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Administrative hearing lawyer

Johnson County, Kansas driving under the influence (DUI/DWI) driver's license suspension hearing lawyer-attorneys-law office: 

Our Johnson County law firm's driving under the influence/DUI/DWI lawyers represent drivers who are facing an administrative driver's license suspension due to a driving under the influence (DUI/DWI) arrest in Johnson County, Kansas.

Call (913)764-5010 to speak to a Johnson County driving under the influence (DUI-DWI) lawyer-attorney today. You may also send us an email at info@kcatty.com. 

Almost every Johnson County, KS driving under the influence (DUI/DWI) arrest will include a proposed (and automatic) driver's license suspension. The driver's license suspension resulting from your Johnson County drunk driving arrest will automatically be enforced unless a driver (or preferably, their attorney) requests an administrative hearing within 14 calendar days (unless the 14th day falls on a weekend or legal holiday) of the date they are served with a DC-27 , which is the pink sheet the police officer gave you, usually when the officer took your driver's license. 

 

Occurrence, as determined by the KDR

Proposed driver's license suspension for a blood, breath, or urine test between .08 and .149

Proposed driver's license suspension for a blood, breath, or urine test over .150

Proposed driver's license suspension for a refusal of a blood, breath, or urine test

First lifetime "occurrence" in Kansas or Johnson County

30 day driver’s license suspension, followed by a 330 day restriction

1 year driver’s license suspension

1 year driver’s license suspension, followed by a 1 year ignition interlock restriction

First lifetime "occurrence in Kansas or Johnson County (under 21 old on date of offense)

1 year driver’s license suspension

1 year driver’s license suspension

1 year driver’s license suspension

First lifetime "occurrence" in Kansas or Johnson County (CDL holder)

1 year suspension of CDL, in addition to the regular driver’s license penalties

1 year suspension of CDL, in addition to the regular driver’s license penalties

1 year suspension of CDL, in addition to the regular driver’s license penalties

Second lifetime "occurrence in Kansas or Johnson County

1 year driver’s license suspension followed by a 1 year ignition interlock restriction

1 year driver’s license suspension followed by a 2 year ignition interlock restriction

2 year driver’s license suspension

Second lifetime "occurrence in Kansas or Johnson County (CDL holder)

Permanent CDL revocation, in addition to the regular driver’s license penalties

Permanent CDL revocation, in addition to the regular driver’s license penalties

Permanent CDL revocation, in addition to the regular driver’s license penalties

Third lifetime "occurrence" in Kansas or Johnson County

1 year driver’s license suspension followed by a 1 year ignition interlock restriction

1 year driver’s license suspension followed by a 3 year ignition interlock restriction

3 year driver’s license suspension

Fourth lifetime "occurrence" in Kansas or Johnson County

1 year driver’s license suspension followed by a 1 year ignition interlock restriction

1 year driver’s license suspension followed by a 4 year ignition interlock restriction

10 year driver’s license suspension

Fifth lifetime "occurrence" in Kansas in Johnson County

Permanent revocation

Permanent revocation

Permanent revocation

 

Our Olathe law firm's Johnson County DUI lawyer can file paperwork, called a "request for administrative hearing, with the Kansas Department of Revenue ("KDR") which will allow you to drive pending an administrative hearing, assuming your driver's license was not already suspended when you were arrested. 

These hearings usually take place anywhere from 90 - 270 days from the date of arrest.  Call our Olathe law office today at (913)764-5010 to speak to a Johnson County DUI/DWI lawyer about preserving you driver's license status!

If you have been charged with a Johnson County DUI/DWI, please keep one thing in mind above everything else you've read so far:  in most Johnson County DUI cases, you only have 14 calendar days from the date of your arrest to request an administrative hearing to determine if your driver's license will be suspended. 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 qualified Johnson County DUI attorney to determine what "occurrence" they consider this to be 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 of alcohol 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 driver's license suspension ranges from 30 days (for some test failure first time offenders who are over 21 and blew less than .15 on the intoxilyzer 8000) to permanent revocation of driving privileges, so 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 (or recording a blood/urine test between .08 and .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(or recording similar blood/urine tests);

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

(4) 3 years driver's license 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;or

(6) Permanent driver's license suspension for a fifth time breath test/chemical test refusal or breath test or chemical test failure!

The proposed Kansas driver's license suspensions resulting from Johnson County driving under the influence (DUI/DWI) arrests are absolute, with no "hardship" licenses being granted by the Kansas Department of Revenue. The proposed driver's license suspension in your case will depend on your driving record and the circumstances surrounding your case. The 14-day deadline is absolute - if you do not request the hearing within the 14-day time period, the suspension proposed by the Kansas Department of Revenue will automatically be entered on your driving record, 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 or you could see yourself without a driver's license for an extremely long time.

Drivers arrested for DUI/DWI in Johnson County, KS are entitled to an administrative hearing with the Kansas Department of Revenue where the driver and his/her Johnson County drunk driving lawyer can challenge the grounds upon which a driver's license is suspended.  However, this right is only triggered if a "request for administrative hearing" is sent in within 14 days of the date of the driver's arrest.

At the administrative hearing, the Kansas Department of Revenue will attempt to take your license from you. The Department of Revenue views you losing your driver's license as just part of another day's work. They do not care if your job will fire you if you lose your driver's license.  The KDR does not care that your family could suffer serious hardships if you are not able to drive your kids to school or activities. They do not care if you're a single parent or have a child with special needs.  The DoR's Driver Control Bureau exists in this capacity to take away your driver's license and ignore the consequences that you and your family may suffer as a result. To keep your driver's license, you need a Johnson County DUI attorney who knows how to fight the Kansas Department of Revenue and knows how to find holes in law enforcements' actions and paperwork that may allow you to beat the proposed driver's license suspension.

Our law office's Johnson County 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 initial 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 they 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 helpful 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; 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 for those accused of DUI in Johnson County.

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 during the DUI arrest 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) whether your DUI arrest fits criteria for a limited number of other due process or constitutional issues.

If you are successful at the hearing, or if the arresting officer fails to appear without requesting a continuance of the hearing in writing, then 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.

Important Cases regarding administrative hearings and driver's license suspensions:

Martin v. Ks. Dept. of Revenue 285 Kan. 625, 176 P.3d 938 (2008)
The driver was stopped by a law enforcement officer for a traffic offense. As a result of that stop, Martin was found to be intoxicated and his driver's license was suspended by the KDR. In the district court, Martin contended the vehicle stop which resulted in obtaining incriminating evidence of intoxication violated his Fourth Amendment right to be free from unreasonable searches and seizures. As a result, Martin sought exclusion of the incriminating evidence and reversal of the order suspending his driver's license. The district court agreed with Martin, finding the law enforcement officer misinterpreted the traffic law and, consequently, did not have reasonable suspicion to stop Martin's vehicle. On appeal, our court focused on the differences between a criminal proceeding and an administrative proceeding and ultimately held the legality of the vehicle stop was not relevant in a driver's license suspension proceeding. Our court reversed the district court and reaffirmed Martin's suspension. Martin appealed to our Supreme Court. The Supreme Court declined to apply the exclusionary rule and suppress the incriminating evidence obtained during the illegal stop. The exclusionary rule does not apply in appeals from administrative license suspensions even though petitioners may raise Fourth Amendment questions during administrative appeals and the Fourth Amendment applies in such contexts. A petitioner may raise Fourth Amendment claims, but such claims have no practical effect (meaning such claims do not trigger the exclusion of resultant evidence) in the administrative context.

