Driving Under The Influence of Alcohol or Drugs (aka DUI)

DUI 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.

A person fails a breathalyzer test in Kansas if their blood alcohol concentration (BAC) is .08 or greater. This is quantitative evidence of driving under the influence of alcohol. The evidence may also include qualitative evidence, such as a police or lay person's opinion about smell, blood shot eyes, sleeping in public, failing to walk straight, slurred words and other indicators of intoxication.

DUI 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.

The Kansas Legislature passed some major revisions to the DUI laws that went into effect in July, 2012. The outcome of a DUI charge will depend largely on whether the alleged offense occurred prior to revisions in the DUI laws.

DUI 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 prosecutors 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 serving one year in the county jail. Talk to your attorney if you are having trouble meeting the requirements.

First DUI

The first conviction of driving under the influence, or what used to be known as driving while intoxicated (DWI) is considered a Class B misdemeanor. On a first conviction a class B, nonperson misdemeanor. The person convicted shall be sentenced to not less than 48 consecutive hours nor more than six months’ imprisonment, or in the court’s discretion 100 hours of public service, and fined not less than $750 nor more than $1,000. The person convicted shall serve at least 48 consecutive hours’ imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.

After two days in a row of jail time, you can put in an application for a work release program, provided the county actually has such a program. In order for the work release program to qualify under the DUI law, the defendant must return to the county jail each day after they get off work.

If accepted into a work release program, the defendant (person convicted of DUI) shall serve a minimum of 120 hours of confinement. The 120 hours will be calculated as the mandatory first two days of consecutive jail time plus the hours of jail time actually served between the offender's work days. Or, simply put, 2 whole days in a row, then an additional 3 days divided up into hourly blocks of time between being released from jail to go to work.

Another option is house arrest. After two days in a row of jail time, you can put in an application for a house arrest program, provided the county actually has such a program. Sometimes these house arrest programs are run by the government, sometimes by private vendors. If accepted into a house arrest program, you will wear an electronic monitoring device, typically a bracelet or ankle bracelet. The device is monitored to verify your location and make sure you are serving 120 hours of confinement in your residence. If a person is given permission to go outside their residence, it will not count toward the 120 hour requirement.

There may be other penalties associated with the DUI conviction such as 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. If you fail to complete probation requirements you will be required to serve your underlying sentence in the county jail.

All of the DUI offenses require the defendant to undergo an alcohol evaluation with a qualified vendor who will make a report back to the attorneys and to the court recommending a treatment plan based on the evaluator's assessment of the offender's risk level. This is referred to as a risk-based assessment and the person conducting the evaluation must be approved by the court as a person qualified to render a professional opinion. The court will use the evaluator's report to determine an appropriate treatment plan for all alcohol related offenses. The cost of the alcohol evaluation will be paid for by the Defendant and will not cost less than $150.

Further, any time a person is convicted of a DUI in Kansas, no matter how many prior convictions they may have had, if there was a child under the age of 14 in the car at the time of the arrest, then the punishment will be increased by one month of jail time and must be served consecutively, or back to back, with the original jail time, although this added jail time cannot cause the over-all jail sentence to exceed the maximum jail time provided for in each section. But, during the service of the increased jail sentence, the judge may order the person on work release, house arrest or other conditional release.

In order to determine whether a DUI is a first, second, third or subsequent offense, the prosecutor's office may count prior convictions not just of DUI but also, other offenses where drinking was a factor, such as driving a commercial vehicle while under the influence, refusal to submit to a test to determine the presence of drugs or alcohol, involuntary manslaughter while driving under the influence of alcohol or drugs, aggravated vehicular homicide, prior to its repeal, vehicular battery, prior to its repeal, if committed while driving under the influence of alcohol or drugs, or violations of the Uniform or Kansas code of Military Justice. The look back time period may include any convictions for the above offenses during a person's lifetime.

Second DUI

The second DUI conviction is a Class A misdemeanor, unless their is a prior conviction which occurred within the preceeding ten years.* It carries a mandatory fine in the range of $1,750 to $2,500 and a minimum sentence of 90 days in the county jail with a maximum of one year in the county jail.

However, a person can get their jail time probated, suspended, reduced or paroled after they have served at least 90 days in jail. But, keep reading to determine if your 90 days can be served in a work release or house arrest program.

After two days in a row of jail time, you can put in an application for a work release program, provided the county actually has such a program. In order for the work release program to qualify under the DUI law, the defendant must return to the county jail each day after they get off work.

