(785) 273-1141Doug@KansasDUI.com • 5891 SW 29th, Topeka, KS  66614

Being arrested for DUI in Kansas is a serious offense. The penalties can be severe. Doug Wells is uniquely qualified to represent clients with DUI arrests, or driver's license issues. See his resume/vitae for a summary of his qualifications.


Deadlines & Requirements

What is a "diversion"?


Kansas Impaired Driving Laws

COMMON ACRONYM(S) USED TO DESCRIBE "DRUNK DRIVING":

Driving under the influence (DUI), driving while impaired (DWI), operating under the influence (OUI)


SOURCE OF LAW:

State criminal law is found at K.S.A. 8-1567. Many municipalities have adopted the Standard Traffic Ordinances (STO), wherein the DUI ordinance is found at STO § 30, which is very similar to the state statute. Driver's license law and administrative procedures are found at K.S.A. 8-1001 et. seq.  Criminal refusal of blood, breath, or urine test is found at K.S.A. 18-1025.


PROHIBITED VEHICULAR ACTIVITY:

You may not "operate or attempt to operate any vehicle." while under the influence of alcohol and/or drugs or with a breath test of .08 or greater. Operate is defined to mean driving, which may be proven by circumstantial evidence. Driving requires movement of the car whereas attempting to drive requires trying to move the car but failing or being incomplete.


COVERED VEHICLES OR DEVICES: 

Kansas statute covers a "vehicle", which means a motor vehicle. Municipalities can broaden the definition of covered devices, with the City of Wichita even outlawing non-motorized devices.


COVERED LOCATIONS:

Public or private property.


IMPAIRED DRIVING OFFENSES: 

  1. Driving or attempting to drive with an alcohol concentration in the person's blood or breath as shown by competent evidence is .08 or more. 
  2. Driving or attempting to drive with an alcohol concentration of the person's blood or breath is .08 or more as measured within 3 hours of time of operating or attempting to operate a vehicle. 
  3. Driving or attempting to drive while under the influence of alcohol to the degree that renders the person incapable of safely driving a vehicle. 
  4. Driving or attempting to drive under the influence of any drug or a combination of drugs to a degree that renders the person incapable of safely driving a vehicle. 
  5. Driving or attempting to drive under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.  

ALTERNATIVE PLEADING: 

The first 3 categories of driving under the influence of alcohol found in the preceding section may be alternatively pled. An alternative pleading means the prosecutor can try to convict you of DUI in more than one way.


DEGREE OF IMPAIRMENT REQUIRED: 

The person must be under the influence of alcohol alone, drugs alone, or the combination of alcohol and drugs to a degree that renders them incapable of safely driving.


PENALTIES FOR DUI OFFENSES: 

  1. 1st conviction: Class B misdemeanor. Jail-minimum 48 consecutive hours in jail to maximum 6 months or 100 hours of public service. Fine $750.00 to $1000.00, alcohol evaluation - $150.00, alcohol classes - $150.00, court costs, regular driver's license suspended and restricted to interlock device as identified in the driver’s license penalties section of this summary of the laws. CDL revoked 1 year.
  2. 2nd offense: Class A misdemeanor. Jail-minimum of 90 days that may be paroled to 5 consecutive days to maximum 1 year, house arrest or work release may be granted after 48 consecutive hours imprisonment, minimumfine of $1250.00 to maximum of $1750.00, alcohol evaluation - $150.00, treatment, court costs, regular driver's license suspended and interlock as described in the driver’s license penalties section of this summary of the laws, CDL permanently revoked
  3. 3rd offense: Is considered Class A misdemeanor if you have not been convicted of DUI within preceding 10 years. It is considered a non-person felony if you have been convicted of DUI within preceding 10 years. Jail-minimum 90 consecutive days to maximum 1 year. House arrest or work release may be granted after 48 consecutive hours for a 3rd offenseMinimum fine $1750.00 to $2500.00 maximum, treatment, costs, regular driver's license – driver’s license suspension and interlock as described in the driver’s license penalties section of this summary of the laws, CDL - permanent revocation. 
  4. 4th and greater offense: non-person felony. Jail-90 days minimum and 1 year maximum, work release or house arrest may be ordered after 72 consecutive hours imprisonment, $2500.00 fine, costs, treatment, regular driver's license - suspension followed by interlock as described in the driver’s license penalties section of this summary of the laws. CDL-permanent revocation. 
  5. If person convicted of DUI has one or more child under age of 14 years in the vehicle at the time of the offense, the punishment is enhanced by one month consecutive, not to exceed maximum sentence allowable.  

CRIMINALIZATION OF REFUSALS:  

For driving incidents on or after July 1, 2012, a person refusing a breath, blood, or urine test requested by an officer may be convicted of a criminal offense of refusal if they have a prior administrative test refusal on or after July 1, 2001 and if they were 18 years of age or older or if they have previously been convicted of DUI on or after July 1, 2001 and if the person was 18 years or older when convicted. 