Mitchell v. Ks. Dept. Of Revenue 32 Kan.App.2d 298, 81 P.3d 1258 (2004)
The Court of Appeals upheld a driver‘s license suspension. The Court held police officer did not violate the statute allowing a person to have an additional test for alcohol or drugs conducted by a physician of their own choosing, and the trial court‘s admission of commercial truck driver's BAC test results was not an abuse of discretion. Mitchell was arrested by the trooper and taken to the sheriff's department where he failed a BAC test. After the test was administered, Mitchell requested he be taken to a hospital for an independent BAC test. At the hospital, the trooper was told the test could not be performed unless the highway patrol could be billed for it. The highway patrol could not be billed for it, and the hospital would not allow Mitchell to pay for his own test. Mitchell did not request to be taken anywhere else for an independent test. Because Mitchell failed the BAC test, the KDR suspended his commercial driver's license for 1 year. Mitchell's driving privileges were also suspended for 30 days with restrictions in place for the remainder of one year. In his appeal to the district court, KDR's rulings were affirmed. On appeal, the Court of Appeals held the trooper did not violate the statute allowing a person to have an additional test for alcohol or drugs conducted by a physician of the person's own choosing, because the hospital staff refused to administer an additional BAC test to Mitchell and Mitchell failed to request that he be taken to a different testing site. The Court also held admitting the State‘s BAC into evidence was not an abuse of discretion in the proceeding to suspend Mitchell‘s license.

Standish v. Ks. Dept. of Revenue 235 Kan. 900, 683 P.2d 1276 (1984)
This case involves an appeal by the Department of Revenue of a district court‘s reversal of suspension of plaintiff‘s license for refusal to take a chemical test. After being stopped, failing field tests, and being given the Miranda warnings, plaintiff was asked to take a breath test. He responded he wanted to talk to his attorney first. He was then taken to jail, unsuccessfully attempted to reach his attorney, and again declined to take the test because he could not speak with his attorney. Fifteen to thirty minutes later, plaintiff asked to take the test but was told it was too late, the arresting officer having returned to patrol duty. The trial court held plaintiff had rescinded his refusal within a reasonable time. The Supreme Court holds as a matter of policy the test should be encouraged, hence an original refusal can be rescinded if: it is made within a reasonable time; if the test would still be accurate; the testing equipment was still readily available; there would be no substantial inconvenience or expense to the police; and the individual is still in custody of the arresting officer and has been under observation the entire time. The response of wanting advice of counsel is held to be refusal, but in this case, since it immediately followed the Miranda warning, it was confusing to the plaintiff. The SC then adopts the standards of Berkemer v. McCarty, 468 US 420 (1984), which requires Miranda warnings only after the SC holds there is no constitutional right to counsel prior to determining whether to submit to the test or not. The SC also ―suggests‖ the officer give a warning of the consequences of refusal and the fact there is no right to counsel before deciding on the test.

Boeken v. Ks. Dept. of Revenue 90 P.3d 379, 2004 WL 1191609 (2004)
The Court of Appeals upheld a driver‘s license suspension. The Court held the arresting officer had probable cause to arrest licensee for DUI even without considering the PBT. The officer initially responded to a disturbance call in Hutchinson. Upon his arrival, the officer approached a parked pickup in which Boeken was seated on the driver's side. The officer observed alcoholic beverage containers in the truck bed and then questioned Boeken regarding his alcohol consumption. According to the officer, Boeken stated he drank heavily at a bar just before driving to the location in Halstead. Boeken told the officer he had stopped there because he was too drunk to continue driving. The officer tried to get Boeken to perform two field sobriety tests: the nine-step walk and turn test and the one leg stand test. After being instructed on how to perform the tests and seeing them demonstrated, Boeken could not even begin the first one. He said he was too drunk and knew he would fail. Before the second test, he told the officer not to bother because he was too drunk to do that test as well. The officer testified Boeken failed to follow his directions on the first test and began to do the test before being instructed to do so. He asked Boeken if he had any questions; Boeken said yes but did not ask any. Boeken agreed to take a PBT. The result was .161 BAC. The officer arrested Boeken for driving under the influence of alcohol. Boeken later took and failed an Intoxilyzer 5000 breath test. After an administrative hearing, the Department of Revenue suspended Boeken's driving privileges. The trial court affirmed. The Court held substantial competent evidence supported the trial court's determination the officer had probable cause to arrest Boeken for DUI prior to requesting him to submit to a PBT.

Robinson v. Ks. Dept. of Revenue 37 Kan.App.2d 425, 154 P.3d 508 (2007)
A State Trooper initiated a stop of a noncommercial vehicle driven by Robinson. Robinson held a commercial driver‘s license issued by the State of New Mexico. After observing Robinson and conducting field sobriety tests and a PBT, the trooper placed Robinson under arrest for DUI. The trooper provided Robinson with the oral and written notice required by KSA 8-1001(f) that is on the front side of the DC-70 form. The trooper did not advise Robinson as to how a test failure, test refusal, or DUI conviction would affect his commercial driver‘s license. Following receipt of the implied consent notices, Robinson took a breath alcohol test, which he failed. Based on the test results, Robinson was issued a notice of suspension of his driver's license. At KDR administrative hearing, Robinson challenged the trooper‘s failure to advise him the results of the breath alcohol test would affect his commercial driver‘s license. The administrative hearing officer affirmed the suspension of Robinson's driving privileges. Robinson filed a petition for judicial review claiming the failure to notify him of the effect on his commercial driver‘s license pursuant to KSA 8-2,142(a)(2) was a due process violation. The district court affirmed his suspension. On appeal, Robinson claims the DC-70 form did not accurately reflect the law pertaining to him. Robinson seeks a reversal of the district court's decision and reinstatement of his commercial driver's license. The Court of Appeals held the trooper who stopped Robinson, who was driving a noncommercial vehicle, on suspicion of DUI was not required, under the implied consent law, to advise Robinson that if he failed a sobriety test or if he refused testing, his commercial driver‘s license could be administratively suspended for one year, in contrast to 30-day suspension of noncommercial driver‘s license. The court also found Robinson‘s procedural due process rights were not violated as Robinson received all of the notice to which he was statutorily entitled and he was afforded the opportunity to be heard at both the administrative hearing and the de novo review before the district court. Affirmed.

Campbell v. Ks. Dept. of Revenue 25 Kan.App.2d 430, 962 P.2d 1150 (1998)
The Court of Appeals affirmed a district court judgment granting the Department of Revenue's motion for involuntary dismissal of the appeal of a driver‘s license suspension. The Court held results from a single breath test authorized by implied consent statute had sufficient scientific reliability to be admitted into evidence, and police officer had probable cause to arrest motorist for DUI when officer asked motorist to perform field sobriety tests. The officer observed motorist speeding in early morning hours and smelled liquor on motorist's breath when he approached motorist; motorist admitted having a few drinks, and his eyes appeared glazed and blood shot. The district court granted KDR‘s motion for involuntary dismissal after Campbell had presented his evidence. On appeal, the Court of Appeals held as a matter of law the testing procedure used to determine the alcohol concentration in Campbell's breath was reliable. The Court also refused to decide whether probable cause to arrest for DUI must be shown before field sobriety tests are to be given, but the Court did conclude the arresting officer in this case did have probable cause before administering the tests. Affirmed.

