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Desoto DUI/DWI

 

 

DeSoto DUI/DWI lawyer | driving under the influence attorney trial/diversion | driver's license suspension law firm refusal failure hardship

Desoto, KS driving under the influence (DUI/DWI) lawyer-law firm-attorney

Our Johnson County law office provides experienced representation for all Desoto driving under the influence (DUI-DWI) charges and at administrative hearings regarding driver's license suspensions

If you have been arrested for or charged with DUI in Desoto or elsewhere in Johnson County, you want a lawyer with extensive knowledge of the drunk driving laws in DeSoto and Johnson County. You need an attorney who understands how to interpret and challenge breathalyzer results, and who can effectively represent you at a drivers license suspension or drivers license revocation proceeding. You want a DeSoto DUI-DWI lawyer who will work every aspect of your case, looking for ways to secure better results in your case.  Most importantly, when looking for reprentation for your Desoto driving under the influence case, you want a DUI lawyer who will treat you with courtesy and respect and not just a file.

At the Law Offices of Jeremiah Johnson, LLC, we represent men and women charged with DUI (driving under the influence) in DeSoto and throughout Johnson County. Contact us  to schedule a free initial consultation.

The Desoto and Kansas DUI statutes are some of the toughest in the entire country with license suspensions and jail time required for every DUI conviction in Kansas - even for first time convictions of people with no criminal record! While this site contains a good summary of the laws you'll be encountering, every DUI case is unique and you should contact an attorney to get the information relevant to your unique case

Learn more about how Desoto, Kansas DUI cases proceed in DeSoto Municipal Courtcop car lights

DeSoto, Kansas Driving Under the Influence charges/arrests involve two distinct and separate aspects:

(1) The Criminal Proceedings, which are resolved in the Desoto Municipal Court, or Johnson County District Court (for felony DUI cases).  This is the portion where the prosecuting jurisdiction is trying to put you in jail, force you to complete probation, levy significant fines, and require alcohol treatment and/or classes.

(2) The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureau which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license.

You can win one and lose the other, win both, or lose both.   

Penalties: 

If you are charged with a DUI in Desoto, you are facing:

1. Jail time - A first time conviction is punishable by up to 6 months in the county jail.  This office has had considerable success in reducing penalties levied for first time convictions to the statutorily minimum 48 hours in jail.  In some cases, a skilled Desoto DUI attorney can secure the CWIPS (community weekend intervention program) class which allows the jail time to be served in a a facility other than the county jail.

A second conviction for an Desoto, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. KSA 8-1567 states that the defendant must serve at least five consecutive days in custody before probation is granted, but after hearing arguments from a skilled Desoto DUI attorney, the Desoto Municipal Court Judge can order the defendant to serve only 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the statutory 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required.

A third conviction for an Desoto DUI (or any other Kansas DUI) is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Desoto DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. A third time conviction will be prosecuted in Johnson County District Court as Desoto Municipal Court does not usually have jurisdiction to preside over felony proceedings. 

A fourth conviction for an Desoto DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Desoto DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordere to only serve 72 hours in jail before being eligible for a work release program. Penalties for a fifth or subsequent

2. Fines - A first time DUI in Desoto carries a fine between $500 and $1000.

The fine for a second DUI conviction in Desoto can range from $1,000 to $1,500.

The fine for a third conviction for DUI in Johnson County ranges from $1,500 to $2,500.

The fine for a fourth or subseqent DUI conviction in Johnson County is at least $2,500.

 3. Suspension of your drivers license - a first time conviction or Intoxilyzer test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items), while refusing to take the Intoxilyzer carries a 1 year suspension. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation.  More details are available below, but the most important thing to remember is this: In most Desoto DUI cases, you only have 14 calendar (unless the 14th day falls on a weekend or legal holiday) days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long.

 4. Probation Costs and Hassles - In cases where probation is granted, you will likely be ordered to meet with a probation officer one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.

 5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Kansas DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars.

 6. Social Effects - A Johnson County DUI can affect your job status and eligibility, can subject you to ridicule from family and friends and the penalties may seriously affect your daily life.

 At the Law Offices of Jeremiah Johnson, LLC, we recognize that everyone is innocent until proven guilty and that being charged with a DUI is not remotely the same as being convicted of a DUI. While many people accept DUI tests as irrefutable evidence, in actuality Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we believe in exploring every angle relating to the FST's and Breathalyzer results when evaluating your case to ensure that your rights are protected.

In most Desoto DUI cases, you only have 14 days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. Suspensions range from as short as 30 days (with a 330 day suspension) to lifetime suspensions with no eligibility for reinstatement. Thus, it is highly suggested that you retain an experienced Johnson County, Kansas DUI attorney immediately to protect your rights and driving privileges.

