Administrative Proceedings
If you are arrested for DUI and served a DC27 form (temporary license), you have the right to request an administrative hearing. This request must be made in writing and be submitted within 14 days of service of the form.
Hulnick, Stang, Gering & Leavitt offers free consultations to help you learn more about how to proceed with requesting your hearing.
CDL holders can also benefit from an administrative hearing, as their livelihood is based on their ability to drive.
Drivers under 21 years of age may be served with a DC28 if their BAC is between .02, and .08. They are also entitled to request a hearing, which must be done within 14 days of the date of service.
Once you request 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 will be no administrative suspension. If the hearing officer does not rule in your favor, your suspension will commence 30 days after the administrative hearing date.
At this hearing, you are able to challenge:
- Whether law enforcement violated your constitutional rights
- Whether the officer possessed reasonable grounds to request a chemical test
- The accuracy of the testing equipment, procedures, and handling of the situation
- Whether your arrest was valid
- Various technical issues regarding notice and service
CDL Holders & DUI
Commercial drivers who are operating a commercial vehicle are held to a higher standard of conduct. For these drivers, the legal BAC limit is .04 — half of the limit for non-commercial drivers.
Juvenile Drivers & DUI
Those between ages 14 – 18 who are charged with DUI will be tried in an adult court instead of a juvenile court. However, their sentences cannot exceed 10 days and must be served in a juvenile detention facility.
Expungement of DUI Convictions
Part of the challenge of a criminal record is that other interested parties can see it. While your charges cannot be erased entirely, expungement allows your criminal history to be hidden from those who do not need to know, allowing you to apply for jobs without having to disclose any criminal convictions.
The criteria change often in Kansas for a person’s eligibility for expungement. Today, a person convicted of a DUI will need to wait five years on a first offense and 10 years on any subsequent offense before applying to have their charges expunged. For past DUI convictions, the waiting period will vary depending on when the arrest took place, so call Hulnick, Stang, Gering & Leavitt for a free consultation to learn more.
Field Sobriety Tests
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 law enforcement to implement them in the prescribed standardized manner compromises the validity of the results.
The SFST battery includes three divided-attention tests, horizontal gaze nystagmus (HGN), walk and turn (WAT), and one leg stand (OLS) tests.
The SFST battery includes three divided-attention tests:
- 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 periphery 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, 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 Magic 8 Ball and dismissed it as “voodoo.”
- 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 nine heel-to-toe steps down the line, performing a turn as instructed, and returning nine 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.
- One Leg Stand (OLS): The OLS 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 one-thousands until the officer tells them stop, which is supposed to be after 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.
- Other nonstandardized tests: You may be asked to perform arbitrary tasks such as counting backwards in a series of numbers or reciting the alphabet to make you unsure of your ability to complete them. This doubt is meant to be used as evidence of your intoxication. Another test called the Rhomberg Balance Test asks people to stand with feet together and eyes closed while their head is tilted back. It is meant to check for brain injuries, but is sometimes used to check for intoxication. You should politely decline to perform these tasks if you are asked.
Preliminary Breath Test
A preliminary breath test (PBT) is a field test done by using a small, handheld device into which the person blows air to determine whether they have been drinking. While refusing to take the preliminary breath test will not result in license suspension, such refusal may be used in a hearing to determine whether the officer had probable cause to request a chemical test. In a DUI investigation, evidence of alcohol consumption through a preliminary breath test may be used to 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 on results from a PBT.
The officer is required to administer the preliminary breath test in accordance with the Kansas Administrative Regulations, which are implemented 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 I’m arrested for DUI or Refusal, what should I do?
First, if you have submitted to a breath test or blood test, at the completion of testing you have the right to contact your attorney. Exercise that right. Second, you need to get out of jail, which will mean posting bond. Bond may only require your signature, as in an O.R. bond ("own recognizance" release), or it may 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 privilege to operate a motor vehicle and your rights concerning the criminal charge of DUI. Remember, you only have 14 days to request an administrative hearing. A lawyer can provide guidance to set priorities and help you to make informed decisions.
What should I do if I’m stopped for DUI?
If you are stopped by law enforcement and believe you will be investigated for DUI, your goal is to provide the government with as little evidence as possible.
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. You have the right to remain silent — exercise it.
