You need an experienced Johnson County DUI attorney/lawyer for every Johnson County driving under the influence charge

Johnson County, Kansas and its cities have some of the toughest drunk driving (DUI/DWI) laws in the country.  Every Johnson County DUI conviction carries a mandatory jail sentence and a driver's license suspension - even for first time offenders with a clean driving record.  Even worse, any DUI conviction in Kansas will stay on a driver's record for life with subsequent offenses carrying progressively harsher penalties.  These strict laws are coupled with strict DUI enforcement policies by police in Johnson County, meaning that record numbers of drivers are being charged with driving under the influence (DUI/DWI) in Johnson County District Court & in the municipal courts of Johnson County.

A conviction for drunk driving will also have other negative effects.  A DUI conviction in Johnson County will almost always cause a driver's insurance rates to increase significantly - it is not uncommon for insurance rates to rise 300% following a DUI conviction.  A Kansas DUI conviction will also carry a negative stigma with friends, family, and co-workers, as they generalize your case with that of a more serious DUI case, regardless of the circumstances surrounding the case.

The conclusion is simple - if you are charged with drunk driving (DUI/DWI) in Johnson County, your liberty, driver's license, money, and reputation are at stake.  The government has the full resources of the government at its disposal, you owe it to yourself to have a tough, aggressive, knowledgable, and personable Johnson County DUI attorney on your side to look after your rights.

If you are charged with driving under the influence (DUI/DWI) in Olathe, Overland Park, Merriam, Leawood, Lenexa, Mission, Shawnee, Prairie Village, Gardner, Desoto, Mission Hills, Kansas City, or elsewhere Kansas, call us today at (913)764-5010 to speak to a DUI lawyer and to set up a no-cost consultation with one of our DUI attorneys.  Our law office's DUI/DWI lawyers are willing to fight for your interests, through trial, a plea, or a DUI diversion.

Our law office offers aggressive, knowledgable, personal, and affordable attorneys for all Johnson County, Kansas driving under the influence (DUI/DWI) charges

The attorneys and staff in our law office recognize that most people charged with DUI in Johnson County are good people who simply made a mistake.  In fact, in many cases our clients thought they were fine to drive - they never intended to drive while under the influence.  We treat all of our clients with respect because we understand that the vast majority of drivers charged with DUI in Johnson County are either innocent of the charge and deserve a vigorous defense or they are willing to accept responsibility for their actions and are looking for the best outcome possible under the circumstances. 

At the Law Offices of Jeremiah Johnson, LLC, our lawyers and staff also recognize that everyone charged with driving under the influence in Johnson County is innocent until proven guilty and that being charged with driving under the influence (DUI/DWI) in Johnson County is not remotely the same as being convicted of the DUI charge.  Driving under the influence is a unique charge among criminal cases becuase it is usually a "status" crime, where the only evidence against our clients is often a machine with inherent flaws, run by police officers who make mistakes, and that may or may not have been working correctly.

There are literally hundreds of ways for an experienced lawyer to help you win a Johnson County DUI case (and probably thousands of ways to lose one), you owe it to yourself to retain a DUI attorney who can look after your interests and for ways to win your case.  At the Law Offices of Jeremiah Johnson, LLC, we take pride in evaluating every case for ways to secure an acquittal in Court and win the driver's license administrative hearing.  We certainly don't intend to make guarantees - no lawyer can do that.  We can only tell you that we will use our experience and knowledge to seek the best outcome possible in your case.

The lawyers and staff in our office exhaustively challenge the prosecution's case at every appropriate opportunity.  While many people, and sadly some attorneys, accept DUI field sobriety tests ("SFSTs") as irrefutable evidence, in actuality breathalyzers such as the Intoxilyzer 8000 can be highly inaccurate under certain conditions and the SFSTs are difficult if not impossible for sober people under the best of circumstances. The DUI attorneys in this office believe that the SFST's and breathalyzers used by law enforcement in Johnson County are some of the most inaccurate and unreliable methods of gathering evidence in a criminal case.  As a result, we believe in exploring every angle relating to the SFST's and breathalyzer results when evaluating your case to ensure that your rights are protected and we can put you in the best position possible.

If you are seeking aggressive, knowledgeable, and personal DUI representation for a DUI charge anywhere in Johnson County, call our law office immediately at (913) 764-5010 or email us at info@JohnsonCountyDUI.com to discuss your case with an experienced Johnson County DUI lawyer.

Learn more about how a typical Johnson County DUI case proceeds:

Johnson County, KS driving under the influence (DUI) charges/arrests almost always involve two distinct and separate portions:

1. The criminal case, which is resolved in municipal court or Johnson County District Court, depending on where you were arrested and which law enforcement agency arrested you.  This part of the case is where the prosecution is trying to send you to jail, levy thousands of dollars in fines, and/or put you on court ordered probation and alcohol treatment classes.
2. The administrative driver's license hearing with the Kansas Department of Revenue's Driver's License Bureau, where the State of Kansas is trying to suspend your driving privileges for a period between 30 days and life.

It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different in each proceeding.

Part 1:  The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureau due to a breath test failure or breath test refusal:  

If you have been charged with a Johnson County DUI, please keep this in mind, above everything else you've read so far:  In most Johnson County DUI cases, you only have 10 business days from your arrest to request an administrative hearing to determine if your driver's license will be suspended, and if so, for how long.   The proposed suspension depends on what "occurrence" the Kansas Department of Revenue believes the DUI charge is.  The KDR defines "occurrence" in a very unique way, so it is important to consult with a Johnson County DUI attorney to determine what "occurrence" they consider this for you. 

The term of the driver's license suspension that you face as a result of your Johnson County DUI depends upon several factors, including:

(1) whether you failed a breath/blood/urine test or whether you refused to submit to it;

(2) the level measured in your blood/breath/urine;

(3) whether this is your first, second, third, or subsequent test failure or refusal; and

(4) whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us at (913)764-5010 or email us at info@JohnsonCountyDUI.com for more information about your specific case.

The proposed driver's license suspensions for those over 21 years old are either:

(1) 30 day driver's license suspension with 330 days restricted for first time offenders blowing under .15;

(2) 1 year driver's license suspension with a varying ignition interlock requirement for first time refusals, first time breath samples over .15, and breath samples over .08 for second, third, and fourth time DUI occurrences;

(3) 2 year driver's license suspension, with an ignition interlock requirement for second occurrence refusals;

(4) 3 years driver's licnese suspension, with an ignition interlock requirement for third occurrence refusals;

(5) 10 year driver's license suspension, with an ignition interlock requirement for forth occurrence refusals;

(6) For fifth time refusals or breath test failures, the law calls for a permanent driver's license suspension! 

These proposed suspensions are absolute, with no "hardship" licenses being granted.  The proposed driver's license suspension in your case will depend on your driving record and the circumstances surrounding your case. The 10 day deadline is absolute - if you do not request the hearing within the 10-day time period, the suspension proposed by the Kansas Department of Revenue will automatically go into place, with no opportunities to appeal!  Thus, it is highly suggested that you quickly retain a Johnson County, Kansas DUI attorney to protect your rights and driving privileges.

People charged with a DUI in Johnson County are entitled to an administrative hearing with the Kansas Department of Revenue where the driver and their Johnson County DUI lawyer can challenge the grounds upon which a driver's license is suspended.