How Long Will Your License Be Suspended?

The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with a Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Kansas DUI lawyer can challenge the grounds upon which your license is suspended.

If you or your Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request.

In Johnson County, Desoto DUI Administrative Hearings are usually scheduled at least 3 months after the Desoto DUI is charged, although recent experience has suggested that the wait is as long as 4 months. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.  If your license was valid before the charge, it will likely remain valid until the hearing, regardless of its outcome or the outcome of your criminal case.

The Administrative Hearing

The difficult part of the Department of Revenue administrative hearing is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be uspended, you have to the burden of proving that your license should not be taken from you.

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

If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Desoto DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar 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 Desoto, Kansas DUI defense lawyer as soon as possible after your Desoto DUI arrest.

Possible Suspensions from a Desoto DUI include:

INTOXILYZER 8000 TEST FAILURE IN Desoto

1st time Intoxilyzer 5000/8000 test failure in Desoto between .08 and .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.

1st time Intoxilyzer 5000/8000 test failure in Desoto above .150: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.

2nd and 3rd test failures in Desoto between .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.

2nd test failure in Desoto of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.

3rd test failure in Desoto of .150 or higher: Driving privileges are suspended for one year followed by 3 years of ignition interlock.

4th test failure in Desoto of .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.

4th test failure in Desoto of .150 or higher: Driving privileges are suspended for one year followed by 4 years of ignition interlock.

5th test failure in Desoto : Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.

TEST REFUSAL IN Desoto

1st Time Refusal in Desoto: Driving privileges are suspended for one year. The reinstatement fee is $400.00.

2nd Time Refusal in Desoto: Driving privileges are suspended for two years. The reinstatement fee is $600.00.

3rd Time Refusal in Desoto: Driving privileges are suspended for three years. The reinstatement fee is $800.00

4th Time Refusal in Desoto: Driving privileges are suspended for ten years. The reinstatement fee is $1,000.00

5th Time Refusal in Desoto: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.

K.S.A. 8-1567

      8-1567.   Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:

      (1)   The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;

      (2)   the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;

      (3)   under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;

      (4)   under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or

      (5)   under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.

      (b)   No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.

      (c)   If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.

      (d)   Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.

      In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.

      (e)   On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.

      (f) (1)   On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.

      (g) (1)   On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.

      (2)   The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.

      At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.

      (h)   Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.

      (i)   The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.

      (j)   In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.

      (k) (1)   Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

      (A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

      (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (l) (1)   Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.

      (2)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (3)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (m) (1)   Prior to filing a complaint alleging a violation of this section, a prosecutor shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

      (2)   Prior to filing a complaint alleging a violation of this section, a prosecutor shall request and shall receive from the Kansas bureau of investigation central repository all criminal history record information concerning such person.

      (n)   The court shall electronically report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

      (o)   For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:

      (1)   "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;

      (2)   "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;

      (3)   any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;

      (4)   it is irrelevant whether an offense occurred before or after conviction for a previous offense; and

      (5)   a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.

      (p)   Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.

      (q) (1) (A)   Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.

      (B)   On and after July 1, 2007, and retroactive for ordinance violations committed on or after July 1, 2006, an ordinance may grant to a municipal court jurisdiction over a violation of suchordinance which is concurrent with the jurisdiction of the district court over a violation of this section, notwithstanding that the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony.

      (C)   Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.

      (2)   The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.

      (3)   Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:

      (A)   Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and

      (B)   whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.

      (4)   Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.

      (5)   As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.

      (r) (1)   Upon the filing of a complaint, citation or notice to appear alleging a person has violated a city ordinance prohibiting the acts prohibited by this section, and prior to conviction thereof, a city attorney shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.

      (2)   Upon the filing of a complaint, citation or notice to appear alleging a person has violated a city ordinance prohibiting the acts prohibited by this section, and prior to conviction thereof, a city attorney shall request and shall receive from the Kansas bureau of investigation central repository all criminal history record information concerning such person.

      (3)   If the elements of such ordinance violation are the same as the elements of a violation of this section that would constitute, and be punished as, a felony, the city attorney shall refer the violation to the appropriate county or district attorney for prosecution.

      (s)   No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.

      (t)   The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alternative, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.

      (u)   Upon a fourth or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.

      (v)   For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

      (2)   "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.

      (3)   "Drug" includes toxic vapors as such term is defined in K.S.A. 2009 Supp. 21-36a12, and amendments thereto.

      (w)   The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in thestate treasury.

      (x)   Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.

K.S.A. 8-1001

      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 a vehicle 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.

