Frequently Asked Questions about DUI

If I'm arrested for DUI what should I do?
When can a police officer stop a driver?
What are my rights to counsel if stopped by a police officer?
What rights must the police officer inform me of during a DUI arrest?
What should I say if a police officer asks whether I have been drinking?
What clues alert police officers to drunk drivers?
What kind of body language or physical appearance does an officer look for to detect if someone has been drinking?
How is a Preliminary Breath Test “PBT” different than a chemical breath test?
Should I take the field sobriety tests?
How do chemical tests compare and do I have a choice which to take?
Should I agree to take a chemical test for alcohol content?
What is Diversion?
What are the penalties for DUI conviction in Kansas?
I was served with a notice of license suspension after I took the chemical test. Is there anything I can do about the suspension?
Is a lawyer really necessary for DUI charges?

1. If I'm arrested for DUI what should I do?

First, you need to get out of jail which will mean posting bond. Bond may only require your signature “O.R. Bond”, or require that you pay cash or hire a bondsman.

Next, in order to ensure your rights are protected, you should call a DUI lawyer. There are legal steps that must be taken immediately to protect both your right to operate a motor vehicle and your rights concerning the criminal charge of DUI. A lawyer can provide guidance to set priorities and help you to make informed decisions.

2. When can a police officer stop a driver?

A police officer may pull over a driver for any observed mechanical or moving violation such as not wearing a seat belt, exceeding the speed limit, improper turn and when the officer has grounds to believe the driver may be committing a crime including DUI.

3. What are my rights to counsel if stopped by a police officer?

If the stop involves a DUI investigation, Kansas law does not require that you be allowed access to an attorney until you have completed the breath/blood/urine tests requested by the officer. In the event you refuse these tests, the officer need not make an attorney available unless the officer starts to question you after being placed in custody. After a test has been administered by the officer, you may ask to call your attorney who may advise you of your right to take an independent alcohol content test depending on the circumstances of your alleged DUI.

4. What rights must the police officer inform me of during a DUI arrest?

Prior to requesting you to submit to testing to determine your alcohol level, the officer must advise you of the Kansas “implied consent law” which explains your rights concerning these tests including that a refusal to take the chemical test will result in some type of driver's license suspension.

Failure to properly provide the “Implied Consent” may be a legal point your lawyer can use in defending your case.

While a police officer should inform you of your Fifth Amendment right against self-incrimination or give a Miranda warning, this is not required, and many officers do not read you your rights. This affects your case to the degree that any questions asked of you after being placed in custody may not be used by the prosecution. However, failure to give you Miranda warnings will not prevent the prosecutor from using your voluntary statements made after being placed in custody.

5. What should I say if a police officer asks whether I have been drinking?

Unless you can truthfully say you have not been drinking, your best response would be to decline to answer the question.

6. What clues alert police officers to drunk drivers?

Police officers are trained in DUI detection and to observe certain driving characteristics in order to make a legal stop of a driver suspected of driving drunk. The officer’s training is often based on standards set by the National Highway Traffic Safety Administration. Driving clues that may be typical of driving under the influence of alcohol or drugs include: weaving in a lane, abrupt unwarranted swerving, erratic braking, rapid acceleration or deceleration, crossing the center line, driving without headlights, illegal or sudden turning, tailgating, unreasonable stopping, slow reaction to traffic lights, near collision, and bodily or physical mannerisms that indicate intoxication.

7. What kind of body language or physical appearance does an officer look for to detect if someone has been drinking?

There are a number of things that police officers are trained to look for: slurred speech; alcohol on the breath; swaying when standing; disorientation, combative, euphorically happy, or inappropriate behavior; unable to follow instructions and a red or flushed complexion.

8. How is a Preliminary Breath Test “PBT” different than a chemical breath test?

A Preliminary Breath Test is a field test done by using a small, hand held device that the officer has you breathe into to indicate whether you have been drinking. This is not the formal chemical test referred to during a DUI investigation which has a much higher degree of accuracy. While refusing to take the Preliminary Breath Test will not result in license suspension, you may be fined for refusal. In a DUI case, evidence of alcohol use through a Preliminary Breath Test would help support the officer’s request for you to submit to the chemical breath test.

9. Should I take the field sobriety tests?

No, you should not for the reason that you are not required by law to take field sobriety tests and refusing to do so results in no penalties. Many sober people cannot pass these tests anyway, and submitting to these tests would only help the prosecutor to build a stronger DUI case against you.

10. How do chemical tests compare and do I have a choice which to take?

There are three chemical tests used for testing drunk driving:

Blood test - drawing a blood sample is the most accurate of the three tests to measure blood alcohol concentration (BAC) and will work to your advantage if you have not been drinking alcohol.