Should I take the field sobriety tests?
No, you should politely decline. Despite what law enforcement may tell you, you are not required to take these tests. If you do take these tests, your performance will more than likely be used against you in court. These tests are subjectively and arbitrarily scored by the officer, and most people will fail these tests even when completely sober. Submitting to these tests will more than likely only help the prosecutor to build a stronger DUI case against you.
Contact us for your free consultation.
Should I take a Preliminary Breath test?
If you believe you are anywhere near the legal limit, you should politely decline, as an officer may rely on the result in whole or in part to arrest you. Even if you blow under the legal limit, experience says you will still probably be arrested and requested to submit to a blood breath or urine test.
Refusing a preliminary breath test does not result in any suspension or restriction of your driving privileges.
Should I agree to take a chemical test for alcohol content?
We get asked this question constantly, and there is really not a definitive answer, as it is dependent on factors present at the time the request is being made. If you believe that you will test under the legal limit, you should submit to testing, as a test under the legal limit may preclude charges being filed and will not result in an administrative action against your driving privileges.
If you believe you will test over the legal limit, the answer is more complicated. While it may be more difficult to prove a criminal DUI charge without a BAC number, you will face a longer period of suspension and ignition interlock for refusing during the resulting administrative proceeding. Refusal also requires a longer waiting period to modify a suspension imposed from the administrative action and does not preclude the government from charging you with DUI under the common law theory.
Submitting to testing will generally lessen the administrative penalties but will make it easier to prove a DUI charge.
It is a bit of a catch-22; there is no right answer to this question.
What clues alert police officers to drunk drivers?
Police officers are trained to observe certain driving characteristics in order to make a legal stop of anyone suspected of DUI.
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
- Bodily or physical mannerisms that indicate intoxication
It is not uncommon for officers to wait near bars to catch patrons who leave at closing.
When can a police officer stop a driver?
A police officer may pull a driver over for any observed mechanical or moving violation.
These could include:
- Not wearing a seat belt
- Exceeding the speed limit
- Improper turn
- Equipment violations such as no tag light or a broken tail lamp
- Texting
An officer may also stop a driver when the officer has grounds to believe the driver may be committing any crime, including DUI.
What are my rights to counsel if stopped by a police officer?
If the stop involves a DUI investigation, Kansas law does not grant you access to an attorney until you have completed the breath/blood/urine tests requested by the officer. Should you refuse, the officer need not make an attorney available unless they begin to question you after being placed in custody.
After a chemical test has been administered by the officer, they must allow you 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.
What rights must the police officer inform me of prior to requesting a chemical test?
Prior to requesting a blood, breath, or urine test to determine your alcohol level, the officer must advise you of the Kansas “Implied Consent Advisories,” which explain your rights concerning these tests.
Failure to properly provide the “Implied Consent Advisories” 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 (Miranda Warning), this is not required, and many officers do not read you your rights. While this can affect your case, failure to give you Miranda warnings will not prevent the prosecutor from using your voluntary statements made after being placed in custody.
Remember: Exercise your right to remain silent!
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.
These include:
- Slurred speech
- Alcohol on the breath
- Bloodshot, watery, or glazed eyes
- Fumbling when retrieving license
- Swaying when standing
- Leaning on a car or other object
- Disorientation, combative, euphorically happy, or inappropriate behavior
- Inability to follow instructions and a red or flushed complexion
Is a lawyer really necessary for DUI charges?
While you can always represent yourself, the penalties for a DUI conviction are quite severe, and there is a lot that an experienced DUI attorney can provide that you may not know.
An experienced Wichita criminal defense lawyer understands how to proceed in:
- Suppressing evidence
- Compelling discovery
- Obtaining a dismissal of the DUI charge
- Negotiating a reduced sentence
- Analyzing chemical tests for accuracy
- Procuring expert witnesses to testify on your behalf
An attorney is also skilled in contesting issues during the administrative hearing for license suspension.
DUI is a criminal case that involves complying with complex procedural rules and presentation of evidence and protecting constitutional rights. You must be well-versed in following and applying administrative and sentencing guidelines. It is always a wise decision to put your case in the hands of an experienced DUI lawyer.
Get over 80 years of combined experience on your side. Dial (316) 665-7227 now.