At the Administrative Hearing, the Kansas Department of Revenue is attempting to take your license from you.  To the Department of Revenue, causing you to lose your driver's license and thus your job is just part of another day's work.  Nor do they care that your family could suffer serious hardships if you are not available to take your kids to school or activities.  The DoR's Driver Control Bureau exists in this capacity to take your driver's license and ignore the consequences.  To keep your driver's license you need a Johnson County DUI attorney who knows how to defeat the DoR.

Learn how our law office's DUI attorneys can help preserve your driving privileges after a Johnson County DUI charge: 

Our Johnson County DUI attorneys can request an administrative hearing within 10 business days of your arrest and preserve your driving privileges until a hearing is held in your case. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request. In Johnson County, administrative hearings for driving under the influence (DUI/DWI) are usually scheduled at least 3 months after the Johnson County, KS DUI arrest, and occasionally take place 9 months or longer after the arrest.  Prior to the hearing, our DUI lawyers can subpoena certain documents and witnesses who may have information about your case.

Why are the administrative hearings so hard to win?:  The primary reason it is difficult to win the administrative hearing is that the burden of proof is shifted to the driver - instead of the State of Kansas having to prove that you are guilty and your license should be suspended, you have to the burden of proving that your license should not be taken from you.  This seems contrary to the fundamentals of our justice system, but "innocent until proven guilty," is only available in criminal proceedings and the State of Kansas considers the driver's license suspension portion of a Johnson County DUI to be a civil proceeding.  Thus, the Constitutional protections available in criminal court are often unavailable at the administrative hearing.

At the Kansas DUI administrative hearing, a limited number of issues can be raised in your defense, depending on the facts of your case. These issues include: (1) whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs; (2) whether you were given the legally required notices before being asked to submit to testing; (3) whether your actions constituted a legal refusal to take the test; (4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE); (5) as well as a limited number of other due process or other constitutional issues.

If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all.  However, you or your Johnson County DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 business days of the day you received the DUI or your driving privileges will automatically be suspended, period.  Thus, it is critical that you quickly retain a well-qualified Kansas DUI defense lawyer as soon as possible after the arrest to preserve your rights.

Part 2: The criminal prosecution in a Johnson County driving under the influence (DUI) case:

The potential criminal penalties for a Johnson County DUI conviction are tremendous and include jail time, thousands of dollars in fines, the potential impoundment of your vehicle, court ordered probation/alcohol treatment, and numerous other negative effects.  The amount of fine and the length of the jail sentence are determined, in large part, by whether you have previously been convicted, or placed on diversion for driving under the influence (DUI). In general, a first time offense calls for a 6 month maximum sentence, and the potential incarceration period goes up from there.  It rarely matters where or how long ago a prior conviction occurred. Now, almost all prior DUI convictions (whether in Kansas or another state) and DUI diversions count, regardless of where or how long ago they occurred.  Our Johnson County DUI lawyers offer legal representation to those charged with DUI in Johnson County by providing knowledgable advice, trial representation (including Johnson County jury trials & bench trials), by securing advantageous pleas for our clients, and by helping out clients pursue a Johnson County DUI diversion when appropriate.

FIRST JOHNSON COUNTY DUI CONVICTION

A first driving under the influence (DUI) conviction in Kansas is a Class B misdemeanor.  The potential sentence is up to but not more than six months in jail  .If convicted, KSA 8-1567 requires the defendant to serve at least 48 consecutive hours in the custody of the Johnson County Sheriff before probation can begin.  The fine for a first conviction ranges between $500 and $1,000.  The driver must undergo a drug and alcohol evaluation (ADSAP) and will be required to successfully complete any and all treatment is recommended by the evaluator as a part of the probation.  Finally, the Court can also order a driver's license suspension if the driver has won their administrative hearing. 

There is an alternative to the jail time required for first time Johnson County DUI convictions.  A skilled Johnson County DUI attorney might be able to enroll the defendant in the Community Weekend Intervention Program (CWIP class) which is a weekend in "custody" in a motel like facility, even if the person is convicted of a Johnson County DUI.  The CWIP class is no picnic, but it allows you to spend your "jail time" in a facility without bars and surrounded by other people convicted of DUI, not hard-core criminals.  In addition, instead of spending the whole weekend sitting around, the CWIP class will allow you to complete a significant portion (and perhaps all of) the Court ordered alcohol treatment classes.  This law office has plenty of experience in convincing the Johnson County court's to approve the CWIP class instead of ordering jail time, contact us at (913) 764-5010 or info@JohnsonCountyDUI.com for more details.

Johnson County DUI diversion representation for first time (and occasionally other) offenders:

For some folks, there is another alternative when charged with a first time DUI in Johnson County - called diversion.  What is a Johnson County driving under the influence (DUI) diversion?  A diversion is basically a civil contract between the person charged with a Johnson County DUI and the prosecution.  The prosecution agrees to suspend their efforts to convict the driver for 12-months if the driver agrees to fulfill the terms of the Johnson County diversion.  If the driver successfully completes the diversion, then the prosecution will "dismiss" the case.  If the driver does not successfully complete the diversion, then a conviction will result, along with all of the punishments associated with conviction listed above.  

The usual terms of a DUI diversion in Johnson County District Court or one of the local municipal courts includes fines, costs, and fees of $750-$1250, the requirement to complete the same alcohol treatment classes as if convicted, a 12-month alcohol and drug abstinence period (which may be enforced by urinanalysis), and other hoops to jump through.  Anyone considering a diversion for a Johnson County DUI should keep in mind several other things.  KSA 8-1567 counts diversions as convictions if the driver is ever charged with DUI again.  Additionally, a diversion will not make the proposed license suspension disappear so a person could find themselves on diversion, but without a license.  Our Johnson County DUI attorneys have experience securing diversions for folks throughout Johnson County and we will be happy to explain the benefits and risks of entering into a diversion agreement.  

SECOND JOHNSON COUNTY DUI CONVICTION

A second conviction for Kansas DUI is a Class A misdemeanor offense with a sentence as long as one full year in the custody of the Johnson County Sheriff.  The penalties are similar in nature, but not severity, to a first time DUI conviction. The defendant must serve at least five consecutive days in custody as a prerequisite to probation, but after hearing arguments from a skilled Kansas DUI attorney, the judge may order the defendant to serve only 48 hours in custody followed immediately by at least 3 (but usually 7) consecutive days of work release or house arrest to satisfy this 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required. The number of classes is usually much more than for a first time DUI, and the monitoring levels on probation are much stricter.  The fine for a second conviction ranges from $1,000 to $1,500.  At the administrative level, driving privileges are suspended for a minimum of one year followed by one year of ignition interlock restrictions for a test failure.

There is an alternative to the jail time required for some second time Johnson County DUI convictions in some Johnson County municipal courts.  In limited instances, a skilled Johnson County DUI attorney might be able to enroll the defendant in the Community Weekend Intervention Program (CWIP class) which is a weekend in "custody" in a motel like facility, even if the person is convicted of a Johnson County DUI.  The CWIP class is no picnic, but it allows you to spend your "jail time" in a facility without bars and surrounded by other people convicted of DUI, rather than hard-core criminals.  In addition, instead of spending the whole weekend sitting around, the CWIP class will allow you to complete 8-16 hours of court ordered alcohol treatment classes.  This law office has experience in convincing the Johnson County court's to approve the CWIP class instead of ordering jail time, contact us at (913) 768 -0070 or info@JohnsonCountyDUI.com for more details.