Kim v. Ks. Dept. of Revenue 22 Kan.App.2d 319, 916 P.2d 47 (1996)
The Court of Appeals affirmed KDR‘s suspension of motorist‘s driver's license for refusing to submit to BAT. The Court held driver's due process rights were not violated by KDR‘s failure to furnish him with interpreter at administrative refusal hearing, and implied consent statute was constitutional. The Court stated in an appeal from administrative agency decision, person is limited to issues he or she raises at administrative hearing, andnoted motorist failed to raise issues of providing an interpreter and effective assistance of counsel at the administrative hearing. The Court held motorist‘s due process rights were not violated in that driver had several opportunities to request interpreter and driver's form requesting administrative hearing did not indicate he did not understand English. On the implied consent issue, the Court stated person's failure to understand or speak English shall not be defense person did not understand written or oral notice required by implied consent statute. Also, because implied consent statute was remedial law and was to be liberally construed to promote health, safety, and welfare of public, statute would be construed as constitutional.

Rodenhouse v. Ks. Dept. of Revenue 153 P.3d 570, 2007 WL 806024 (2007)
A State Trooper observed a vehicle driven by Rodenhouse with an inoperable brake light driving on Interstate 70. The trooper pursued the vehicle and activated his emergency lights. The vehicle traveled an additional one-quarter to one-half mile before pulling over at an exit ramp. Upon approaching the vehicle, the trooper noticed a faint odor of alcohol. The trooper observed Rodenhouse's eyes were bloodshot and glassy, and he had ―a slight problem with his speech.‖ Rodenhouse denied he had been drinking but admitted he had an open container containing an alcoholic beverage inside the vehicle. The trooper asked Rodenhouse to exit his vehicle, at which point the trooper smelled an odor of alcohol on Rodenhouse's person and noticed Rodenhouse was ―unsteady‖ while exiting his vehicle. Rodenhouse refused to take either field sobriety tests or a PBT. The trooper placed Rodenhouse under arrest for DUI, driving while suspended, and transporting an open container. Rodenhouse was then transported to the county jail, where he refused to take an evidentiary breath test. After an administrative hearing, KDR suspended Rodenhouse‘s driver‘s license. Rodenhouse filed a petition for judicial review with the district court, which affirmed the suspension, finding the trooper had reasonable grounds to request the breath test. On appeal, Rodenhouse asserts at the time the trooper requested Rodenhouse submit to the evidentiary breath test, the trooper did not have reasonable grounds Rodenhouse was DUI. The court noted while Rodenhouse exhibited no signs of impaired driving, he smelled of alcohol, had at least some difficulty communicating, was unsteady while exiting his vehicle, had bloodshot and glassy eyes, and was irritated and emotionally volatile while answering questions. In addition, the court noted two open containers were found in Rodenhouse's vehicle, one he admitted to possessing. Accordingly, the court found the trooper had reasonable grounds to request Rodenhouse submit to the chemical breath test and upheld the administrative suspension. Affirmed.

Batliner v. Ks. Dept. of Revenue 90 P.3d 378, 2004 WL 1176606 (05/21/04)
Deputy Rushmeyer stopped Batliner for speeding and failing to maintain a single lane. Batliner was later placed under arrest for DUI. He was read the implied consent advisory along with the under 21 advisory and agreed to take the test. The test indicated a BAC of .182. The KDR suspended Batliner's driving privileges for a period of one year. Upon appeal Batliner stated the notice was improper for under 21 years of age because the phrase "but less than .08" was not read or in print. The Court determined 8-1001 (g) any failure to give the notice is required by K.S.A. 8-1567a and amendments shall not invalidate any action as a result of the requirements of that section. The Court noted Batliner was given written and oral notification of the following: (1) if he tested .08 or greater, his license would be suspended for one year (2) if he tested .02 or greater his license would be suspended for thirty days on his first occurrence and for one year on his second). The Court determined the DC-70 document Batliner was clearly informed the actual risk to him if he submitted to the breath test. Batliner was adequately informed of the law under K.S.A. 8-1001(f)(F) and K.S.A. 8-1567a (b)(2). The Court stated substantial compliance with statutory provisions was sufficient. The Court stated they must review whether or not Batliner suffered actual prejudice because of the omitted language of the implied consent. The Court was unable to find prejudice. The Court indicated the trial Court could either sustain the revocation order of the Department or reverse the revocation order and direct a reinstatement of the license. The statute did not authorize the trial Court to modify or change the order of the Department revoking a license.

Schoen v. Ks. Dept. of Revenue 31 Kan.App.2d 820, 74 P.3d 588 (2003)
The Court of Appeals affirmed a driver‘s license suspension. The Court held substantial competent evidence supported the finding the sheriff's deputy substantially complied with KDHE protocol for using breath testing machine, and the fact results from breath test were suppressed in motorist's criminal prosecution for DUI of alcohol did not collaterally estop the district court from admitting evidence in driver's license suspension case. Following his arrest, the Intoxilyzer 5000 test revealed Schoen had a blood alcohol level in excess of .08. Following an administrative hearing February 20, 2002, the KDR suspended Schoen's driving privileges based upon the test failure. Schoen filed a petition for review in Osborne County District Court, and a bench trial was held July 22, 2002. At the bench trial, the deputy testified he failed to visually check the tubing running from the simulator solution to the Intoxilyzer 5000 to make sure it was properly attached. Schoen argued to the court this violated KDHE protocol and, accordingly, the Intoxilyzer results should be inadmissible at trial. The district court rejected the argument, finding the deputy had "substantially complied" with KDHE protocol. The district court admitted the evidence and upheld the driver's license suspension. Schoen was also prosecuted in Osborne County District Court for driving under the influence of alcohol arising from the same incident. In the criminal case, the same district judge sustained Schoen's motion to suppress the Intoxilyzer results, finding that the State failed to meet its burden that the evidence was admissible. Schoen appealed. The Court of Appeals affirmed the district court. They held the sheriff's deputy substantially complied with KDHE protocol for using breath testing machine, despite the deputy's failure to visually check tubing running from simulator solution to machine to make sure it was properly attached. They noted the deputy testified he could hear the machine was operating normally, he would have heard difference if tubing were not properly attached, and machine would not even operate if tubing were not properly attached. The Court also held the fact the district court suppressed evidence regarding Schoen‘s breath test in the criminal prosecution for DUI did not collaterally estop the district court from admitting the evidence in driver's license suspension case. They noted the record on appeal in the license suspension case contained nothing from related criminal case, precluding meaningful appellate review of issue, and the state in license suspension case was not in privity with the state in DUI prosecution so as to invoke collateral estoppel doctrine.

