Overview of Kansas DUI Law
The legal grounds for a DUI charge in Kansas involve two factors. You must be driving a motor vehicle while impaired or you must have a blood alcohol concentration (BAC) level of greater than 0.08 percent by weight of the blood.
With respect to BAC, the amount of alcohol in your body must equal at least 0.08 parts of alcohol per 1,000 parts of blood. If your blood is measured in grams, it must equal at least 0.08 grams of alcohol per 100 milliliters of blood. In this case, you have effectively met the state’s legal definition of "intoxication" for a DUI charge.
In addition, you can face charges for violating Kansas DUI laws if you are in physical control of a vehicle, even if the vehicle is not running. As long as the vehicle is on a public road or highway, and is not parked in a designated parking structure, you can face drunk driving charges.
It is important to note that "vehicle" and "motor vehicle" are not used interchangeably in Kansas DUI law . A "vehicle" can be any conveyance, which means that bicycles and public transportation fall under the same DUI laws as motor vehicles. For instance, if you are traveling home from a bar on the trolley, you can still be arrested for drunk driving.
As mentioned above, "motor vehicle" has a much narrower legal definition in Kansas. Motor vehicles are defined as passenger vehicles, campers, vans, trucks and buses.
The penalties for a DUI conviction in Kansas depend on multiple factors, including whether you are a repeat offender and how high your BAC was at the time of testing. For example, first-time offenders with a BAC of less than 0.15 percent typically face up to 6 months in jail, a fine of up to $1,000 and a 30-day driver’s license suspension. Repeat offenders, meanwhile, face up to one year in prison, fines up to $1,750 and a one-year driver’s license suspension.
Kansas DUI Penalties
Kansas imposes a range of penalties for DUI, based on the number of DUI convictions the driver has received.
1st offense – A person convicted of a DUI for the first time may be sentenced to a fine of $1,000 and be ordered to complete 100 hours of community service. The person’s driving privileges will be suspended for at least 30 days and, unless the person completes a multiple-offender alcohol treatment program, such a suspension may last as long as a year.
2nd offense – A person who is convicted of a DUI for a second time may be sentenced to serve up to a year in jail and to pay a fine of $1,750. If the person’s driving privileges have already been suspended due a prior DUI, the court may additionally suspend the person’s driving privileges for two years.
3rd offense – For a third DUI conviction, a person may be sentenced to serve 90 days to a year in jail and to pay a $2,500 fine. Unless the person completes a multiple-offender alcohol treatment program, the court will suspend the person’s driving privileges for at least a year, but may also permanently revoke them.
4th offense – For a fourth or subsequent DUI conviction, a person may be sentenced to serve at least 90 days but no more than two years in jail and to pay a fine of $2,500. In addition, the person’s driving privileges will permanently be revoked.
Aggravating Circumstances for a Kansas DUI Offense
Both the Kansas DUI and the Kansas Implied Consent law provide for enhanced punishment if certain aggravating factors are present. If one or more of the following factors are present, your offense becomes a Felony rather than a Misdemeanor. These are:
1. An aggravating circumstance is defined in K.S.A. 8-1567. They include:
a. The defendant is over the age of 18 and commits a second or third DUI conviction within five years of the first conviction.
b. The defendant is over the age of 18 and commits a fourth or subsequent DUI conviction within 10 years of the first conviction.
c. The defendant operates a vehicle during or in conjunction with a vehicle accident which resulted in bodily injury or death to another person.
d. The defendant operates a vehicle with a child who is 14 years of age or less as a passenger in the vehicle.
e. The defendant operates a vehicle while knowingly transporting a person who has an open container of alcoholic liquor or cereal malt beverage in the passenger compartment of the vehicle.
A "Second conviction" is defined in the statute (K.S.A. 8-1567) as occurring when the defendant has plead guilty or has been found guilty, within five years of the date of the crime charged under: K.S.A. 8-156720(a), or a person from another state whose statute is substantially similar; K.S.A. 65-4082, or a person from another state whose statute is substantially similar; K.S.A. 65-4063, or a person from another state whose statute is substantially similar; any federal or military law on the subject, or a person from another state whose statute is substantially similar; or a local ordinance prohibiting the acts prohibited by K.S.A. 8-1567(a).
A "Third conviction" is defined as occurring when: the defendant has plead guilty or been found guilty, within five years of the date of the offense charged under K.S.A. 8-1567(a), or a person from another state whose statute is substantially similar; K.S.A. 65-4082, or a person from another state whose statute is substantially similar; or K.S.A. 65-4063, or a person from another state whose statute is substantially similar; or a person from another state whose statute is substantially similar; or a local ordinance prohibiting the acts prohibited by K.S.A. 8-1567(a).
The penalty for a second conviction is a Misdemeanor, the penalty for a third conviction is a Felony.
Implied Consent and Testing
A critical facet of Kansas DUI law is what is known as "implied consent". In essence, the implied consent law holds that anyone who operates a motor vehicle on Kansas roadways has implicitly consented to blood, breath or urine testing – if stopped by law enforcement on suspicion of driving under the influence. This means that police may require drivers to provide a breath, blood or urine sample if they are lawfully arrested for a DUI.
Any driver in Kansas who is arrested for DUI cannot refuse to take a test; Kansas’ implied consent law means that your consent is already assumed. Instead, drivers who refuse a test will face serious criminal and administrative penalties – which are explained in more detail below.