THIRD JOHNSON COUNTY DUI CONVICTION

A third conviction for a Johnson County driving under the influence (DUI) charge is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days.  The Johnson County District Attorney's Office rarely requests less than a 1 year underlying jail sentence when folks are convicted of a 3rd time DUI in Johnson County District Court. The fine for a third conviction ranges from $1,500 to $2,500. At the administrative level, the term of suspension for a test failure is the same as for a second offense: one year suspension of driving privileges followed by one year of interlock restrictions. As you might expect, the probation on a third-time conviction is very tough and will require a significant number of meetings, alcohol tests, and alcohol treatment classes.  

FOURTH JOHNSON COUNTY DUI CONVICTION

A fourth conviction for a Johnson County driving under the influence (DUI) charge is also a felony.   Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison.  The Johnson County District Attorney's Office will seldom request anything less than a 1-year underlying jail sentence for 4th time convictions and will petition the Court for months of jail time before probation is granted.  The fine for a fourth conviction is at least $2,500. Upon a fourth DUI conviction in Kansas, driving privileges are suspended for one year followed by one year of interlock restrictions for a test failure. If there is a fifth conviction, driving privileges are permanently revoked regardless of whether the driver refused or failed the test.  In addition, post release supervision will be required for a 5th Kansas DUI conviction.

FIFTH JOHNSON COUNTY DUI CONVICTION

If you have been charged with a 5th DUI in Johnson County, then you can expect the prosecution to seek the maximum sentence on your case, without the possibility of probation.  You are likely already aware of the consequences, so call us immediately at (913) 764-5010 discuss your case and set up a meeting. We have experience helping folks charged with a 5th DUI and we have learned that quick intervention is crucial in either preparing a trial defense or setting up an advantageous plea.

JOHNSON COUNTY DUI DIVERSIONS

The Johnson County DUI laws allow for diversion for first time offenders which allows a defendant to avoid serving a jail sentence, but calls for a fine, alcohol treatment, and monitoring.

A Johnson County  DUI Diversion is essentially a contract between the charging jurisdiction and the Kansas DUI defendant in which the person charged gives up his or her right to a speedy trial and his or her right to a jury trial, in exchange for an opportunity to "avoid" a conviction for DUI. Under the diversion agreement, you will be required to pay a fine; attend an alcohol and drug safety action program or treatment program, or both; use no alcohol or drugs; and fulfill whatever other terms and conditions the city or state requires.  It essentially requires you to complete all the requirements of a probation, without actually ever having been placed on probation.

A Johnson County  DUI Diversion has one real benefit: If, at the completion of the diversion period you have completed all the requirements of the contract, the criminal charge of DUI is "dismissed." However, if you do not successfully complete the requirements of the Diversion contract, the criminal case against you will be reinstated and your trial will be conducted on stipulated facts, meaning that there will be no opportunity to cross examine witnesses, present new evidence, or mount any meaningful defense.  In addition, the diversion will count as a "conviction" for subesequent DUI charges.  For instance, if a person were granted a diversion and then later in life were charged with another DUI, the DUI would count as a second, even though they were never convicted on their first charge. 

In many cases, the only difference between a diversion and a conviction consist of only the 48 hours in custody.  As a result, this office often recommends that those charged with a first time DUI seriously consider fighting the charge, especially if their case has some good legal issues with which an acquittal might be secured.

If you're looking for a Johnson County, Kansas DUI lawyer, call (913)764-5010 or email us at Info@JohnsonCountyDUI.com today.

How can a person be acquitted of a DUI charge in Johnson County, Kansas?

If you're reading this page, that is undoubtedly the question on your mind. The final answer is not a simple one and cannot be given without consulting an experienced Johnson County, Kansas DUI lawyer.

Relevant factors for securing an acquittal or dismissal of a DUI may include:

1.  The lack of a lawful reason to stop your vehicle - If the police stopped your vehicle without a lawful reason, all evidence gathered as a result may be suppressed - meaning not allowed into evidence. This analysis can swing on tiny issues and requires careful scrutiny, best done by a diligent attorney. Contrary to popular belief, weaving within one's lane of traffic is not illegal, but can be used as a valid reason to pull a person over in certain circumstances.

2.  Improper testing - Certain tests such as touching one's nose with a finger, walking and turning, reciting the alphabet backwards, counting, or balancing on one leg may not be admissible into evidence as they are not necessarily recognized as being a valid indicator of one's intoxication.  In other cases, mitigating factors such as prior injuries or medical conditions may render such tests unreliable.  Other conditions such as wind, rain, cold, or snow may comine with other factors to cast doubt on these tests as well.

3.  The lack of probable cause to believe a person is drunk - The police must make specific observations to conclude that they have probable cause to arrest a person for a DUI.Portable breath tests (also known as PBT's) - These tests are often not admissible into evidence as they are often not entirely accurate. In addition, the officer administering the test must do so properly for the indication to provide probable cause to arrest someone.

4.  The Breathalyzer test may not be reliable - If the test is not reliable, it may not be able to be used against you in court. Reasons to exclude an breathalizer/intoxilyzer test from evidence include a machine with an expired license, a machine with an inexperienced operator, a machine operating incorrectly, or an unlicensed machine operator.

5.  Evidence may be the product of an illegal search - The police may not search a car simply because it has been pulled over for speeding or some other minor traffic offense - they must have some suspicion of criminal wrongdoing or consent from the driver. Any evidence that is the product of an illegal search would likely be inadmissible in court.

6.  Medical and Health problems - These can factor into a court's analysis in determining whether a suspect gave police evidence that they had been drinking or were impaired.

Do you even need an experienced Johnson County, Kansas DUI attorney?  

Oftentimes people will hear from friends, co-workers, or even the police that a lawyer is not necessary for a first time DUI. This is an extremely dangerous proposition. The laws concerning Driving Under the Influence in Kansas have been tightening significantly in the past few years, which has made it even more important to retain a Kansas DUI attorney.

Any DUI, even a first time offense will likely have a dramatic effect on your life in the following ways:

Driver's license suspensions:

A Driver's License suspension is now likely in almost every case.  Your driver's license will be automatically suspended by the Kansas Department of Revenue if you do not request an administrative hearing within 10 days of receiving your pink sheet from the officer citing your for a DUI.  If you continue to drive with a suspended license, you will be committing a class A misdemeanor every time you get behind the wheel ofa car!

The State does not care how you'll get to work or pick up your kids from school - that is your problem is far as they're concerned. There are no hardshipsgranted either. If you lose at this administrative hearing or do not request the hearing at all, the penalties are as follows:

FIRST TIME TEST FAILURE: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.

SECOND AND THIRD TEST FAILURE: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device which requires the driver to blow into the device before the vehicle will start. The driver must rent the device from an approved agency for a considerable monthly sum and pay a reinstatement fee of $200.00.

FOURTH TEST FAILURE: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device which requires the driver to blow into the device before the vehicle will start. There is a significant reinstatement fee.

FIFTH TEST FAILURE: Permanent revocation. The license is suspended for the rest of the person's lifetime. There is currently no hope for reinstatement.

Jail time  -

The Kansas DUI statute calls for jail time in every instance of a DUI. Simply pleading guilty and asking the Court to waive the jail time will not work - the judge is required to give you the stated jail time if plead guilty. Plea bargaining is NOT permitted in DUI cases in Kansas.

FIRST TIME DUI CONVICTION: A 48 consecutive hour stay is the minimum while the maximum sentence is six (6) months imprisonment, or, in the court's discretion, 100 hours of community service. In some cases, some jurisdictions may let a defendant spend the mandatory 48 hours jail time in a residential treatment program. Probation is available in some cases, but only after the mandatory 48 hour stay has been served.

