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.
Administrative Procedure
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
