Driving Under The Influence
Administrative Penalties
Jeopardizing Your Driving Privileges
A DUI charge iniates both a judicial and administrative charge. You must request an administrative hearing within ten days of your charge in order to protect your driving privileges. Otherwise, your license can be suspended and / or restricted after 30 days from the charge. The police will give the defendant a pink paper form called a DC-27. Consider getting an attorney immediately to assist you with both sides of this complex issue.
If the driver was under 21 or either refused or failed a breath test at the time of the charge then driving privileges will be suspended for a period of one year.
Judicial Penalties
Creating a Criminal Record
As stated before, DUI does not fit nicely into our State's defined misdemeanor and felony rules because the punishment for each phase of the offense is stated in the statute itself. There is no cut-off time for how far back your record can be reviewed to determine the correct number of the offense. Even if your first offense resulted in a diversion agreement, it will count against you.
First Offense
The first conviction is considered a Class B misdemeanor. The fine is a minimum of $500
and a maximum of $1,000, minimum jail time of 2 days with a maximum of 6 months, or 100 hours of community service; an alcohol and drug assessment with a court order that you follow the recommendations of the evaluation, and complete an educational program about excessive use of alcohol. You will be placed on probation until you complete these requirements.
Diversion
If you haven't been in trouble before, talk to your attorney to see if you are eligible for a diversion agreement. If you have been in trouble before you aren't going to qualify for the diversion but they won't tell you that until after you've paid the money to apply for it. Don't waste your time and money - be honest with your attorney about your prior convictions. If you were involved in an accident and as a result determined to be DUI, then prosecutors are prohibited from granting a diversion.
Each jurisdiction's prosecutor's will establish the terms of the diversion contract, which are quite similar to probation terms. Expect to see fees, court costs, educational programs, therapy, community service hours and stable housing and employment or successful completion of school programs. Upon completion of all the terms of the diversion contract, the prosecution will dismiss the charge(s) if the Defendant hasn't gotten in any further trouble after the time-limit in the contract expires (around three years in typical). Even DUI's dismissed after diversion will count toward the number of offenses should the individual be charged again with DUI. It will be considered the second offense.
If you don't complete the requirements of either the diversion or the probation, you will face the possibility of six months in the county jail. Talk to your attorney if you are having trouble meeting the requirements.
Second Offense
The second DUI conviction is a Class A misdemeanor. It carries a mandatory fine in the range of $1,000 to $1,500 and a minimum madatory 5 days in the county jail with a maximum of one year in the county jail. You will lose your driving privileges for a year followed by another year of restricted driving. If you own a vehicle you will be required to have a device installed on your vehicle called an "interlock" which prevents the vehicle from moving if you don't blow an alcohol-free breath into the device. Its kind of like your personal breathalyzer. Similar to the first offense, you will be placed on probation, if you qualify for it, until you complete all the terms of the probation. If you don't comply with the terms you could face a year in the county jail.
The third and subsequent DUI convictions are classified as off-grid felonies. There is no cut-off time for how far back your record can be reviewed to determine the correct number of the offense. Even if your first offense resulted in a diversion agreement, it will count against you. This is considered a non-person felony and carries a minimum mandatory fine of $1,500 with a possible maximum of $2,500. There is a mimimum jail sentence of 90 days. Talk to your attorney to see if you can arrange a house arrest or work release program. After the minimum jail time you will be placed on probation if you are eligible for it. The same probation terms will apply as above along with an interlock devise and loss of driving privileges for one year followed by another year of restricted driving privileges.
Any subsequent convictions after the third one will carry the same punishment as for the third one except that the defendant will be supervised by the Kansas Parole Board and must complete an intensive outpatient program along with some other more restrictive probation terms, depending on your jurisdiction. Again, driving privileges will be suspended for a year, restricted for another year and an interlock device will be required.
The court has no authority to modify driving suspensions imposed by the Department of Motor Vehicles. You will also encounter some nasty and expensive insurance requirements along this route which are best avoided.
You are best advised to let your attorney examine the paperwork to see if all notice requirements were complied with and whether the proper reasonable suspicion existed for the police to perform the traffice stop. Some people are being arrested for DUI after passing the breathalyzer test and the best way to beat this charge is to get your attorney on-board immediately.
In the meantime, say nothing but don't refuse the breathe test. If you refuse it, you can be punished as if you had failed it, even if you could have passed it. Also, be aware you are being videotaped from the cop car so be on your best behavior in case a jury ends up watching the tape.
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