DUI Info Center
What is a DUI?
In Kansas, there are two general ways to be charged with Driving Under the Influence (DUI). The first consisting of operating or attempting to operate a motor vehicle while having a breath or blood alcohol level of .08 or greater. The second is that you were unable to safely operate or attempt to operate a vehicle due to the ingestion of drugs/alcohol, or a combination of both. This incapability may be shown from 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 such a charge, you must be ready and able to:
- Demonstrate your lack of intoxication through independent witnesses or critical examination of the government's witnesses
- In depth analysis of the results of the breath or blood
- Careful scrutiny of the officer's precision and proficiency in administering the field sobriety tests
- Close examination of the training and experience of the persons who conducted any chemical tests
- Evaluate the constitutionality of the traffic stop, or contact by the officer, and the constitutionality of any search or seizure performed by the officer.
As with any criminal charge, the government bears the burden of proving the charge against you. Because of an 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 have become more severe.
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Administrative Proceedings
If you have been arrested for DUI, there are two distinct and separate aspects of your case, both of which are very important to address:
- The Criminal Charges which can result in fines, jail time, and the suspension and restriction of your driving privileges; and
- The Administrative Proceedings (civil-side) 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 this is your first DUI arrest or have a prior diversion and/or convictions, or have received a prior administrative suspension of your driving privileges; and (3) whether you are over or under 21 years of age at the time of the test failure/refusal. The time of suspension of driving privileges, depending on these factors, ranges from 30 days to permanent revocation of your driver's license. 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. If you are successful at this hearing, the administrative action against your driving privileges will be dismissed.
DC -27
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 10 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. Failure to request an in-person hearing will result in the hearing being held over the telephone. 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 30 days after the administrative hearing. 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
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Potential Criminal Penalties
The criminal aspect of a DUI includes fines, mandatory jail time, suspension of your driving privileges and the potential impoundment of your vehicle. The amount of fine and the length of the jail sentence are determined by the number of prior DUI convictions/diversions you have had during your lifetime. It no longer matters whether a prior conviction was outside of five years. 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 potential sentence is 48 hours to six months in jail, and a fine 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 restrictions. You will also be required to undergo a drug and/or alcohol evaluation and will have to complete whatever treatment is recommended by the evaluator.
Second Conviction: A second lifetime conviction for DUI is a Class A misdemeanor. The potential sentence is 90 days to one year in jail, and a fine between $1000.00 and $1500.00. Providing 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 potential sentence is 90 days to one year in jail, and a fine 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. Like a third conviction, there is a sentence of between 90 days and one year in jail, however 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 allowed). 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.
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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; 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.
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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 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, driving privileges can be suspended for one year.
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DUI Diversion
If you have never been convicted of DUI nor 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 essentially 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 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 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 is 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
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