K.S.A. 8-1002

      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).

K.S.A. 8-1014

      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.

K.S.A. 8-1020

      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.

K.S.A. 8-1021

      8-1021.   Impoundment of motor vehicle for 8-1567 violation; failure to pay fees or take repossession; disposition of vehicle. If the owner of a motor vehicle which has been impounded pursuant to K.S.A. 8-1567 or K.S.A. 2009 Supp. 8-1022, and amendments thereto, refuses to pay any towing, impoundment, storage or other fees relating to the impoundment or immobilization of such vehicle or fails to take possession of such vehicle within 30 days following the date of the expiration of the impoundment period, such vehicle shall be deemed abandoned and the vehicle may be disposed of by the person having possession of such vehicle. If the person having possession of such vehicle is a public agency, disposition of such vehicle shall be in compliance with the procedures for notice and public auction provided by paragraph (2) of subsection (a) of K.S.A. 8-1102, and amendments thereto. If the person having possession of such vehicle is not a public agency, disposition of such vehicle shall be in compliance with K.S.A. 8-1103 through 8-1108, and amendments thereto.

 

 

 

 

 

 

 

 

 

Important Points regarding Kansas DUI charges:

No lawyer can guarantee results - the lawyers in our office are no exception.  We will work hard to represent your interests and get you the best results realistically available, but we are forced to work with the facts available, not the facts we wish were available.  You may help yourself by following these guidelines.

1.     If in doubt, ask us.  If you’re not sure if something is important, call or email us. You would be amazed at what types of facts can turn a case in the your favor.  We put our cell numbers on the letterhead because we want to be available, so please feel free to call the office or our cell phones.

2.     If you plea guilty, are found guilty, or enter into diversion, you will need a drug and alcohol evaluation or ADSAP.  A list of providers is provided is included.  The provider will ask you questions regarding your drinking and then come up with a “treatment plan” that is part of any probation or diversion.  You MUST complete the plan or your diversion/probation will be revoked.  I highly recommend getting your ADSAP done within one week of retaining this office as judges look very highly upon people who seem to have been proactive in getting treatment or taking their recommended classes.

3.     Judges are NOT bound by plea agreements.  What that means is that even though we enter into a plea agreement with the prosecutor, the judge can sentence you however she/he sees fit, as long as it is within the statute.  For 1 st time charges that means 6 months in jail, for 2 nd and subsequent charges, that means 12 months in jail, among other requirements.  Judges do not often “bust” plea agreements, but you need to know that it is possible.

4.     Wear a suit if you will be in front of a judge or if you are going to a meeting with a diversion or probation officer.  You would be shocked as to how much a simple suit can help you at trial, when asking a judge to accept a plea, or even just at a hearing on your case.  It shouldn’t matter, but I have had judges tell me point blank that it does.  If you do not have one, get one.  If you can’t afford one, go to Goodwill where you can pick one up for less than $15.   My wife got her first job after college in a suit from goodwill

Whether you’re in front of the judge or just meeting a diversion or probation officer, a suit will make a good impression which can pay huge dividends down the road.  Your dress will imply that you are serious about the proceedings or meeting and that you respect the Court and the justice system.  Others will not be dressed appropriately and will make your suit look even better.

-  Men – Any type of suit will suffice as long as you’ve got a pressed long-sleeve button down shirt and a tie.  I hate ties too, just wear it.  Make sure your shoes are appropriate.  Don’t forget a belt.  Absolutely no hats.

-  Women- Skirt suits or dresses with a suit jacket/blazer are preferred as there are still a few judges around who don’t think women should wear pants.   I am not kidding.  Heels should be reasonable.  Skirt and dress lengths should be reasonable.

5.     Do not miss Court if you have been instructed to go.  If you’re unsure, call me or call the Court.  For felonies, you are REQUIRED to be at every hearing.  For misdemeanors, you are only required to be there when (1) ordered by the judge; (2)when entering into a plea; (3)to sign up for diversion; and (4) for trial and a pre-trial conference.  If you are supposed to be at court and you are not there, the judge will likely forfeit your bond and issue a warrant for your arrest.

6.     Judges can order drug tests at their discretion.  If you use drugs, give them up during the legal process.  If you test positive, the judge will likely revoke your bond and put you in jail. Kansas law provides few legal arguments for me to prevent that.  Do not drink if ordered not to by the Court.

7.     Do NOT get any new charges. If you do, the judge will probably revoke your bond and put you in jail.

For experienced and aggressive legal representation in the defense of a DUI charge in Desoto, contact my offices  to schedule a free initial consultation. My offices are open from 7 am until 6 pm, Monday through Friday and evening and weekend hours are available by appointment. I accept Visa, MasterCard, Discover and American Express.