SECOND TIME DUI CONVICTION: The jail sentence will range from 90 days to a full year. Probation will be granted only after 5 days of jail time have been served. It is possible that a person may be able to consider house arrest or a work release program as jail time.

THIRD TIME DUI CONVICTION: A third DUI conviction is considered a felony, requiring the individual to be labeled a convicted felon for the remainder of their life. The jail sentence will range from 90 days to a full year. Often prosecutors and Courts are much less likely to look at imposing a minimum sentence for a third time DUI like they may have been for a second time DUI. Probation for a third time DUI is only available once a person has served 90 days in custody. A skilled attorney may be able to get up to 88 of the 90 days served under house arrest or in a work release program.

FOURTH TIME DUI CONVICTION: A fourth time DUI conviction is also a felony. The jail sentence will run from 90 to 365 days. Once the sentence ordered by the Court is served, the Department of Corrections will monitor the individual for one year which will include mandatory alcohol treatment.

FIFTH TIME DUI CONVICTION: A fifth time DUI conviction is a felony. Once the sentence ordered by the Court is served, the Department of Corrections will monitor the individual for one year which will include mandatory alcohol treatment.

Fines -

In addition to losing your license and serving jail time, there are also significant expenses that follow a DUI conviction.

FIRST TIME DUI CONVICTION: A $500 - $1000 fine is mandated along with a $150 ADSAP fee. Court costs are also imposed.

SECOND TIME DUI CONVICTION: A $1000 - $1500 fine is mandated along with a $150 ADSAP fee. Court costs are also imposed.

THIRD TIME DUI CONVICTION: A $1500 - $2500 fine is mandated along with a $150 ADSAP fee. Court costs are also imposed.

FOURTH TIME DUI CONVICTION: A $2500 fine is mandated along with a $150 ADSAP fee. Court costs are also imposed.

FIFTH TIME DUI CONVICTION: A $2500 fine is mandated along with a $150 ADSAP fee. Court costs are also imposed.

Employment Effects  -

A DUI can affect your employment in numerous ways.

First, many employers will refuse to hire someone convicted of a DUI. This is especially true if the person has been convicted of a felony (third or more) DUI. Second, the license suspension that accompanies a DUI can make it difficult, if not impossible for people to get to work. Finally, the social stigma that accompanies a DUI can make it difficult to live a normal work life.

Higher car insurance rates  -

A DUI conviction can double or even triple your car insurance rates, if your insurance company doesn't decide to terminate your coverage. This can add up to thousand of dollars in extra costs over the years.

Numerous other effects  -

A DUI conviction can affect relationships with family and friends. Oftentimes car rental companies will not rent to persons convicted of a DUI. College and grad schools also look down on DUI convictions and a conviction could cost you scholarship money or even a chance of admission.The bottom line is this: If you find yourself charged with a DUI, you need immediate representation to protect your reputation and your livlihood. Call (913)406-0732 to schedule an appointment today.

The Inherent Flaws of DUI Testing, Including Field Side Sobriety Testing:

In most DUI cases, the strongest pieces of evidence for the State come from the Intoxilyzer and field side sobriety test (FST) results.  These tests are both highly flawed and can be challenged by an experienced Kansas DUI attorney.  

1.  Horizontal Gaze Nystagmus Test (HGN Test):

What is Nystagmus and why is it tested?

Nystagmus is a natural, normal phenomenon involving the involuntary jerking of the eyes. Alcohol and certain other drugs do not cause nystagmus, but may exaggerate or magnify it. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p.3 (2000)

What are the Causes of Exaggerated Nystagmus?

Possible causes of nystagmus other than the use of alcohol include: problems with the inner ear labyrinth; irrigating the ears with warm or cold water; influenza; streptococcus infection; vertigo; measles; syphilis; arteriosclerosis; Korchaff's syndrome; brain hemorrhage; epilepsy; hypertension; motion sickness; sunstroke; eye strain; eye muscle fatigue; glaucoma; changes in atmospheric pressure; consumption of excessive amounts of caffeine; excessive exposure to nicotine; aspirin; circadian rhythms; acute head trauma; chronic head trauma; some prescription drugs; tranquilizers; pain medication and anti-convulsant medication; barbiturates; disorders of the vestibular apparatus and brain stem; cerebellum dysfunction; heredity; diet; toxins; exposure to solvents; extreme chilling; eye muscle imbalance; lesions; continuous movement of the visual field past the eyes; and antihistimine use.

Recommended Procedures of Horizontal Gaze Nystagmus per the National HighwayTransportation Safety Administration:

The procedures for giving the standardized horizontal gaze nystagmus test are as follows:

"Begin by asking "are you wearing contact lenses", make a note whether or not the suspect wears contact lenses before starting the test.

"If the suspect is wearing eyeglasses, have them removed.

"Give the suspect the following instructions from a position of interrogation (FOR OFFICER SAFETY KEEP YOUR WEAPON AWAY FROM THE SUSPECT):

• "I am going to check your eyes."

• "Keep your head still and follow the stimulus with your eyes only."

• "Keep focusing on this stimulus until I tell you to stop."

"Position the stimulus approximately 12-15 inches from the suspect's nose and slightly above eye level. Check the suspect's eyes for the ability to track together. Move the stimulus smoothly together or one lags behind the other. If the eyes don't track together it could indicate apossible medical disorder, injury, or blindness.

"Next, check to see that both pupils are equal in size. If they are not, this may indicate a head injury.

"Check the suspect's left eye by moving the stimulus to your right. Move the stimulus smoothly, at a speed that requires about two seconds to bring the suspect's eye as far to the side as it can go.

While moving the stimulus, look at the suspect's eye and determine whether it is able to pursue smoothly . Now, move the stimulus all the way to the left, back across suspect's face checking if the right eye pursues smoothly. Movement of the stimulus should take approximately two seconds out and two seconds back for each eye. Repeat the procedure.

"After you have checked both eyes for lack of smooth pursuit, check the eyes for distinct nystagmus at maximum deviation beginning with the suspect's left eye. Simply move the object to the suspect's left side until the eye has gone as far to the side as possible. Usually, no white will be showing in the corner of the eye at maximum deviation. Hold the eye at that position for about four seconds, and observe the eye for distinct nystagmus. Move the stimulus all the way across the suspect's face to check the right eye holding that position for approximately four seconds. Repeat the procedure.

"After checking the eyes at maximum deviation, check for onset of nystagmus prior to 45 degrees. Start moving the stimulus to the right (suspect's left eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Now, move the stimulus to the left (suspect's right eye) at a speed that would take about four seconds for the stimulus to reach the edge of the suspect's shoulder. Watch the eye carefully for any sign of jerking. When you see it, stop and verify that the jerking continues. Repeat the procedure. NOTE: It is important to use the full four seconds when checking for the onset of nystagmus. If you move the stimulus too fast, you may go past the point of nystagmus or miss it altogether. If the suspect's eyes start jerking before they reach 45 degrees, check to see that some of the white of the eye is still showing on the side closest to the ear. If no white of the eye is showing, you have either taken the eye too far to the side (that is more than 45 degrees) or the person has unusual eyes that will not deviate very far to the side.

"NOTE: Nystagmus may be due to causes other than alcohol. These other causes include seizure medications, PCP, inhalants, barbiturates, and other depressants. A large disparity between the performance of the right and left eye may indicate a medical condition."

Source:  NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 6-8 (2000).