If a test is requested, drivers have a right to choose a blood, breath or urine test to be administered. The sampling procedures are fairly straightforward.
Blood tests are processed in two ways. If you are in a medical setting, such as a hospital or treatment center, the blood is drawn in a sterile environment by a qualified professional. If there is no medical need for a test, however, the arresting officer shall take a sample by a finger-stick at the jail.
A breath test simply requires a driver to blow into a device as directed by the officer. Urine tests are administered at the jail, by the officer’s discretion.
Regardless of how the test was administered, results will usually be made available to you within 30 days. You can request that the test results be made available to your attorney and the district attorney. You must then hire a lawyer to appear at an administrative hearing to determine if the license suspension should be set aside. If you fail to appear, you lose your appeal of the implied consent suspension.
Drivers can be penalized for refusing a test. Any driver who refuses to test will have their driving privileges suspended for two years, and will also face criminal and administrative penalties. This is true whether the driver is found guilty of DUI or not.
Following a refusal, the arresting officer will issue your suspension order, as well as form TR-45A (Driver’s License Restoration Requirements). This paperwork must be returned to the Department of Revenue (DOR) within 10 days of issuance. Failure to return the order within 10 days will result in automatic two-year suspension.
Any driver whose license has been suspended in this way has the right to an administrative hearing which must occur within 30 days of the notice of suspension. Within 120 days of the arrest, the hearing must conclude. A DOR decision letter will be mailed, informing you if your suspension was sustained or set aside.
If the suspension is sustained, the driver must have an interlock device put on their vehicle or apply for a limited purpose permit (LPP) to drive without the interlock. This application must be filed within 60 days of the suspension. A suspension will stay in effect unless:
Any driver who has received a blood alcohol concentration (BAC) of .08 or more on a breath, blood or urine test will automatically be given a two-year suspension, even if the test is shown to be wrong later on.
If you need help decoding Kansas’s DUI laws, spending 10 minutes with an experienced Kansas drunk driving defense attorney may be well worth the cost.
Possible Legal Defenses for Kansas DUI
For anyone facing DUI charges, the first course of action should be to consult with an experienced Kansas DUI attorney. However, here are some of the more common legal defenses used in Kansas DUI cases to challenge these difficult charges.
Challenge Whether You Were Driving at All
If you weren’t actually driving a vehicle of any kind – car, truck, or bicycle – then there’s no reason for the police to have pulled you over in the first place. At the police station, if the officer failed to note anything significant about your driving in the police report, that might be a problem for their case against you. If the officer has some notes or another reason to believe you were driving, but the evidence is conflicting, that might be sufficient to provide you with a viable defense to your charges.
Challenge the Basis for the Traffic Stop
Even when a person consented to being stopped for DUI, consent is not needed; rather, an officer must have a "reasonable suspicion" that a traffic or local ordinance violation occurred. For example, if you were speeding, you can’t benefit from the defense that you were stopped for DUI . If you were not speeding, however, and you were pulled over in error, your consent would not be obtained, and the case against you must be dismissed.
Challenge the Test Results
Tests conducted before the driver arrives at the police station are called PBTs, or preliminary breath tests. These tests are administered to determine whether the driver is intoxicated. However, these tests are not always accurate. This point can be proven by way of a motion that shows prior test results that contradict the current one or the existence of physical conditions that can skew the outcome of the test results.
Challenge the Accuracy of Breath Testing Machines
The alcohol breath testing machines used by law enforcement across the country have accuracy problems, as well, according to the National Safety Council in its Guide for Occupational Alcohol Testing (Guide), on alcohol breath testing technology. The Guide provides that, although the majority of purportedly state-of-the-art alcohol breath testing devices are able to produce a measurement of the amount of alcohol in a person’s breath whose BAC is somewhere around .051 percent, they are "only randomizers" because they do not combine chemical testing with breath analysis.
Effects of a Kansas DUI on Insurance and the Driver’s Record
A DUI or any alcohol related driving offense typically results in a substantial increase in car insurance rates. Even if you have full coverage, the crash will normally raise your rates. A first offense DUI will typically result in a 20% to 50% increase in your full coverage rates. A third time DUI can cause a 300% increase in your auto insurance rates. Insurance companies frequently take the position that a person who is convicted of a DUI is a bad driver and ought to be charged high rates.
Even if you do not have full coverage, the DUI offense can have a major impact on your rates. If you are charged with a DUI in Kansas, you will need to carry an SR22 auto insurance certificate showing uninsured motorist coverage for either three years or five years, depending upon your record. This can add considerably to the amount you will pay for car insurance.
A DUI conviction stays on your Kansas driving record until the end of the six year sentence. So, if you are charged with a DUI, a diversion, or any other alcohol related driving offense, it may pay to discuss the issue with an experienced attorney.
Getting Help with a Kansas DUI
There are a number of ways a lawyer with experience in Kansas DUI law can help you after a drunk driving arrest. There are a number of important technical requirements that need to be adhered to for a conviction to stick. A Kansas DUI attorney will know the ins and outs of these requirements, and have enough experience to determine if the police and prosecutors followed them . While a good Kansas DUI lawyer can help if these requirements were not followed, the best way to get a favorable outcome is through the way the DUI lawyer performs in the first stages of the case. When someone is arrested for drunk driving in Kansas, usually the arrest comes down before a judge (who may even be a former prosecutor or police officer), or they have their license suspended or revoked by administrative proceedings at the Department of Motor Vehicles. A Kansas DUI attorney can help you through each of these processes.