Meehan v. Ks. Dept. of Revenue 25 Kan.App.2d 183, 959 P.2d 940 (1998)
The Court of Appeals affirmed KDR‘s suspension of a driver‘s license following failure of a breath test for alcohol concentration. The Court held statutory and regulatory provisions provided adequate due process protection against erroneous deprivation of driver's license, and expert opinion different test for alcohol concentration or different protocol for test would be more reliable was not relevant to issues involved in proceeding. The Court noted breath testing was sufficiently reliable, and motorists had statutory right to obtain independent test for alcohol concentration. The Court also stated expert opinion that different test for alcohol concentration or different protocol for test would be more reliable was not relevant to issues involved in proceeding concerning suspension of driving privileges and, therefore, was properly excluded by the district court. Affirmed.

Martin v. Ks. Dept. of Revenue 139 P.3d 787, 2006 WL 2337235 (2006)
A Cloud County Sheriff‘s Deputy observed Martin leave a bar and drive without using his headlights. The Deputy activated his emergency lights and attempted to pull Martin over for the traffic infraction. As the Deputy followed Martin, he turned into an alleyway without using his signal, parked behind his place of business, and walked quickly toward the business‘ back door. The Deputy made contact with Martin as he entered his business and followed him into the store. Martin was swaying, stumbling, and staggering, said he had been drinking, and the Deputy detected a strong odor of alcohol on Martin‘s breath as well as bloodshot eyes. The Deputy had Martin perform field sobriety tests, including the HGN, and then placed him under arrest for DUI. Martin‘s BAC was measured by the Intoxilyzer at .235. After an administrative hearing, KDR suspended Martin‘s license for one year. Martin appeals the district court‘s judgment affirming KDR‘s suspension of his driver‘s license. Martin argued the officer lacked reasonable suspicion for the traffic stop, lacked probable cause to arrest Martin for DUI, and failed to comply with the KDHE protocol requiring officers to keep test subjects within their ―immediate presence‖ during the deprivation period. The court found the traffic infraction provided reasonable suspicion for the traffic stop. The court also found Martin‘s actions, his admissions, and the strong odor of alcohol emanating from his breath provided probable cause to arrest Martin for DUI. Finally, the court found while the officer stepped out of the testing room several times for only a few seconds at a time during the deprivation period, there was no evidence from the videotape Martin belched, burped, vomited, regurgitated, or otherwise introduced substance into his mouth from his stomach during the testing period. Therefore, the testing procedures substantially complied with the KDHE‘s ―immediate presence‖ requirement.

Fehlhafer v. State 23 Kan.App.2d 193, 930 P.2d 1087 (1996)
The Court of Appeals reversed a district court order enjoining KDR‘s suspension of a driver‘s license. The Court of Appeals held a prosecutor does not have the authority to waive suspension of a driver‘s license. Motorist had entered plea agreement in which prosecutor agreed not to suspend his driver's license in exchange for motorist's no contest plea to charge of DUI. Motorist filed Chapter 60 suit to enjoin suspension of his license. Upon a motion to dismiss or change venue, the district court ruled KDR was bound by the prosecutor's agreement. On appeal, the Court of Appeals held venue of action was proper in county where KDR had taken official action of suspension, and not in county where plea agreement was entered, and KDR was not bound by agreement as prosecutor had no authority to waive sanction which was in sole authority of KDR.

Kempke v. Ks. Dept. of Revenue 281 Kan 770, 133 P.3d 104 (2006) (COR 5/15/06)
Kempke was stopped by Ellsworth County Deputy Tyree, for failing to have an illuminated license tag light. Deputy Tyree observed Kempke was lethargic and had slurred speech and watery, bloodshot eyes. Deputy Tyree also observed what appeared to be a bottle of alcohol under the passenger‘s leg, which was later revealed to be an open bottle of Lord Calvert whiskey. Deputy Tyree suspected Kempke was under the influence of alcohol and decided to investigate Kempke for DUI. There were two other occupants in the car and Deputy Tyree requested assistance from Officer Lawrence of the Ellsworth Police Department. Deputy Tyree asked Kempke perform field sobriety tests; Kempke consented to the HGN and the PBT. Officer Lawrence administered the PBT to Kempke, but Deputy Tyree was present during the test. Kempke‘s BAC registered at .05. Deputy Tyree arrested Kempke for DUI and took him to the Ellsworth County Sheriff‘s Office. Kempke refused to submit to an evidentiary test for alcohol and/or drugs and Deputy Tyree completed a DC-27 form certifying Kempke refused the test. At Kempke‘s administrative hearing, Deputy Tyree was present and was examined by Kempke‘s attorney. Officer Lawrence was not present. Following the administrative hearing, KDR issued an order suspending Kempke‘s driver‘s license. Kempke filed a petition for judicial review and following a de novo trial, the district court found Kempke‘s due process rights were violated because he was not allowed to examine Officer Lawrence at the administrative hearing. KDOR appealed the decision. The court held Kempke‘s due process rights were not violated because he could not call Officer Lawrence as a witness at the administrative hearing. While the officer who administrated the PBT was a ―relevant witness,‖ Kempke‘s due process rights were not violated when he did not get the opportunity to examine him at the hearing, because Kempke‘s license was not suspended until after the de novo appeal to the district court where he could call Officer Lawrence as a witness.

Green v. Ks. Dept. of Revenue 127 P. 3d 349, 2006 WL 265238 (2006) ***UNPUBLISHED***
A Hays Police officer observed Green make an improper turn and initiated a traffic stop. When the officer first approached Green, she noticed Green‘s eyes were bloodshot. The officer asked Green for his driver‘s license and proof of insurance and returned to her vehicle to write Green a citation for the improper turn. When she returned to give Green the citation, she noticed an odor of alcohol coming from Green. About 6-7 minutes after the stop, she asked Green to step out of the vehicle and perform a field sobriety test. Green advised he had been drinking earlier. Based on his poor performance in the field sobriety test, the officer had Green submit to a PBT, which showed Green‘s blood alcohol level was above .08. At that point, about 22 minutes after the stop, Green was arrested for DUI. After an administrative hearing, KDR suspended Green‘s driver‘s license and the district court affirmed the suspension. Green appealed the suspension of his driver‘s license following his arrest for DUI arguing the officer did not have reasonable suspicion to detain him for a DUI investigation after the purpose of the traffic stop had been accomplished. The court noted an officer is not required to turn a blind eye to indicia of criminal activity unrelated to the traffic offense that are observed during the course of the stop. Based on the officer‘s reasonable suspicion Green was intoxicated, she investigated the matter further as she was entitled and obligated to do so. The court held Green‘s continued detention following the issuance of the traffic citation was justified under the circumstances.

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS

      8-1014.   Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction; increased penalties for blood or breath alcohol concentration of .15 or greater; ignition interlock device. (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

      (1)   On the person's first occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's second occurrence, suspend the person's driving privileges for two years;

      (3)   on the person's third occurrence, suspend the person's driving privileges for three years;

      (4)   on the person's fourth occurrence, suspend the person's driving privileges for 10 years; and

      (5)   on the person's fifth or subsequent occurrence, revoke the person's driving privileges permanently.