Most Importantly, Scoring of the Horizontal Gaze Nystagmus Test:

The three clues for the HGN test in each eye are as follows:

• The eye cannot follow an object smoothly
  
  
  
• Nystagmus is distinct when the eye is at maximum deviation
  
  
  
• The angle of onset of nystagmus is prior to 45 degrees.

As per the NHTSA Training Manuals, if you observe four or more clues total for both eyes, it is likely that the suspect's BAC is above 0.10. Using this criterion you will be able to classify correctly about 77% of your suspects with respect to whether they are above 0.10.

2. WALK-AND-TURN TEST

a. Procedures for the Walk-and-Turn Test

There are two basic parts to the Walk-and-Turn test: the balance stage and the walking stage.

Prior to the beginning of the test, always ask the suspect if he has had any injuries or other conditions which might affect his ability to walk or balance, including head, back, neck and leg injuries.

The following are the Standard Procedures for the Walk-and-Turn test:

"For standardization in the performance of this test, have the suspect assume the heel-to-toe stance by giving the following verbal instructions, accompanied by demonstrations:

• 'Place your left foot on the line' (real or imaginary). Demonstrate.
  
  
  
• 'Place your right foot on the line ahead of the left foot, with the heel of the right foot against the toe of the left foot'. Demonstrate.
  
  
  
• 'Place your arms down at your sides'. Demonstrate.
  
  
  
• 'Keep this position until I tell you to begin. Do not start to walk until told to do so'
  
  
  
• 'Do you understand the instructions so far?' (Make sure suspect indicates understanding.)
  
  
  

"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

• 'When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.' (Demonstrate 3 heel-to-toe steps.)
  
  
  
• 'When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this' (Demonstrate)
  
  
  
• 'While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.'
  
  
  
• 'Once you start walking, don't stop until you have completed the test.'
  
  
  
• 'Do you understand the instructions?' (Make sure suspect understands)
  
  
  
• 'Begin, and count your first step from the heel-to-toe position as 'One'.'

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII pp. 9-10 (2000)

b. Scoring and Interpretation of the Walk-and-Turn Test

The following are the NHTSA standardized clues for the Walk-and-Turn Test:

• Cannot keep balance while listening to instructions  . Record this clue only if the suspect does not maintain the heel-to-toe position throughout the instructions. The feet must actually break apart. Don't record this clue if the suspect merely sways or uses arm for balance.
  
  
  
• Starts before instructions are finished  . Record this clue if the suspect starts after being told not to start walking 'until I tell you to begin'.
  
  
  
• Stops while walking  . The suspect pauses for several seconds. Do not record if the suspect is merely walking slowly.
  
  
  
• Does not touch heel-to-toe  . Record this clue if there is more than one-half inch of space between the heel and toe on any step.
  
  
  
• Steps off the line  . The suspect steps so that one foot is entirely off the line.
  
  
  
• Uses arms to balance  . The suspect raises one or both arms more than 6 inches from the sides in order to maintain balance.
  
  
  
• Improper Turn  . The suspect removes the front foot from the line while turning. Also record this clue if the suspect has not followed directions as demonstrated, i.e. spins or pivots around.
  
  
  
• Incorrect Number of Steps  . Record this clue if the suspects takes more or fewer than nine steps in either direction.

Each clue is only scored one time even if more than one fault is seen. Two or more clues correctly classifies 68% of the suspects as having a BAC of 0.10 or above. The officer should limit his movement while the suspect is performing the test so as not to distract the suspect.

c. Test conditions for the Walk-and-Turn Test

According to NHTSA, the Walk-and-Turn Test requires a line that the suspect can see, and should be performed on a dry, hard, level, nonslippery surface. Original research indicated that persons with back, leg, middle ear problems, persons 50 pounds or greater overweight, and those over 65 years of age, had difficulty performing the test. (NOTE: Later NHTSA manuals have removed the weight comment, and also inserted the phrase 'imaginary line' at the instruction phase, even though original research always used a visible line.)

Individuals wearing heels more than 2 inches high should be given the option of removing their shoes.

3. ONE-LEGGED STAND TEST

a. Procedures for the One-Legged Stand Test

"Initiate the test by giving the following verbal instructions, followed by demonstrations.

• 'Please stand with your feet together and your arms down at your side, like this.' (Demonstrate)
  
  
  
• 'Do not start to perform the test until I tell you to do so.'
  
  
  
• 'Do you understand the instructions so far?' (Make sure suspects indicates understanding.)

"Explain the test requirements, using the following verbal instructions, accompanied by demonstrations:

• 'When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.' (Demonstrate one leg stance)
  
  
  
• 'You must keep both legs straight, arms at your side.'
  
  
  
• 'While holding that position, count out loud in the following manner: 'one thousand and one, one thousand and two, one thousand and three, until told to stop.' (Demonstrate a count, as follows: 'one thousand and one, one thousand and two, one thousand and three, etc.' Officer should not look at his foot when conducting the demonstration - OFFICER SAFETY.)
  
  
  
• 'Keep your arms at your sides at all times and keep watching the raised foot.'
  
  
  
• 'Do you understand?' (Make sure suspect indicates understanding.)
  
  
  
• 'Go ahead and perform the test.' (Officer should always time the 30 seconds. Test should be discontinued after 30 seconds.)

"Observe the suspect from a safe distance. If the suspect puts the foot down, give instructions to pick the foot up again and continue counting from the point at which the foot touched the ground. If the suspect counts very slowly, terminate the test after 30 seconds."

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 12-13 (2000)

b. Scoring and Interpretation of the One-Legged Stand Test

The NHTSA manual states that the officer should look for the following clues:

"A.  The suspect sways while balancing  . This refers to the side-to-side or back-and-forth motion while the suspect maintains the one-leg stand position.

B.  Uses arms for balance  . Suspect moves arms 6 or more inches from the side of the body to keep balance.

C.  Hopping  . Suspect is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.

D.  Puts foot down  . The suspect is not able to maintain the one-leg stand position, putting the foot down one or more times during the 30-second count."

NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL, HS 178 R2/00, Section VIII p. 13-14 (2000)

If the suspect scores two or more clues, there is a good chance his BAC is 0.10 or above, according to the original research. Using that criterion, you will accurately classify 65% of the people tested.

Officers must remain relatively motionless and observe the suspect from a safe distance so as to not interfere. If the suspect counts slowly, terminate the test after 30 seconds.

c. Test conditions for the One-Legged Stand Test

According to the 2000 NHTSA Manual, the surface must be level, dry, and a non-slippery surface. Persons 65 years of age, 50 pounds or more overweight, and those with leg, back and middle ear problems will have difficulty performing the test.

However, earlier editions of the standardized field sobriety testing student manuals from NHTSA contain much stronger language, such as the following:

"Certain individuals are likely to have trouble with this test even when sober. People over 60 often have very poor balance. (Since very few elderly people are stopped at roadside, specific guidelines have not been established for them on this test.)....In administering the test, make sure the suspects eyes are open and there is adequate lighting for him to have some frame of reference... In total darkness, the One-Leg Stand is difficult even for sober people." NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Improved Sobriety Testing, DOT-HS-806-512, p. 7 (1984).

D. SCIENTIFIC CRITICISMS OF THE STANDARDIZED FIELD SOBRIETY TESTS

Many experts have questioned the accuracy of the standardized field sobriety tests, the statistical data behind SFSTs, and the ability of officers to properly administer and interpret SFSTs in the field.