If accepted into a work release program, the defendant (person convicted of DUI) shall serve a minimum of 2,160 hours of confinement. The 2,160 hours will be calculated as the mandatory first two days of consecutive jail time plus the hours of jail time actually served between the offender's work days

Another option is house arrest. After two days in a row of jail time, you can put in an application for a house arrest program, provided the county actually has such a program. Sometimes these house arrest programs are run by the government, sometimes by private vendors. If accepted into a house arrest program, you will wear an electronic monitoring device, typically a bracelet or ankle bracelet. The device is monitored to verify your location and make sure you are serving 2,160 hours of confinement in your residence. If a person is given permission to go outside their residence, it will not count toward the 2,160 hour requirement.

*If, on a second DUI conviction where there has been a prior conviction which occurred within the preceding 10 years, not including any period of incarceration, then that conviction shall be a nonperson felony. Convictions under this section of the DUI law are referred to as "fela-meanors". That is a common term, not a legal term and it will not appear on your legal paperwork. The same fines and jail sentences apply as outlined above in this section on second DUI offenses, except that there is no eligibility for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' in jail.

However, after two days in a row of jail time, you can put in an application for a work release program, provided the county actually has such a program. In order for the work release program to qualify under the DUI law, the defendant must return to the county jail each day after they get off work.

If accepted into a work release program, the defendant (person convicted of DUI) shall serve a minimum of 2,160 hours of confinement. The 2,160 hours will be calculated as the mandatory first two days of consecutive jail time plus the hours of jail time actually served between the offender's work days.

Another option is house arrest. After two days in a row of jail time, you can put in an application for a house arrest program, provided the county actually has such a program. Sometimes these house arrest programs are run by the government, sometimes by private vendors. If accepted into a house arrest program, you will wear an electronic monitoring device, typically a bracelet or ankle bracelet. The device is monitored to verify your location and make sure you are serving 2,160 hours of confinement in your residence. If a person is given permission to go outside their residence, it will not count toward the 2,160 hour requirement.

The 2,160 hours of confinement is the equivalent of, and satisfies, the minimum sentence of 90 days.

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.

Third DUI

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 mandatory fine of $2,500. There is a mimimum jail sentence of 90 days with a maximum of one year of jail time. Even though this is a felony, it will be served in the county jail, unlike other felony sentences which are served in prison. However, the court may order the defendant to serve time in a substance abuse treatment facility which may or may not be run by the Department of Corrections (aka prison). Although the judge has the option of ordering a person to prison for the purpose of substance abuse treatment under the new law, the Kansas Department of Corrections does not yet have any such treatment facilities available as of the time the law passed in July of 2012.

A Defendant can get their jail time probated, suspended, reduced or paroled after they have served at least 90 days in jail. But, keep reading to determine if your 90 days can be served in a work release or house arrest program.

After three days in a row of jail time, you can put in an application for a work release program, provided the county actually has such a program. In order for the work release program to qualify under the DUI law, the defendant must return to the county jail each day after they get off work.

If accepted into a work release program, the defendant (person convicted of DUI) shall serve a minimum of 2,160 hours of confinement. The 2,160 hours will be calculated as the mandatory first three days of consecutive jail time plus the hours of jail time actually served between the offender's work days

Another option is house arrest. After three days in a row of jail time, you can put in an application for a house arrest program, provided the county actually has such a program. Sometimes these house arrest programs are run by the government, sometimes by private vendors. If accepted into a house arrest program, you will wear an electronic monitoring device, typically a bracelet or ankle bracelet. The device is monitored to verify your location and make sure you are serving 2,160 hours of confinement in your residence. If a person is given permission to go outside their residence, it will not count toward the 2,160 hour requirement.

If the court determines that a person will be unable to pay the mandatory fines under any of the DUI offenses, the court has the option of ordering the person to perform community service hours and then crediting $5 off the fine amount for each hour of community service performed. Any applicable community service hours imposed must be completed within one year of the date the fine was ordered by the court. If an insufficient amount of community service hours are performed to reduce the balance of the fine to zero, then the balance of the fine is due a year from the date the judge ordered the fine.

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.

If a person refuses to submit to and complete any test of breath, blood or urine after being requested to do so by a law enforcement official, the person may be charged with a separate crime for refusing to submit to the test which carries penalties which are greater than or equal to the punishment for a conviction of driving under the influence.

Another thing to keep in mind is that this section of the law impacts not only alcohol but drugs as well. A person can be charged and convicted of DUI if they are under the influence of drugs. Obviously this includes illegal street drugs such as marijuana but it also includes medications which are prescribed by a doctor.

More comprehensive information is available about the current Kansas DUI law.