      (b) (1)   Except as provided by subsections (c) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (A)   On the person's first occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days;

      (B)   on the person's second, third or fourth occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device; and

      (C)   on the person's fifth or subsequent occurrence, the person's driving privileges shall be permanently revoked.

      (2)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person's blood or breath alcohol concentration is .15 or greater, the division shall:

      (A)   On the person's first occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (B)   on the person's second occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

      (C)   on the person's third occurrence, suspend the person's driving privileges for one year and at the end of the suspension restrict the person's driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

      (D)   on the person's fourth occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

      (E)   on the person's fifth or subsequent occurrence, the person's driving privileges shall be permanently revoked.

      (3)   Whenever a person's driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device, proof of the installation of such device, for the entire restriction period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (c)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (1)   On the person's first occurrence, suspend the person's driving privileges for one year. If the person's blood or breath alcohol concentration is .15 or greater, the division shall at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's second and subsequent occurrences, penalties shall be imposed pursuant to subsection (b).

      (d)   Whenever the division is notified by an alcohol and drug safety action program that a person has failed to complete any alcohol and drug safety action education or treatment program ordered by a court for a conviction of a violation of K.S.A. 8-1567, and amendments thereto, the division shall suspend the person's driving privileges until the division receives notice of the person's completion of such program.

      (e)   Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person's driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person's driving privileges were suspended while awaiting any hearing or final order authorized by this act.

      If a person's driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

      (f)   If the division has taken action under subsection (a) for a test refusal or under subsection (b) or (c) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) or (c) for an alcohol or drug-related conviction.

      (g)   Upon restricting a person's driving privileges pursuant to this section, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

      (h)   Any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer's vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer's vehicle or business.

  Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS

      8-1001.   Tests for alcohol or drugs; request by officer, grounds; consent implied; administration of tests, when; procedures; immunity from liability; duty to provide driver notice; refusal to comply or test result exceeding limit, license suspension; search warrant, admissibility of test; availability of test result; remedial nature of law. (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.

      (b)   A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If the officer has 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 to believe that the person was 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, or was under the age of 21 years while having alcohol or other drugs in such person's system; and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a, and amendments thereto, or involving 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, in violation of a state statute or a city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2). The test or tests under paragraph (2) shall not be required if a law enforcement officer has reasonable grounds to believe the actions of the operator did not contribute to the accident or collision. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.

      (c)   If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.

      (d)   A law enforcement officer may direct a medical professional described in this section to draw a sample of blood from a person:

      (1)   If the person has given consent and meets the requirements of subsection (b);

      (2)   if medically unable to consent, if the person meets the requirements of paragraph (2) of subsection (b); or

      (3)   if the person refuses to submit to and complete a test, if the person meets the requirements of paragraph (2) of subsection (b).

      (e)   When so directed by a law enforcement officer through a written statement, the medical professional shall withdraw the sample as soon as practical and shall deliver the sample to the law enforcement officer or another law enforcement officer as directed by the requesting law enforcement officer as soon as practical, provided the collection of the sample does not jeopardize the person's life, cause serious injury to the person or seriously impede the person's medical assessment, care or treatment. The medical professional authorized herein to withdraw the blood and the medical care facility where the blood is drawn may act on good faith that the requirements have been met for directing the withdrawing of blood once presented with the written statement provided for under this subsection. The medical professional shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent.

      (f)   Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document provided by law enforcement.

      (g)   If a person must be restrained to collect the sample pursuant to this section, law enforcement shall be responsible for applying any such restraint utilizing acceptable law enforcement restraint practices. The restraint shall be effective in controlling the person in a manner not to jeopardize the person's safety or that of the medical professional or attending medical or health care staff during the drawing of the sample and without interfering with medical treatment.

      (h)   A law enforcement officer may request a urine sample upon meeting the requirements of paragraph (1) of subsection (b) and shall request a urine sample upon meeting the requirements of paragraph (2) of subsection (b).

      (i)   If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by persons of the same sex as the person being tested and shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. When possible, the supervising person shall be a law enforcement officer. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence. If the person is medically unable to provide a urine sample in such manner due to the injuries or treatment of the injuries, the same authorization and procedure as used for the collection of blood in subsections (d) and (e) shall apply to the collection of a urine sample.

      (j)   No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.

      (k)   Before a test or tests are administered under this section, the person shall be given oral and written notice that: (1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both;

      (2)   the opportunity to consent to or refuse a test is not a constitutional right;

      (3)   there is no constitutional right to consult with an attorney regarding whether to submit to testing;

      (4)   if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person's driving privileges will be suspended for one year for the first occurrence, two years for the second occurrence, three years for the third occurrence, 10 years for the fourth occurrence and permanently revoked for a fifth or subsequent occurrence;

      (5)   if the person submits to and completes the test or tests and the test results show for the first occurrence:

      (A)   An alcohol concentration of .08 or greater, the person's driving privileges will be suspended for 30 days for the first occurrence; or

      (B)   an alcohol concentration of .15 or greater, the person's driving privileges will be suspended for one year;

      (6)   if the person submits to and completes the test or tests and the test results show an alcohol concentration of .08 or greater, the person's driving privileges will be suspended for one year for the second, third or fourth occurrence and permanently revoked for a fifth or subsequent occurrence;

      (7)   if the person is less than 21 years of age at the time of the test request and submits to and completes the tests and the test results show an alcohol concentration of .08 or greater, the person's driving privileges will be suspended for one year except the person's driving privileges will be permanently revoked for a fifth or subsequent occurrence;

      (8)   refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both;

      (9)   the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of avehicle while under the influence of alcohol or drugs, or both; and

      (10)   after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.

      (l)   If a law enforcement officer has reasonable grounds to believe that the person has 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, the person shall also be provided the oral and written notice pursuant to K.S.A. 8-2,145 and amendments thereto. Any failure to give the notices required by K.S.A. 8-2,145 and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. If a law enforcement officer has reasonable grounds to believe that the person has been driving or attempting to drive a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age, the person also shall be given the notices required by K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section.

      (m)   After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the test results show a blood or breath alcohol concentration of .08 or greater, the person's driving privileges shall be subject to suspension, or suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.

      (n)   The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

      (o)   If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .04 or greater, the person shall be disqualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .08 or greater, or the person refuses a test, the person's driving privileges shall be subject to suspension, or suspension and restriction, pursuant to this section, in addition to being disqualified from driving a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.

      (p)   An officer shall have probable cause to believe that the person operated a vehicle while under the influence of alcohol or drugs, or both, if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to a person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a search warrant under the authority of K.S.A. 22-2501, and amendments thereto.

      (q)   Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

      (r)   It shall not be a defense that the person did not understand the written or oral notice required by this section.

      (s)   No test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.

      (t)   Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

      (u)   Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

      (v)   This act is remedial law and shall be liberally construed to promote public health, safety and welfare.

      (w)   As used in this section, "serious injury" means a physical injury to a person, as determined by law enforcement, which has the effect of, prior to the request for testing:

      (1)   Disabling a person from the physical capacity to remove themselves from the scene;

      (2)   renders a person unconscious;

      (3)   the immediate loss of or absence of the normal use of at least one limb;

      (4)   an injury determined by a physician to require surgery; or

      (5)   otherwise indicates the person may die or be permanently disabled by the injury.