In one particular study, individuals who were completely sober were asked to perform the sfst's and also a set of 'normal-abilities' tests. The 'normal-abilities' test was comprised of exercises and questions which should be well known to individuals, such as one's address, phone number, and walking in a normal manner. Performances for each type of test were then videotaped. 14 police officers were asked to view the videotapes of the 21 sober individuals with 0.00 blood alcohol concentrations doing sfst's and normal-abilities testing. After viewing the 21 videos of sober individuals taking the standardized field tests, the police officers' believed that forty-six percent of the individuals had "too much to drink". Fifteen percent of the officers viewing the normal-abilities videos thought the individuals had too much to drink. S. Cole & R.H. Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, Perceptual and Motor Skills, Vol. 79, pp. 99-104 (1994). The authors concluded that SFSTs must be held to the same standards the scientific community would expect of any reliable and valid test of behavior, and that SFSTs should be examined and judged critically.

In another study, the authors concluded that the HGN test has a high baseline error and a dose/response relationship that varied greatly depending on whether the subject's BAC was falling or rising. In 52 videotapes of actual arrests for DUI, the authors found that the HGN test was improperly administered 51 times. JL Booker, End-position nystagmus as an indicator of ethanol intoxication, Science and Justice 2001: 41(2): 113-116 (2001)

In another study, a series of experiments was performed at the Rutgers University Alcohol Behavior Research Laboratory to test the ability of social drinkers, bartenders, and police officers to gauge the sobriety of individuals. All three subject groups - the social drinkers, bartenders, and police officers- correctly judged the subjects level of intoxication only 25 % of the time. Psychology, Public Policy and the Evidence for Alcohol Intoxication, American Psychologist p.1070 (Oct. 1983).

Other criticisms noted regarding the NHTSA field studies include:

"1) The field studies validated the arrest decisions of the officers, not the SFST's themselves;

2) The police officers and the degree of supervision in the field studies were not typical of typical DWI stops;

3) The studies are insufficiently documented for scientific papers;

4) The authors did not report the accuracy of arrest decisions for stops that were observed vs. those that were not, or for SFST's performed under adverse climatic conditions vs. those that were not, and

5) None of the SFST field studies have been published in peer-reviewed scientific journals."

Steve Rubenzer, Ph.D., The Psychometrics and Science of the Standardized Field Sobriety Tests,Part 1, The Champion, 48 (NACDL May 2003), Part 2, The Champion, 40 (NACDL, June 2003) (also available at www.stevenrubenzerphd.com).

Acknowledging that officers trained in conducting SFST's can have their skills degrade over time, and that modifications to the standardized procedures could result in an officer administering SFSTs according to outdated protocols, NHTSA recommends that law enforcement agencies conduct refresher training for SFST instructors and practitioners. NATIONAL HIGHWAY TRAFFIC SAFETY ADMIN., U.S. DEPT. OF TRANS., Development of a Standardized Field Sobriety Test (SFST) Training Management System, DOT-HS-809-400, (2001).

E. NON-VALIDATED SOBRIETY "TESTS"

A variety of so-called field sobriety tests are employed by police officers in the field during DUI investigations. None of these 'tests' has been statistically validated as reliable, nor have they been accepted in the medical or scientific community for the purpose of diagnosing alcohol intoxication.

The use of the term "test' for these non-validated exercises is a misnomer. Black's Law Dictionary defines a test as "Something by which to ascertain the truth respecting another thing: a criterion, a gauge, a standard, or norm". BLACK'S LAW DICTIONARY, (6  ^th  Ed. 1990) (West Publishing Co.)

Most of these non-validated 'tests' have arisen either from word-of-mouth between officers, or through antiquated methods that seemingly have not been discarded. These include:

1. The "Alphabet Test" - the variations employed are endless, but most involve saying the complete alphabet (without singing it), or stating a portion of the alphabet, such as starting from E and ending at U, or saying the alphabet backwards. In addition to a total lack of validation that the test can accurately separate sober individuals from those who are under the influence, common problems with this test include that many persons have not stated the alphabet since childhood, many persons do not speak English as their primary language, and that the inability to say the alphabet may be a product of sheer nervousness. Additionally, there has not been any standardization in scoring this exercise for DUI purposes.

2. The "Finger-to-Nose Test" - having its origin somewhere in the 1950's, this test seeks to have a person touch the tip of his nose with the tip of his finger, while tilting his head back as far as possible and keeping his eyes closed. The officer then calls out each hand, left, right, left, right, and then right left in an attempt to confused the subject. Besides a lack of validation, this exercise does not use standardized clues or scoring in order to establish what is a "pass" or "fail".

3. The "Pick-up-Coins Test" - most commonly used by the Chicago Police Department up until the 1970's, this test required the suspect to pick up the correct coin called by the officer (i.e. penny, dime, nickel, quarter).

4. The "Rhomberg Test" - having its origin in the detection of persons under the influence of drugs, the suspect is asked to close his eyes and tell the officer when 30 seconds have passed. The theory claimed is that a person under the influence of amphetamines will think 30 seconds has passed too quickly, while a central nervous depressant will cause the person to think that 30 seconds has passed too slowly. This "test" has yet to be accepted by the medical or scientific community.

5. The "Finger-to-Thumb Test" - the suspect is asked to touch his thumb to each fingertip in correct sequence starting with the index finger, and asked to count out loud "Four, three, two, one, one, two, three, four" and so forth.

6. The "Hand-pat Test" - the suspect opens the palm of the first hand upright, and then takes the other hand and pats his palm, flipping his second hand from palm to backside and so forth, sometimes while counting.

Phone: (866) 656-1268 - (913) 764-5010 - (913) 406-0732

Important statutes relevant to your Johnson County DUI case:

KSA 8-255   Restriction, suspension or revocation of driving privileges by division of vehicles; grounds; procedure for restriction, suspension or revocation; driver improvement clinics.
This is the statute which creates the subpoena power for the Kansas Department of
Revenue and further provides for the remedy of contempt if there is a failure to
comply with the subpoena. See K.S.A. 8-255(e) and Wulfkuhle v. Kansas Dept. of
Revenue, 234 Kan. 241, 671 P.2d 547 (1983).

KSA 8-259  Cancellation, suspension, revocation or denial of license by division; judicial review. (a) Except in the case of mandatory revocation under K.S.A. 8-254 or 8-286, and amendments thereto, mandatory suspension for an alcohol or drug-related conviction under subsection (b) of K.S.A. 8-1014, and amendments thereto, mandatory suspension under K.S.A. 8-262, and amendments thereto, or mandatory disqualification of the privilege to drive a commercial motor vehicle under subsection (a)(1)(A), (a)(1)(B), (a)(1)(C), (a)(2)(A), (a)(3)(A) or (a)(3)(B) of K.S.A. 8-2,142, and amendments thereto, the cancellation, suspension, revocation, disqualification or denial of a person's driving privileges by the division is subject to review. Such review shall be in accordance with the act for judicial review and civil enforcement of agency actions. In the case of review of an order of suspension under K.S.A. 8-1001 et seq., and amendments thereto, or of an order of disqualification under subsection (a)(1)(D) of K.S.A. 8-2,142, and amendments thereto, the petition for review shall be filed within 10 days after the effective date of the order and venue of the action for review is the county where the administrative proceeding was held or the county where the person was arrested. In all other cases, the time for filing the petition is as provided by K.S.A. 77-613, and amendments thereto, and venue is the county where the licensee resides. The action for review shall be by trial de novo to the court. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension, cancellation or revocation under the provisions of this act. Unless the petitioner's driving privileges have been extended pursuant to subsection (o) of K.S.A. 8-1020, and amendments thereto, the court on review may grant a stay or other temporary remedy pursuant to K.S.A. 77-616, and amendments thereto, after considering the petitioner's traffic violations record and liability insurance coverage. If a stay is granted, it shall be considered equivalent to any license surrendered. If a stay is not granted, trial shall be set upon 20 days' notice to the legal services bureau of the department of revenue. No stay shall be issued if a person's driving privileges are canceled pursuant to K.S.A. 8-250, and amendments thereto.      (b)   The clerk of any court to which an appeal has been takenunder this section, within 10 days after the final disposition of such appeal, shall forward a notification of the final disposition to the division.

