet together, close their eyes, tilt their head backwards and attempt to touch their nose with the tip of their finger. The subject is then asked to estimate 30 seconds. The officer will use any deviation as evidence of impairment. Interestingly this test is designed to test for brain injuries, but according to Law Enforcement it can detect impairment.
If an officer requests that you perform any of these tasks, you should politely decline.
A Preliminary Breath Test is a field test done by using a small, hand held device that the officer has you blow into to determine whether you have been drinking. While refusing to take the Preliminary Breath Test will not result in license suspension, it is a traffic infraction, and you may be fined for refusing. In a DUI investigation, evidence of alcohol consumption through a Preliminary Breath Test would help support the officer’s probable cause to place you under arrest and to request you to submit to the evidential chemical test. You may be arrested based in whole or in part based on a PBT test result. The crime of Refusal cannot be based on a person’s failure to take a Preliminary Breath Test.
Prior to asking a subject to submit to a preliminary breath test, the officer is required to inform the person that:
- They do not have the right to consult with an attorney to decide whether or not to submit to the test
- That if they refuse it is a traffic infraction
- That further testing may be required
The officer is required to administer the preliminary breath test in accordance with the Kansas Administrative Regulations which are promulgated by the Kansas Department of Health and Environment. Failure to do so can result in inadmissibility for probable cause determinations.
Preliminary breath tests are not admissible in DUI trials in the State of Kansas.
If you feel that you are anywhere near the legal limit, you should politely decline to submit to a preliminary breath test.
If you have been arrested for DUI in Kansas, call us today at 316-263-7596 for a Free Case Evaluation. Let us use our years of experience and top legal strategies to help you.