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS

      8-1002.   Test refusal or failure; suspension of license; notice; procedure. (a) Whenever a test is requested pursuant to this act and results in either a test failure or test refusal, a law enforcement officer's certification shall be prepared. If the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, a separate certification pursuant to K.S.A. 8-2,145, and amendments thereto, shall be prepared in addition to any certification required by this section. The certification required by this section shall be signed by one or more officers to certify:

      (1)   With regard to a test refusal, that: (A) There existed 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 to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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)   With regard to a test failure, that: (A) There existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (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 result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.

      (3)   With regard to failure of a breath test, in addition to those matters required to be certified under subsection (a)(2), that: (A) The testing equipment used was certified by the Kansas department of health and environment; (B) the testing procedures used were in accordance with the requirements set out by the Kansas department of health and environment; and (C) the person who operated the testing equipment was certified by the Kansas department of health and environment to operate such equipment.

      (b)   For purposes of this section, certification shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required. The signed certification or a copy or photostatic reproduction thereof shall be admissible in evidence in all proceedings brought pursuant to this act, and receipt of any such certification, copy or reproduction shall accord the department authority to proceed as set forth herein. Any person who signs a certification submitted to the division knowing it contains a false statement is guilty of a class B nonperson misdemeanor.

      (c)   When the officer directing administration of the testing determines that a person has refused a test and the criteria of subsection (a)(1) have been met or determines that a person has failed a test and the criteria of subsection (a)(2) have been met, the officer shall serve upon the person notice of suspension of driving privileges pursuant to K.S.A. 8-1014, and amendments thereto. If the determination is made while the person is still in custody, service shall be made in person by the officer on behalf of the division of vehicles. In cases where a test failure is established by a subsequent analysis of a breath, blood or urine sample, the officer shall serve notice of such suspension in person or by another designated officer or by mailing the notice to the person at the address provided at the time of the test.

      (d)   In addition to the information required by subsection (a), the law enforcement officer's certification and notice of suspension shall contain the following information: (1) The person's name, driver's license number and current address; (2) the reason and statutory grounds for the suspension; (3) the date notice is being served and a statement that the effective date of the suspension shall be the 30th day after the date of service; (4) the right of the person to request an administrative hearing; and (5) the procedure the person must follow to request an administrative hearing. The law enforcement officer's certification and notice of suspension shall also inform the person that all correspondence will be mailed to the person at the address contained in the law enforcement officer's certification and notice of suspension unless the person notifies the division in writing of a different address or change of address. The address provided will be considered a change of address for purposes of K.S.A. 8-248, and amendments thereto, if the address furnished is different from that on file with the division.

      (e)   If a person refuses a test or if a person is still in custody when it is determined that the person has failed a test, the officer shall take any license in the possession of the person and, if the license is not expired, suspended, revoked or canceled, shall issue a temporary license effective until the 30th day after the date of service set out in the law enforcement officer's certification and notice of suspension. If the test failure is established by a subsequent analysis of a breath or blood sample, the temporary license shall be served together with the copy of the law enforcement officer's certification and notice of suspension. A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged. Within five days after the date of service of a copy of the law enforcement officer's certification and notice of suspension the officer's certification and notice of suspension, along with any licenses taken, shall be forwarded to the division.

      (f)   Upon receipt of the law enforcement officer's certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person's driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.

      (g)   The division shall prepare and distribute forms for use by law enforcement officers in giving the notice required by this section.

      (h)   The provisions of K.S.A. 60-206 and amendments thereto regarding the computation of time shall be applicable in determining the effective date of suspension set out in subsection (d).

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS

      8-1015.   Same; authorized restrictions of driving privileges; ignition interlock device. (a) When subsection (b)(1) of K.S.A. 8-1014, and amendments thereto, requires or authorizes the division to place restrictions on a person's driving privileges, the division shall restrict the person's driving privilegesto driving only under the circumstances provided by subsections (a)(1), (2), (3) and (4) of K.S.A. 8-292 and amendments thereto.

      (b)   In lieu of the restrictions set out in subsection (a), the division, upon request of the person whose driving privileges are to be restricted, may restrict the person's driving privileges to driving only a motor vehicle equipped with an ignition interlock device, approved by the division and obtained, installed and maintained at the person's expense. Prior to issuing such restricted license, the division shall receive proof of the installation of such device.

      (c)   When a person has completed the one-year suspension pursuant to subsection (b)(2) of K.S.A. 8-1014, and amendments thereto, the division shall restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device, approved by the division and maintained at the person's expense. Proof of the installation of such device, for the full year of the restricted period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (d)   Upon expiration of the period of time for which restrictions are imposed pursuant to this section, the licensee may apply to the division for the return of any license previously surrendered by the licensee. If the license has expired, the person may apply to the division for a new license, which shall be issued by the division upon payment of the proper fee and satisfaction of the other conditions established by law, unless the person's driving privileges have been suspended or revoked prior to expiration.

Contact our Olathe, Kansas law offices for a DUI consultation today.

Kansas attorney Jeremiah Johnson provides legal representation to clients in Olathe, Kansas City, Kansas, and in surrounding communities throughout Johnson County, such as Overland Park, Leawood, Prairie Village, Lenexa, Mission, Mission Hills, Mission Woods, Shawnee, Gardner, Lenexa, Spring Hill, Westwood, Merriam, Fairway, Edgerton, De Soto, Roeland Park, and Stillwell.

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8-1020

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

Article 10.--DRIVING UNDER INFLUENCE OF ALCOHOL OR DRUGS; RELATED PROVISIONS

 

      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.

KSA 8-1014, the Kansas Statute dealing with driver’s license suspensions:

Suspension and restriction of driving privileges for test refusal, test failure or alcohol or drug-related conviction; increased penalties for blood or breath alcohol concentration of .15 or greater; ignition interlock device. (a) Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person refuses a test, the division, pursuant to K.S.A. 8-1002, and amendments thereto, shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd occurrence, suspend the person's driving privileges for two years;

      (3)   on the person's 3rd occurrence, suspend the person's driving privileges for three years;

      (4)   on the person's 4th occurrence, suspend the person's driving privileges for 10 years; and

      (5)   on the person's 5th or subsequent occurrence, revoke the person's driving privileges permanently.

      (b) (1)   Except as provided by subsections (c) and (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for 30 days, then restrict the person's driving privileges as provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days;

      (B)   on the person's 2nd, 3rd or 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device; and

      (C)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (2)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person fails a test or has an alcohol or drug-related conviction in this state and the person's blood or breath alcohol concentration is .15 or greater, the division shall:

      (A)   On the person's 1st occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;

      (B)   on the person's 2nd occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for two years to driving only a motor vehicle equipped with an ignition interlock device;

      (C)   on the person's 3rd occurrence, suspend the person's driving privileges for one year and at the end of the suspension restrict the person's driving privileges for three years to driving only a motor vehicle equipped with an ignition interlock device;

      (D)   on the person's 4th occurrence, suspend the person's driving privileges for one year and at the end of the suspension, restrict the person's driving privileges for four years to driving only a motor vehicle equipped with an ignition interlock device; and

      (E)   on the person's 5th or subsequent occurrence, driving privileges shall be permanently revoked.