KSA 8-1001 Tests for alcohol or drugs; requested by officer, grounds consent implied; administration of tests, when; procedures; immunity from liability; warning statement; search warrant, admissibility of test; availability of test result; remedial
nature of law. 

KSA 8-1001 is Kansas' "Implied Consent" statute.  It creates the “exception” to the search warrant requirement for seizure of driver’s blood, breath or urine and essentially states that by driving in Kansas, you are surrending your Constitutional Rights.

 

KSA 8-1002 Test refusal or failure; suspension of license; notice; procedure.
KSA 8-1002 sets forth the procedures which must be followed if someone either fails or refuses a chemical test.

KSA 8-1004 Same; additional test by own physician; effect of denial.
KSA 8-1004 creates the right to have independent testing done as soon as the person arrested has completed tests requested by law enforcement. Has teeth, because failure of law enforcement to honor request for independent testing will result in any test performed by law enforcement being inadmissible at the time of trial.  This statute can be crucial in defending a Johnson County DUI case or proposed driver's license suspension becuase if it can be proved that a driver asked for an independent test, but was denied the opportunity to take one, the remedy is suppression of the breath tests results.  Suppression will dramatically improve a driver's chances of acquittal and will almost always beat a proposed driver's license suspension.

KSA 8-1005  Evidence; test results admissible in prosecutions; weight to be given evidence. Less than .08 - “may be considered” More than .08 - “prima facie evidence that the defendant was under the influence” “. . . any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapable of safely driving a vehicle” may be considered.
See State v. Armstrong, 236 Kan 290, 689 P.2d 897 (1984). In Armstrong the Kansas Supreme Court ruled the results of a blood alcohol test taken outside the two hour window provided by statute were admissible. The length of time goes to the weight of the evidence rather than admissibility. Armstrong was partially superceded by statute. To find a per se violation the test must be taken within the two hour period. However, to find a violation under 8- 1567(a)(3) the blood alcohol test is admissible when taken outside the two hour period. State v. Pendleton, 18 Kan.App.2d 179, 849 P.2d 143 (1993). It was
recommended by the court in Armstrong that the admission of the test be accompanied by expert testimony to estimate what the defendant’s blood alcohol
level was at the time the violation was allegedly committed. This is merely a recommendation, not a requirement. So a proper foundation cannot be laid for a per se violation of the D.U.I. law if the test is taken outside the two hour period, which is in contravention of the procedures
approved by the KDHE and the Kansas Legislature.

KSA 8-1012 Preliminary Screening test of breath for alcohol concentration; request by officer,
grounds; notice required; refusal to take test is traffic infraction; use of results of test;
additional tests.
Interesting statute, provides that arresting officer “shall” give three oral notices to a
person before requesting that they take a preliminary screening test, but then states
that failure to do so is not to be “an issue or defense in any action.”
Statute also limits the admissibility of the test to those situations where the validity
of an arrest, or request to submit to further testing is made.
G. 8-1013 Definitions. As used in 8-1001 through 8-1010, 8-1012, 8-1014, 8-1015, 8-1016, 8-
1017 and 8-1018, and amendments thereto.
(a) “Alcohol concentration” definition makes the 2100 to 1, blood to breath ratio is
statutory in Kansas. Query, can the legislature legislate that a non-fact is true fact,
even where current medical proof is to the contrary.

