DUI/OUI in Kansas
Kansas does not make a distinction between driving under the influence (DUI) and operating under the influence (OUI). If you have received a driving under the influence charge (DUI or OUI) in Kansas, we strongly advise you to see an attorney within ten (10) days of coming in contact with a police officer for driving under the influence. Most often you will have received a piece of paper known as a DC-27 form. Most driving under the influence incidents result in two separate and distinct cases. The first is a criminal case, which proceeds in a criminal court (Municipal Court or District Court). The second case is a civil action involving your driving privileges. The civil action is an administrative proceeding brought against your driving privileges which is heard by the Kansas Department of Revenue. The Administrative License Hearing proceedure is full of pitfalls and time limitations that someone who is not thoroughly familiar with the law can easily miss. You must make a proper demand for a driver's license hearing within fourteen (14) days of receiving the DC-27 form. You must pay a $50 fee at the time you request an administrative hearing. (The Kansas Supreme Court held this fee was Unconstitutional in a recent case) We normally recommend that the request include a demand for an "in person" hearing, with the officer being subpoenaed to testify. Failure to go through this process timely will, more than likely, result in some type of driver's license suspension. Driver license suspensions can range anywhere from thirty (30) days to one year with a subsequent restriction of driving only a motor vehicle equipped with an ignition interlock device for a period up to ten (10) years. Driving is a privilege under Kansas law not a right. You do not have a constitutional right to drive a vehicle.
The cold reality is that a person who has refused the breath test or took the test and failed, even on his or her first offense, may lose his or her driving privileges completely for a year. ( A hardship license is available after 45 or 90 days in most cases) Consequently, you must do everything you can to make sure your rights are protected. You must take action even before your court date. If you wait until your court date to request a driver’s license hearing, the time for you to request a hearing may expire. The driver's license hearing process is highly technical in nature. Officers do make mistakes in the way they process paper work and conduct investigations. Those mistakes can result in someone keeping his or her license, when he or she might have otherwise lost the privilege to drive. The best way to ensure that you defend a case properly is to seek the advice of a qualified attorney as soon as possible after being stopped for driving under the influence.
Kansas law regarding driving under the influence has historically changed almost every July 1. If you are charged with a criminal offense, the law that is in effect at the time that you are alleged to have violated the law is what controls. Changes to criminal statutes that are substantive cannot be retroactively applied. Since the law is constantly changing, it is very important that when you visit websites regarding driving under the influence, that you make sure the website has been updated recently. Unfortunately many attorneys maintain websites that are not updated on a regular basis. If a website, for instance, states that expungement are no longer available for driving under the influence, that website is out of date. To know the penalties for violating a DUI/OUI statute, you must look at the statute at the time of your offense. Because the State has up to five years to bring charges, the current law may not be applicable to you.
Even if your license is suspended you may be able to get a license for a motorized bicycle under K.S.A. 8-235(d).
In the average DUI/OUI arrest a person may take two breath tests. The two tests have very different consequences. The first request for a breath test usually involves a preliminary breath test (PBT). The PBT is a handheld device. Refusal to take a PBT is a traffic infraction the first time it happens and does not affect a person's driving privileges. The PBT is used to establish probable cause, which provides justification for the police officer to make an arrest. The second time a person is convicted for refusing a PBT could result in penalties as severe as those for a DUI conviction.
The other breath test, an Intoxilyzer 9000, is usually administered at a police station or jail, although some portable units are in use. The Intoxilyzer 9000 requires electricity and is not handheld. Refusal to take this test or taking the test and failing both leads to suspension of driving privileges and provides evidence in criminal cases. Commercial Drivers license and persons driving under the age of 21 years have special rules. A person under 21 who takes a test and is shown to be driving with a .05 breath alcohol can lose their driving privileges but this is not a per se violation of the criminal statute. A commercial driver operating commercial vehicle that tests .05 is violating the per se criminal statute and is subject to losing his or her driving privileges.
If you refuse a breath test of a breath, blood, or a urine test (this does not include a PBT breath test) your license is at risk for a one year suspension of driving privileges, followed by an ignition interlock requirement. The driver's license suspension is for one year regardless of how many prior Kansas DUI occurrences a person has had in the past. The length of the interlock requirement will depend on the number of prior convictions or administrative actions.