PENALTIES FOR CRIMINAL REFUSAL: 

  1. 1st conviction: Class A misdemeanor. Minimum jail 90 days – maximum 1 year jail – may be paroled to serve 5 consecutive days before probation. Fine $1250.00 to $1750.00. Alcohol evaluation - $150.00. Court costs and costs of school or treatment. House arrest and work release may be granted after 48 consecutive hours. 
  2. 2nd offense: Class A misdemeanor if no prior conviction within 10 years. Non-person felony if prior conviction within 10 years. Jail – minimum 90 consecutive days to maximum 1 year. House arrest and work release may be granted after 48 consecutive hours. Fine $1750.00 to $2500.00. Community Corrections or Court Services may be ordered with 1 year mandatory supervision. Court costs and treatment costs. 
  3. 3rd or subsequent criminal refusal. Non-person felony. Jail – 90 days to 1 year. Must serve 90 consecutive days before probation or parole. Work release, or house arrest may be ordered after 72 hours incarceration. Fine $2500.00.
  4. May obtain diversion for 1st offense. 
  1. If person has one or more child under age of 14 years in the vehicle at the time of the offense, the punishment is enhanced by one month consecutive, not to exceed maximum sentence allowable. 

DIVERSION: 

This form of deferred prosecution is offered for person never having been diverted or convicted of DUI who was not involved in an accident involving personal injury or death. Some counties and municipalities have other rules and some do not offer a diversion. Costs and terms of diversions vary but typically include a diversion fine of $750.00, an application fee, the evaluation, classes or treatment, court costs, and supervision fee. Driver's license is not suspended based upon the criminal court casealthough it can be suspended by ancillary administrative action. According to a Kansas Attorney General Opinion, CDL drivers are not eligible for diversion.


ADMINISTRATIVE DRIVER'S LICENSE PROCEEDINGS:

You have a period of 14 calendar days to make a written request to the Kansas Driver Control Bureau for an administrative hearing. This is completely separate and independent from the DUI criminal case. If you do not make this written request, your driver’s license will be suspended and restricted by an interlock device 30 days after you receive the pink “Law Enforcement Officer’s Certification,” DC-27 form. You must pay a $50.00 fee payable to the Kansas Department of Revenue at the time you make the written request for driver’s license hearing.  In the hearing request, you should request the subpoena of officer who signs the pink Officer’s Certification and should request a “in-person hearing”, not by telephone. 

If you lose the administrative driver’s license hearing, the administrative driver’s license suspensions and restrictions are served concurrently, at the same time, as the criminal driver’s license sanctions. An “occurrence” means a test refusal, test failure, DUI diversion, or DUI conviction, with multiple occurrences on the same driving date counting as one occurrence.


DRIVER’S LICENSE PENALTIES:

The driver’s license penalties that apply to a regular driver’s license are as follows: 

ADMINISTRATIVE REFUSAL BEFORE 07-01-12

  Suspend Interlock
First 1 year 1 year
Second 1 year 2 years
Third 1 year 3 years
Fourth  1 year 4 years
Fifth +  1 year 10 years**

ADMINISTRATIVE REFUSAL EFFECTIVE 07-01-12

  Suspend Interlock
First 1 year 2 year
Second 1 year 3 years
Third 1 year 4 years
Fourth  1 year 5 years
Fifth +  1 year 10 years**

DUI OR REFUSAL CONVICTION OR ADMINISTRATIVE FAILURE UNDER .15 

  Suspend Interlock
First 30 days 180 days or 1 year*
Second 1 year 1 year
Third 1 year 2 year
Fourth  1 year 3 year
Fifth +  1 year 10 years**

ADMINISTRATIVE FAILURE OR CONVICTION – .15 OR GREATER

  Suspend  Interlock
First 1 year 1 year
Second 1 year 2 years
Third 1 year 3 years
Fourth  1 year 4 years
Fifth +  1 year 10 years**

 

* 1 year interlock if prior conviction of open container, minor in possession, or driving while habitual offender, or if 3 or more moving violations within 12 month period or if DUI ticket occurred when license revoked, suspended, cancelled or withdrawn.  

** May petition Court to reduce 10 year interlock to 5 year interlock if proof: 

  • No conviction for driving on suspended or revoked license during 5 years 
  • Installation, maintenance, and use of ignition interlock device during 5 years 
  • There is no other reason for suspension or revocation of license

Driver’s license penalties if the driver is under 21 years of age are as follows: 

  • 1st test over .02 but less than .08 – 30 day suspension and 330 day unrestricted interlock. 
  • 2nd or greater over .02 but less than .08 – 1 year suspension. 
  • All penalties for test refusal, DUI or refusal convictions, and administrative failures of .15 or greater are the same as for an adult. 