      (3)   Whenever a person's driving privileges have been restricted to driving only a motor vehicle equipped with an ignition interlock device, proof of the installation of such device, for the entire restriction period, shall be provided to the division before the person's driving privileges are fully reinstated.

      (c)   Except as provided by subsection (e) and K.S.A. 8-2,142, and amendments thereto, if a person who is less than 21 years of age fails a test or has an alcohol or drug-related conviction in this state, the division shall:

      (1)   On the person's 1st occurrence, suspend the person's driving privileges for one year. If the person's blood or breath alcohol concentration is .15 or greater, the division shall at the end of the suspension, restrict the person's driving privileges for 1 year to driving only a motor vehicle equipped with an ignition interlock device;

      (2)   on the person's 2nd and subsequent occurrences, penalties shall be imposed pursuant to subsection (b).

      (d)   Whenever the division is notified by an alcohol and drug safety action program that a person has failed to complete any alcohol and drug safety action education or treatment program ordered by a court for a conviction of a violation of K.S.A. 8-1567, and amendments thereto, the division shall suspend the person's driving privileges until the division receives notice of the person's completion of such program.

      (e)   Except as provided in K.S.A. 8-2,142, and amendments thereto, if a person's driving privileges are subject to suspension pursuant to this section for a test refusal, test failure or alcohol or drug-related conviction arising from the same arrest, the period of such suspension shall not exceed the longest applicable period authorized by subsection (a), (b) or (c), and such suspension periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of such suspension as authorized by subsection (a), (b) or (c), such person shall receive credit for any period of time for which such person's driving privileges were suspended while awaiting any hearing or final order authorized by this act.

      If a person's driving privileges are subject to restriction pursuant to this section for a test failure or alcohol or drug-related conviction arising from the same arrest, the restriction periods shall not be added together or otherwise imposed consecutively. In addition, in determining the period of restriction, the person shall receive credit for any period of suspension imposed for a test refusal arising from the same arrest.

      (f)   If the division has taken action under subsection (a) for a test refusal or under subsection (b) or (c) for a test failure and such action is stayed pursuant to K.S.A. 8-259, and amendments thereto, or if temporary driving privileges are issued pursuant to K.S.A. 8-1020, and amendments thereto, the stay or temporary driving privileges shall not prevent the division from taking the action required by subsection (b) or (c) for an alcohol or drug-related conviction.

      (g)   Upon restricting a person's driving privileges pursuant to this section, the division shall issue a copy of the order imposing the restrictions which is required to be carried by the person at any time the person is operating a motor vehicle on the highways of this state.

      (h)   Any person whose license is restricted to operating only a motor vehicle with an ignition interlock device installed may operate an employer's vehicle without an ignition interlock device installed during normal business activities, provided that the person does not partly or entirely own or control the employer's vehicle or business.

 

Things to consider choosing a Johnson County DUI attorney to fight for your driver's license:

 

Choosing a driving under the influence attorney/lawyer for your case is an extremely important decision.  The DUI laws in Johnson County,  Kansas are some of the toughest in the Country and call for a jail sentence and driver's license suspension for every conviction.  You simply cannot afford to put your case in the hands of the wrong attorney.

The DUI attorneys in our law office believe that you should feel comfortable with your DUI attorney and suggest that you ask some of the following questions:

1.  How often does the DUI attorney take cases to trial in front of a judge?

The lawyers and staff in our Johnson County law office prepare every case as though it was going to trial, even though most cases end in a diversion or with a plea.  

The two main advantages of our "ready for trial" approach are that: (1) our attorneys and staff are constantly looking for ways to win or improve our clients’' cases which leads to better results for our clients; and (2) Johnson County prosecutors understand that our law firm's DUI attorneys are prepared for trial which we believe helps us when negotiating advantageous resolutions for our clients.

Of course, our law offices' approach also means that if our DUI client's case proceeds to trial, we will be very well prepared.

 

2.  How often does the DUI attorney take DUI cases to jury trials in Johnson County District Court?

If you choose to exercise your right to a jury trial, you should consider choosing an attorney who has experience with driving under the influence (DUI/DWI) trials in Johnson County.

Jury trials require a tremendous amount of work to prepare for and to conduct.  Additionally, it is advantageous to hire a DUI attorney who understands the jury trial process and how jury trial are conducted in the various divisions of Johnson County District Court.

Believe it or not, some attorneys who handle DUI cases in Johnson County have never taken a case to a jury trial.  

 

3.  How often does the DUI attorney challenge proposed driver's license suspension cases?  How often is the attorney successful?

Almost every Johnson County DUI arrest will include a separate proceeding with the Kansas Department of Revenue where the KDR is attempting to suspend your driver's license for a period of 30 days, 1 year, all the way to up a lifetime suspension, depending on your driving record.  

The KDR wins the vast majority of these proposed license suspension cases, but the lawyers in our office believe in challenging every proposed license suspension.  There are no plea agreements, diversions, or hardship licenses that result from these hearings, so there is no incentive not to fight the proposed driver's license suspension.

You owe it to yourself to hire a Johnson County DUI attorney who has experience with these hearings, who understands the issues that can be successful, and who can help you deal with the negative consequences of a license suspension.

 

4.  Does the attorney focus on DUI cases, or are they a general practice office?

DUI cases in Johnson County and elsewhere in Kansas are very unique cases that require the services of a skilled and knowledgeable attorney.  Johnson County drunk driving cases are even significantly different from other criminal cases because DUI is often a "status crime," meaning you are being charged not because you hurt someone or damaged something, but simply because a police officer believes you could not safely drive your vehicle.

Since DUI cases are so unique, the issues, which may be presented in a driver’s defense, are also often very unique.   For instance, only in DUI cases, does the certification of a breath test instrument (such as the Intoxilyzer 8000) come into play.  Only in DUI cases is there a mandatory 20-minute observation period that must be honored or the breath test is ruled inadmissible.

There are literally hundreds of ways to win a DUI case; you owe it to yourself to hire a Johnson County DUI attorney who can thoroughly analyze the unique facts in your case.

 

4.  Does the attorney understand Constitutional law?

Constitutional law is a big part of a successful DUI defense practice.  This is because certain Constitutional law violations by police officers can lead to the suppression of evidence.  What this means is that, if a Court agrees with a DUI client's Motion to Suppress, then the Court will rule that certain evidence cannot be used by the prosecution.

We have all heard of Miranda rights, but there are a number of other rights that come into play in a Johnson County DUI/DWI case.  For example, the police must have a valid reason to pull you over, the police must have probable cause to make a DUI arrest, and the police must inform you of certain rights before requesting a breath, blood, or urine sample from you.

Successful Motions to Suppress are some of the best ways to win a Johnson County DUI case.  Make sure your driving under the influence attorney understands the Constitutional issues that are relevant in your case.

 

5.  Does the attorney understand the intricacies of the field side sobriety tests?

Most Johnson County DUI cases involve the arresting officer asking the driver to perform "standardized field side sobriety tests," often referred to as "FSTs."  These tests are often used as a reason for the officer to arrest you and as evidence that you were intoxicated.