Breath test - generally done with an intoxilyzer, the next most reliable test, although accuracy depends on the correct administration of the test.

Urine test - the least accurate of the three tests and the most easily discredited in court. If you believe your BAC is above .08, this test is likely to work mostly in your favor.

Under Kansas law, you do not have a choice as to which type of chemical test you take. The officer will ask you to submit to one or more of the three types above. If you decline to take the any test offered by the officer, you will be regarded as a refusal, and your license will still be suspended.

11. Should I agree to take a chemical test for alcohol content?

Your decision on whether or not to take the chemical test must be evaluated against:

How much alcohol you have consumed
The probability of a test result of .08 or greater
The consequences of refusing the test.

Under Kansas law, the penalties for refusing a chemical test are as follows:

First Offense - one year suspension of your driver's license
Second Offense - two year suspension of your driver's license
Third Offense - three year suspension of your driver's license
Fourth Offense - ten years suspension of driver's license
Fifth Offense - lifetime revocation of your driver's license

Another fact to consider is that the prosecutor may use either the test failure or the test refusal against you as evidence of guilt during trial.

12. What is Diversion?

Diversion is an agreement worked out with the prosecution to divert the DUI charges. Diversion is usually contingent upon whether the defendant does the following:

Pays diversion fees, court costs and alcohol evaluation costs
Attends Alcohol Information School
Commits no illegal activity during the diversion term which is generally 1 year
After completion of the Diversion, the charges are dismissed with prejudice.

Diversion is noted on your driving record for life. If you are ever charged with another DUI, the offense will be regarded as a second offense despite the fact that the first offense was dismissed through an agreement with the prosecution.

13. What are the penalties for a DUI conviction in Kansas?

First DUI Offense:

Administrative Penalty by the Division of Motor Vehicles

License Suspension - a suspension of driving privileges between 30 days and 1 year, and restriction up to 1 year which may require the use of an interlock ignition devise. An interlock ignition devise is a devise installed on the motor vehicle which tests the driver for alcohol consumption prior to allowing the vehicle to start.

Criminal Penalties

Jail sentence - from 2 days to 6 months; the judge has the discretion to substitute 100 hours of community service for the 2-day jail sentence

Fine - from $500 to $1,000

Second DUI Offense:

Administrative Penalty by Division of Motor Vehicles

License Suspension - a suspension of driving privileges for at least one year followed by at least 1 year restrictions requiring the use of an interlock ignition device.

Criminal Penalties

Jail sentence - 5 days to 1 year with possibility of house arrest or work release after serving 48 hours in jail, if the court deems appropriate

Fine - $1,000 to $1,500

Third DUI Offense

Administrative Penalty by Division of Motor Vehicles

License Suspension - a suspension of driving privileges for at least one year followed by at least 1 year restrictions requiring the use of an interlock ignition device.

Criminal Penalties

Jail sentence - 90 days to 1 year with possibility of house arrest or work release after serving 48 hours, if the court deems appropriate

Fine - $1,500 to $2,500

Fourth and Subsequent DUI Offenses

Administrative Penalty by Division of Motor Vehicles

License Suspension - a suspension of driving privileges for at least one year followed by at least 1 year restrictions requiring the use of an interlock ignition device.

Criminal Penalties

Jail sentence - 90 days to 1 year with possibility of work release after serving 72 hours, if the court deems appropriate

Fine - $2,500

Parole - 1 year Post Release supervision by KDOC, including completion of any drug/alcohol treatment program KDOC deems necessary

14. I was served with a notice of license suspension after I took the chemical test. Is there anything I can do about the suspension?

Yes. You have 10 days after being served the notice to request a hearing. The hearing will determine whether your license will be suspended or restricted. However, if you fail to request a hearing within 10 days, you forfeit your right to challenge the administrative suspension/restriction of your driver's license.

15. Is a lawyer really necessary for DUI charges?

While you can always represent yourself, because penalties for a DUI conviction are quite severe there is a lot that an experienced DUI attorney can do for you that you may not know how to do if representing yourself. Suppressing evidence, compelling discovery, obtaining a dismissal of the DUI charge, negotiating a reduced sentence as well as analyzing chemical tests for accuracy and procuring expert witnesses to testify on your behalf are just some of the professional tasks a lawyer can perform that you probably cannot. An attorney is also skilled in contesting issues during the administrative hearing for license suspension.

A DUI is a serious criminal case which involves following complex procedural rules, presenting evidence, and protecting constitutional rights; as well as following administrative and sentencing guidelines. It is a wise decision to put your case in the hands of an experienced DUI lawyer.