A licensee who is restricted by an interlock order must carry the interlock order with him or her when driving.


CALCULATING WHICH NUMBERED OFFENSE YOU ARE CHARGED WITH: 

For a criminal DUI charge or a criminal refusal charge, prior convictions or diversion for DUI must have occurred after July 1, 2001. The following convictions count as a prior occurrence if it occurred during a person’s lifetime: criminal refusal, commercial DUI, boating DUI, DUI manslaughter, aggravated vehicular homicide, vehicular battery DUI, and Code of Military Justice DUI. 


APPLICATION TO MODIFY DRIVER’S LICENSE SUSPENSION:

A “restricted interlock” may be obtained to replace a portion of the driver’s license suspension. It is different than the “unrestricted interlock” which follows the original term of the suspension. During the period of the unrestricted interlock, you may drive anywhere at anytime as long as you have an interlock in your vehicle. During the unrestricted interlock time, you may drive your employer’s vehicle without an ignition interlock during normal business activities if you do not partially or entirely own or control your employer’s vehicle or business. Restricted interlock may be obtained as follows: 

  • 1st administrative refusal: after 90 days of suspension you may apply for restricted interlock to or from a person’s employment, or schooling, in the course of employment, during a medical emergency, or to or from probation or parole meetings, drug or alcohol counseling, or alcohol and drug safety action programs.
  • 2nd or greater administrative refusal: after 90 days of suspension, you may apply for restricted interlock privileges for the remainder of the year to permit driving to and from (not during) work, school, alcohol treatment, and interlock provider for maintenance or downloading of data. 
  • 1st administrative test failure or 1st conviction for DUI or conviction for criminal refusal: may apply for restricted interlock after 45 days for remainder of the 1 year suspension to or from a person’s employment or schooling, in the course of employment, during a medical emergency, or to or from probation or parole meetings, drug or alcohol counseling, or alcohol and drug safety action programs. 
  • 2nd or greater administrative failure or conviction for DUI or conviction for criminal refusal: may apply for restricted ignition interlock effective 45 days after suspension to permit driving to and from (not during) work, school, alcohol treatment and interlock provider for maintenance or downloading of data. 
  • A $100.00 application fee must be paid with all applications for restricted interlock. 
  • The application for restricted interlock may and should be made as soon as the suspension starts. It cannot become effective until the 45 day or 90 day waiting period has passed, however it can begin being processed in the bureaucracy.  Once the application is acted on, you are given permission to get an ignition interlock device but cannot get the restricted interlock privileges until you provide proof that you have installed the ignition interlock.
  • The application for restricted interlock requires the filing of a DC-1015 form, which can be found at http://www.ksrevenue.org/pdf/dc-1015.pdf. This form should be completed for requesting “restricted interlock”. The DC-1014 is the application drivers should complete if they want to get credit against the interlock time for a suspension already received in excess of a year. The DC-1014 form can be found at  http://www.ksrevenue.org/pdf/dc1014.pdf. Whenever a DC-1014 is filed, you should also file a DC-1015. Please read the instructions carefully.     

STATUTORY PRESUMPTIONS: 

Breath test of .08 or greater is prima facie, presumptive evidence that under the influence to the degree that renders a person incapable of safely driving. Breath test below .08 may be considered.


IMPLIED CONSENT LAWS:

  1. Test permitted: blood, breath, urine, or saliva - one or more samples as designated by law enforcement officer 
  2. Type of advisement required - statutorily defined implied consent advisory must be given in writing and verbally 
  3. The test result or test refusal may be considered in court.

BLOOD DRAW: 

Blood must be drawn by a person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person, a registered nurse or licensed practical nurse, or any qualified medical technician, including but not limited to, an emergency medical technician-intermediate or mobile intensive care technician or a phlebotomist. It is important to remember as much as you can about how the blood was collected, who collected it, how it was sealed, what type of antistatic was applied, and what happened to the blood tube.  


POST-TEST RIGHTS: 

After the completion of testing, you are entitled to consult with an attorney or obtain an independent test. The original sample is not required to be saved.


PLEA BARGAINING: 

Prohibited for purpose of reducing mandatory penalties of conviction. It is your attorney’s goal to show the prosecutor that the case should not be prosecuted based upon the facts, law, or testing science.


“I am still overwhelmed by your brilliant advocacy Tuesday afternoon. While I realize the proceedings were short, they turned out that way because of your scholarship, and I simply cannot find words to express my gratitude.” - Client

“At this time I would like to take the opportunity to express my appreciation for your dedication and professionalism regarding my case. I won’t hesitate to refer you to anyone who needs assistance of this type in the future. Also, I would like to express my thanks to your secretary. She was always helpful and kind to me. Again, thank you both for your help” - Client

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