If you are over 21, and take an Intoxilyzer 9000 breath test with a result between .08 and .15: on the first occurrence, you risk a 30 day suspension of driving privileges followed by 6 months of ignition interlock device if you have no prior occurrences. The ignition interlock requirement is for 12 months if you have a prior MIP or Open Container conviction, if you had 3 moving violations within the previous 12 months, or if your driving privileges had otherwise been revoked, suspended, canceled or withdrawn. The amount of time for the interlock device increases with every prior occurrence you have had.
Failure of an Intoxilyzer 9000 breath test with a result of .15 or higher on the first occurrence, or over .08 on a second or subsequent occurrence, results in a one year suspension of driving privileges, followed by an ignition interlock requirement. The length of the interlock requirement will depend on the number of prior occurrences shown on your driving record. Anyone who is suspended for one year may obtain a restricted license to allow driving to and from school, work, and alcohol treatment after the initial 45 days of suspension for persons with a breath test failure and 90 days for those with a breath test refusal. You are not allowed to drive during the course of employment.
The hardship license can be applied for retroactively if your license was suspended before July 1, 2011, upon application and payment of a $100 application fee. A person who currently has a suspended license may be able to get a restricted license if he or she has already served 45 days or more of his or her suspension. You can apply for a hardship license from the Kansas Department of Revenue and other restricted licenses. Go to this link and choose Application to modify a current driver's license suspension (DC-1015). Hardship License Application
You can check the status of your drivers license in Kansas and run a copy of your diving record by going to: Driver's License Check
Diversion agreements are not what they used to be. If a driver is ever charged with another DUI, a diversion will count as a first offense, and the subsequent DUI will count as a second. Some rental car agencies ask about diversions on their applications, and some employers are requesting information about diversions. Given the trend for steeper penalties for driving under the influence convictions or diversions, it is highly advisable that a person exhaust all avenues before participating in a diversion. Not everyone charged with driving under the influence will be convicted. The prosecuting attorney must prove all elements of a driving under the influence charge beyond a reasonable doubt. Additionally, a number of technical defenses can be raised, which include among others, the legality of the stop, whether the police officer gave the implied consent advisory, and other defenses that a layperson might not know to raise in their case.
Kansas courts have held that Miranda rights do not have to be read to an individual before he or she decides whether or not to take a breath test. A common misconception is that police officers must read Miranda rights after an arrest. This is TV fiction. Miranda must be read before a police officer obtains a statement from a person when the person is in police custody and being subjected to questioning. Kansas courts have held that neither breath tests nor field sobriety tests are statements so the Miranda rule does not apply. Further, there is no right to consult an attorney before making a decision of whether or not to take a breath test.
In some cases, police officers may request a person to take a blood test or obtain a search warrant to get blood from a suspect. If you take a blood test, the results will not be available immediately. Blood tests can take several months to process. The blood sample is sent to the Kansas Bureau of Investigation laboratory, where the blood is tested. If you have had a blood test taken, you should contact an attorney and make an appointment as soon as possible. Until you receive a pink sheet, or DC-27 form, your time to demand a hearing does not start, but you should not wait until you receive a DC-27 sheet before contacting an attorney.
Expungement: Expungement rights attach at the time of conviction or diversion. Most DUI/OUI convictions can be expunged. The question is how long do you have to wait to file for an expungement
The Kansas Legislature has now broken down the time served in confinement for driving under the influence convictions to the number of hours a person has to serve rather than days. When people are on work release, the hours in which they are not in confinement do not count toward serving the time of the hours mandated for confinement. Canada may refuse entry to people who have been charged or convicted of DUI or OUI. You should investigate whether you will be allowed into the country before going to the border. Canada does not follow the presumption of innocence found in US law.
The statement in this web site is the law as of July 1, 2019. If you had a DUI or OUI before July 1, 2019 different rules may apply
Michael Riling, Chris Peoples and John Nitcher handle DUI/OUI cases. Call (785) 841-4700 to set an appointment. (We do phone appointments but you will need to fax in your ticket and DC 27 before the appointment. (fax number is (785) 843-0161) We do not offer free consultations.