      8-1020.   Administrative hearing; requirements; procedure. (a) Any licensee served with an officer's certification and notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may request an administrative hearing. Such request may be made either by:
      (1)   Mailing a written request which is postmarked 10 days after service of notice; or
      (2)   transmitting a written request by electronic facsimile which is received by the division within 10 days after service of notice.
      (b)   If the licensee makes a timely request for an administrative hearing, any temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto, shall remain in effect until the 30th day after the effective date of the decision made by the division.
      (c)   If the licensee fails to make a timely request for an administrative hearing, the licensee's driving privileges shall be suspended or suspended and then restricted in accordance with the notice of suspension served pursuant to K.S.A. 8-1002, and amendments thereto.
      (d)   Upon receipt of a timely request for a hearing, the division shall forthwith set the matter for hearing before a representative of the director and provide notice of the extension of temporary driving privileges. The hearing shall be held by telephone conference call unless the hearing request includes a request that the hearing be held in person before a representative of the director. The officer's certification and notice of suspension shall inform the licensee of the availability of a hearing before a representative of the director. Except for a hearing conducted by telephone conference call, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto.
      (e)   Except as provided in subsection (f), prehearing discovery shall be limited to the following documents, which shall be provided to the licensee or the licensee's attorney no later than five days prior to the date of hearing:
      (1)   The officer's certification and notice of suspension;
      (2)   in the case of a breath or blood test failure, copies of documents indicating the result of any evidentiary breath or blood test administered at the request of a law enforcement officer;
      (3)   in the case of a breath test failure, a copy of the affidavit showing certification of the officer and the instrument; and
      (4)   in the case of a breath test failure, a copy of the Kansas department of health and environment testing protocol checklist.
      (f)   At or prior to the time the notice of hearing is sent, the division shall issue an order allowing the licensee or the licensee's attorney to review any video or audio tape record made of the events upon which the administrative action is based. Such review shall take place at a reasonable time designated by the law enforcement agency and shall be made at the location where the video or audio tape is kept. The licensee may obtain a copy of any such video or audio tape upon request and upon payment of a reasonable fee to the law enforcement agency, not to exceed $25 per tape.
      (g)   Witnesses at the hearing shall be limited to the licensee, to any law enforcement officer who signed the certification form and to one other witness who was present at the time of the issuance of the certification and called by the licensee. The presence of the certifying officer or officers shall not be required, unless requested by the licensee at the time of making the request for the hearing. The examination of a law enforcement officer shall be restricted to the factual circumstances relied upon in the officer's certification.
      (h) (1)   If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether:
      (A)   A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and
      (D)   the person refused to submit to and complete a test as requested by a law enforcement officer.
      (2)   If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:
      (A)   A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
      (D)   the testing equipment used was certified by the Kansas department of health and environment;
      (E)   the person who operated the testing equipment was certified by the Kansas department of health and environment;
      (F)   the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;
      (G)   the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and
      (H)   the person was operating or attempting to operate a vehicle.
      (3)   If the officer certifies that the person failed a blood test, the scope of the hearing shall be limited to whether:
      (A)   A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;
      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;
      (D)   the testing equipment used was reliable;
      (E)   the person who operated the testing equipment was qualified;
      (F)   the testing procedures used were reliable;
      (G)   the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood; and
      (H)   the person was operating or attempting to operate a vehicle.
      (i)   At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, an affidavit of the custodian of records at the Kansas department of health and environment stating that the breath testing device was certified and the operator of such device was certified on the date of the test shall be admissible into evidence in the same manner and with the same force and effect as if the certifying officer or employee of the Kansas department of health and environment had testified in person. A certified operator of a breath testing device shall be competent to testify regarding the proper procedures to be used in conducting the test.
      (j)   At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, in which the report of blood test results have been prepared by the Kansas bureau of investigation or other forensic laboratory of a state or local law enforcement agency are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.
      (k)   At the hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification are false or insufficient and that the order suspending or suspending and restricting the licensee's driving privileges should be dismissed.
      (l)   Evidence at the hearing shall be limited to the following:
      (1)   The documents set out in subsection (e);
      (2)   the testimony of the licensee;
      (3)   the testimony of any certifying officer;
      (4)   the testimony of any witness present at the time of the issuance of the certification and called by the licensee;
      (5)   any affidavits submitted from other witnesses;
      (6)   any documents submitted by the licensee to show the existence of a medical condition, as described in K.S.A. 8-1001, and amendments thereto; and
      (7)   any video or audio tape record of the events upon which the administrative action is based.
      (m)   After the hearing, the representative of the director shall enter an order affirming the order of suspension or suspension and restriction of driving privileges or for good cause appearing therefor, dismiss the administrative action. If the representative of the director enters an order affirming the order of suspension or suspension and restriction of driving privileges, the suspension or suspension and restriction shall begin on the 30th day after the effective date of the order of suspension or suspension and restriction. If the person whose privileges are suspended is a nonresident licensee, the license of the person shall be forwarded to the appropriate licensing authority in the person's state of residence if the result at the hearing is adverse to such person or if no timely request for a hearing is received.
      (n)   The representative of the director may issue an order at the close of the hearing or may take the matter under advisement and issue a hearing order at a later date. If the order is made at the close of the hearing, the licensee or the licensee's attorney shall be served with a copy of the order by the representative of the director. If the matter is taken under advisement or if the hearing was by telephone conference call, the licensee and any attorney who appeared at the administrative hearing upon behalf of the licensee each shall be served with a copy of the hearing order by mail. Any law enforcement officer who appeared at the hearing also may be mailed a copy of the hearing order. The effective date of the hearing order shall be the date upon which the hearing order is served, whether served in person or by mail.
      (o)   The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee shall serve the secretary of revenue with a copy of the petition and summons. Upon receipt of a copy of the petition for review by the secretary, the temporary license issued pursuant to subsection (b) shall be extended until the decision on the petition for review is final.
      (p)   Such review shall be in accordance with this section and the act for judicial review and civil enforcement of agency actions. To the extent that this section and any other provision of law conflicts, this section shall prevail. The petition for review shall be filed within 10 days after the effective date of the order. Venue of the action for review is the county where the person was arrested or the accident occurred, or, if the hearing was not conducted by telephone conference call, the county where the administrative proceeding was held. The action for review shall be by trial de novo to the court and the evidentiary restrictions of subsection (l) shall not apply to the trial de novo. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension or suspension and restriction under the provisions of this act. If the court finds that the grounds for action by the agency have been met, the court shall affirm the agency action.
      (q)   Upon review, the licensee shall have the burden to show that the decision of the agency should be set aside.
      (r)   Notwithstanding the requirement to issue a temporary license in K.S.A. 8-1002, and amendments thereto, and the requirements to extend the temporary license in this section, any such temporary driving privileges are subject to restriction, suspension, revocation or cancellation as provided in K.S.A. 8-1014, and amendments thereto, or for other cause.
      (s)   Upon motion by a party, or on the court's own motion, the court may enter an order restricting the driving privileges allowed by the temporary license provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The temporary license also shall be subject to restriction, suspension, revocation or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for other cause.
      (t)   The facts found by the hearing officer or by the district court upon a petition for review shall be independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect the suspension or suspension and restriction to be imposed under this section.
      (u)   All notices affirming or canceling a suspension under this section, all notices of a hearing held under this section and all issuances of temporary driving privileges pursuant to this section shall be sent by first-class mail and a United States post office certificate of mailing shall be obtained therefor. All notices so mailed shall be deemed received three days after mailing, except that this provision shall not apply to any licensee where such application would result in a manifest injustice.
      (v)   The provisions of K.S.A. 60-206, and amendments thereto, regarding the computation of time shall be applicable in determining the time for requesting an administrative hearing as set out in subsection (a) and to the time for filing a petition for review pursuant to subsection (o) and K.S.A. 8-259, and amendments thereto.
32-1138 Same; preliminary screening test.
This is the “BUI” (boating while under the influence) statute which allows for a
preliminary screening test. Same requirements and shortcomings as the DUI statute.
I. 65-1,107 Secretary of health and environment to adopt rules and regulations relating to
procedures, testing protocols, qualifications of personnel and equipment of certain
laboratories; list of approved preliminary screening devices for testing of breath for
law enforcement purposes.
This statute gives the Secretary of Health and Environment the authority to adopt
rules and regulations for testing: (a) schedule I and II controlled substances; (b)
“human breath for law enforcement puposes” except for “preliminary screening
devices;” (c) training, certification and periodic testing of persons who operate breath
testing equipment; (d) criteria for “preliminary screening devices;” and (e) create a
list of approved “preliminary screening devices.”
J. 65-1,108 Unlawful to perform certain tests unless performed in approved laboratory; penalty
for violation; exclusions. Class B Misdemeanor.
This is one of those “interesting statutes” in that it makes it a crime for “any person
or laboratory to perform tests to evaluate biological specimens for the presence of
controlled substances . . .” unless that lab has been approved by the Secretary of
Health and Environment to do so.
K. 65-1,108a Information obtained through certain tests conducted by approved laboratories
confidential; exceptions; penalties for violations. Class C misdemeanor.
This statute makes the results of such testing confidential, with certain exceptions.
L. 65-1,109 Testing human breath for law enforcement purposes; unlawful acts; penalty. Class
C misdemeanor.
This statute makes it a misdemeanor to use unqualified personnel or equipment to
test human breath.
2. Kansas Administrative Regulations, Department of Health & Environment, Article 32, Testing
Human Breath for Law Enforcement Purposes.
K.A.R. 28-32-1 General Provisions. This K.A.R. deals generally with breath testing and
breath testing equipment. However it also provides for “annual inspections”
of each law enforcement agency and their equipment by KDHE.
(b)(3) Equipment shall be operated strictly according to description provided by manufacturer and
approved by department of health and environment.
B. K.A.R. 28-32-2 Evaluation Study. Mandates participation in the “performance evaluation
program” by all law enforcement agencies who do “evidential breath
testing.”
(3)(b) Failure to test and report proficiency specimens or unsatisfactory results from such testing
shall constitute reason for revoking certification of an operator.
C. K.A.R. 28-32-4 Certification of Law Enforcement Agencies. Annual certification
requirements.
(b) All certification of facilities shall expire at 12:00 midnight, December 31 of the year of its issue.
D. K.A.R. 28-32-5 Certification of Breath Alcohol Instrument Operators. Annual certification
requirements.
(c) All certification of personnel shall expire at 12 o’clock midnight, December 31 of the year of its
issue. . .
E. K.A.R. 28-32-6 Criteria for Preliminary screening Devices.
(b) . . .Preliminary breath test devices shall meet the manufacturer’s performance criteria when
operated according to the written operating instructions.
(c) . . . Specific instructions of each instrument shall be provided by the manufacturer describing the
proper operating procedure in clear, concise and accurate language.
F. K.A.R. 28-32-7 Preliminary Screening Devices Approved for Testing of Breath for Law
Enforcement Purposes.
(b) . . . Training shall strictly adhere to the operational instructions supplied by the manufacturer.