The lawyers and staff in our law office believe that the FSTs are junk science at best.  Our DUI attorneys know these tests verbatim and have given them to hundreds of people, both sober and intoxicated.  The result is almost always the same; the subject "fails" the tests, at least as they are supposed to be graded.

The FSTs are designed to be failed and should be aggressively challenged by your DUI attorney.  In our office, we strive to know these tests better than the Johnson County law enforcement officers themselves so we can challenge the officers' conclusions in trial and at administrative hearings.

Make sure you hire an attorney who understands the FSTs and can show the Court and jury how they are flawed.

 

6.  Does the attorney understand the intricacies of the Intoxilyzer 8000 breath test instrument? 

As mentioned above, the breath test machine used in Johnson County DUI cases is far from reliable or accurate.  It is based on poor science and is susceptible to a number of conditions that can cause false readings.

The Intoxilyzer 8000's results are also suceptible to the actions of Johnson County law enforcement officers who have figured out how to insure that the results are higher than they should be.  For instance, police in Johnson County will often tell a driver to "keep blowing, keep blowing, keep blowing" in an effort to get deep lung air from the driver.  Deep lung air is much richer in alcohol than normal lung air, which leads to higher results.  The intoxilyzer 8000 only requires a 1 second breath sample, any longer samples will lead to higher than normal results.

The bottom line is clear:  You have too much at stake to hire the wrong DUI attorney to represent you.  Call our office today at (913)764-5010 to speak to an experienced Johnson County DUI lawyer

 

Things to consider choosing a Johnson County DUI attorney:

Choosing a driving under the influence attorney/lawyer for your case is an extremely important decision.  The DUI laws in Johnson County,  Kansas are some of the toughest in the Country and call for a jail sentence and driver's license suspension for every conviction.  You simply cannot afford to put your case in the hands of the wrong attorney.

The DUI attorneys in our law office believe that you should feel comfortable with your DUI attorney and suggest that you ask some of the following questions:

1.  How often does the DUI attorney take cases to trial in front of a judge?

The lawyers and staff in our Johnson County law office prepare every case as though it was going to trial, even though most cases end in a diversion or with a plea.  

The two main advantages of our "ready for trial" approach are that: (1) our attorneys and staff are constantly looking for ways to win or improve our clients’' cases which leads to better results for our clients; and (2) Johnson County prosecutors understand that our law firm's DUI attorneys are prepared for trial which we believe helps us when negotiating advantageous resolutions for our clients.

Of course, our law offices' approach also means that if our DUI client's case proceeds to trial, we will be very well prepared.

 

2.  How often does the DUI attorney take DUI cases to jury trials in Johnson County District Court?

If you choose to exercise your right to a jury trial, you should consider choosing an attorney who has experience with driving under the influence (DUI/DWI) trials in Johnson County.

Jury trials require a tremendous amount of work to prepare for and to conduct.  Additionally, it is advantageous to hire a DUI attorney who understands the jury trial process and how jury trial are conducted in the various divisions of Johnson County District Court.

Believe it or not, some attorneys who handle DUI cases in Johnson County have never taken a case to a jury trial.  

 

3.  How often does the DUI attorney challenge proposed driver's license suspension cases?  How often is the attorney successful?

Almost every Johnson County DUI arrest will include a separate proceeding with the Kansas Department of Revenue where the KDR is attempting to suspend your driver's license for a period of 30 days, 1 year, all the way to up a lifetime suspension, depending on your driving record.  

The KDR wins the vast majority of these proposed license suspension cases, but the lawyers in our office believe in challenging every proposed license suspension.  There are no plea agreements, diversions, or hardship licenses that result from these hearings, so there is no incentive not to fight the proposed driver's license suspension.

You owe it to yourself to hire a Johnson County DUI attorney who has experience with these hearings, who understands the issues that can be successful, and who can help you deal with the negative consequences of a license suspension.

 

4.  Does the attorney focus on DUI cases, or are they a general practice office?

DUI cases in Johnson County and elsewhere in Kansas are very unique cases that require the services of a skilled and knowledgeable attorney.  Johnson County drunk driving cases are even significantly different from other criminal cases because DUI is often a "status crime," meaning you are being charged not because you hurt someone or damaged something, but simply because a police officer believes you could not safely drive your vehicle.

Since DUI cases are so unique, the issues, which may be presented in a driver’s defense, are also often very unique.   For instance, only in DUI cases, does the certification of a breath test instrument (such as the Intoxilyzer 8000) come into play.  Only in DUI cases is there a mandatory 20-minute observation period that must be honored or the breath test is ruled inadmissible.

There are literally hundreds of ways to win a DUI case; you owe it to yourself to hire a Johnson County DUI attorney who can thoroughly analyze the unique facts in your case.

 

4.  Does the attorney understand Constitutional law?

Constitutional law is a big part of a successful DUI defense practice.  This is because certain Constitutional law violations by police officers can lead to the suppression of evidence.  What this means is that, if a Court agrees with a DUI client's Motion to Suppress, then the Court will rule that certain evidence cannot be used by the prosecution.

We have all heard of Miranda rights, but there are a number of other rights that come into play in a Johnson County DUI/DWI case.  For example, the police must have a valid reason to pull you over, the police must have probable cause to make a DUI arrest, and the police must inform you of certain rights before requesting a breath, blood, or urine sample from you.

Successful Motions to Suppress are some of the best ways to win a Johnson County DUI case.  Make sure your driving under the influence attorney understands the Constitutional issues that are relevant in your case.

 

5.  Does the attorney understand the intricacies of the field side sobriety tests?

Most Johnson County DUI cases involve the arresting officer asking the driver to perform "standardized field side sobriety tests," often referred to as "FSTs."  These tests are often used as a reason for the officer to arrest you and as evidence that you were intoxicated.

The lawyers and staff in our law office believe that the FSTs are junk science at best.  Our DUI attorneys know these tests verbatim and have given them to hundreds of people, both sober and intoxicated.  The result is almost always the same; the subject "fails" the tests, at least as they are supposed to be graded.

The FSTs are designed to be failed and should be aggressively challenged by your DUI attorney.  In our office, we strive to know these tests better than the Johnson County law enforcement officers themselves so we can challenge the officers' conclusions in trial and at administrative hearings.

Make sure you hire an attorney who understands the FSTs and can show the Court and jury how they are flawed.

 

6.  Does the attorney understand the intricacies of the Intoxilyzer 8000 breath test instrument? 

As mentioned above, the breath test machine used in Johnson County DUI cases is far from reliable or accurate.  It is based on poor science and is susceptible to a number of conditions that can cause false readings.

The Intoxilyzer 8000's results are also suceptible to the actions of Johnson County law enforcement officers who have figured out how to insure that the results are higher than they should be.  For instance, police in Johnson County will often tell a driver to "keep blowing, keep blowing, keep blowing" in an effort to get deep lung air from the driver.  Deep lung air is much richer in alcohol than normal lung air, which leads to higher results.  The intoxilyzer 8000 only requires a 1 second breath sample, any longer samples will lead to higher than normal results.

The bottom line is clear:  You have too much at stake to hire the wrong DUI attorney to represent you.  Call our office today at (913)764-5010 to speak to an experienced Johnson County DUI lawyer