The Law Offices of Jeremiah Johnson, LLC
104 E. Poplar
Olathe, KS 6606

Phone:(866) 656-1268
Fax: (913) 764-5012

At the Law Offices of Jeremiah Johnson, LLC, in Olathe, we represent individuals throughout Johnson County and northeast Kansas, including Overland Park, Shawnee, Merriam, Prairie Village, Leewood, Mission, Mission Hills, Fairway, Roeland Park, Mission Woods, Westwood, Westwood Hills, Gardner, Edgerton, De Soto and Desoto.

Things to consider when choosing a DeSoto DUI-DWI 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 DeSoto 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

Recent DUI Defense News from our Johnson County law firm:

(These results involve unique clients with unique circumstances and should not be construed as a promise of similar results in your case) 

3/10/11 - Our firm's lawyers learned that one of our DUI clients' proposed 1-year administrative driver's license suspension had been dismissed.  The dismissal was due to we' challenge on the certification portion of the DC-27 form.  This proposed driver's license suspension was the result of an Olathe driving under the influence arrest.

2/14/11 - Today we learned that two misdemeanors charged against our client were dismissed by the prosecution.  After meeting with our client and reviewing the police reports, we quickly realized that the evidence did not support the charge.  We presented our arguments to the prosecutor and he agreed to dismiss both counts.

1/19/11 - Dismissal of felony driving under the influence charge in District Court:  Today our firm's DUI lawyers successfully argued a Motion to Suppress in a felony driving under the influence case.  Our DUI attorneys successfully argued that our client's blood test was taken in violation of KSA 8-1001 because our client was not under arrest when the arresting officer read Kansas' implied consent advisory (called a DC-70).  Since the investigating officer was not lawfully permitted to threaten a license suspension, our client's consent to a blood/urine test could not be consensual.  The State countered by arguing that, even without consent, there was probable cause (and exigent circumstances) to take the blood/urine, so the tests should stand.  We relied on an unpublished opinion, State v. Beford, to show that the evidence should be excluded.  The court agreed and the felony driving under the influence (DUI) charge against our client was dismissed.

12/27/2010 - Our law firm learned that a misdemeanor case in Johnson County District Court was dismissed by the prosecution.  This decision was the result of our requests for discovery, particularly an in-car video, which were not complied with.  Once we had pressed the issue and presented evidence of Constitutional and jurisdictional issues with the case, the prosecution agreed to consider dismissal.  As a result, our client faces no more criminal prosecution and no driver's license suspension.

10/22/10 - We learned that a DUI client facing a one year driver's license suspension had wonher administrative hearing and would not have her driver's license suspended.  Our law office's Johnson County DUI lawyers had successfully argued that the arresting police officer's certification dates were incorrect.

10/15/10 - we learned that an administrative driver's license suspension was dismissed against our client charged with driving under the influence in Olathe, KS.  The DUI attorneys in our office had successfully challenged the officers' statements on the DC-27 form given to our client.

9/17/10 - We learned from the Kansas Department of Revenue ("KDR") that our client would not have her driver's license suspended.  This was a result of us arguing that the arresting Leawood police officer had not properly completed the paperwork (often referred to as a DC-27) necessary to render the license suspension valid.  We also argued that the officer had incorrectly given the Kansas implied consent advisories, listed on the KDR's DC-70 form.

9/3/10 - Municipal court prosecutors dismissed a pending DUI/DWI charge against our client, in exchange for him pleading guilty to a minor traffic violation.  The stop originated from a DUI/DWI checklane/checkpoint/roadblock.  Our DUI/DWI lawyers successfully convinced the prosecutor that the arresting officer had given incorrect instructions for the field side sobriety tests ("FSTs") and that the breath test machine (intoxilyzer) was not properly maintained.  As a result, our client will not be going to jail or serving any sort of probation.  Total fines:  $200.

8/13/10 - Today our law office learned that our driving under the influence attorneys' efforts in defending an Olathe DUI case had led to another administrative hearing win.  Our client was facing a 1-year driver's license suspension for a 1st time DUI charge.  Our DUI lawyers successfully argued that the Olathe Police officer had used an incorrect form to trigger the driver's license DUI based suspension process.

7/9/10 - Our law office won another driver's license suspension case today.  This administrative hearing involved a Mission, Kansas driving under the influence (DUI/DWI) case.  Our attorneys won by arguing that the State had taken too long to hold the hearing, which was 14 months after our client's Mission DUI arrest.  

6/17/10 - Today our law office learned that a potential lifetime driver's license suspension had been dismissed against our client.  The case originated from a March DUI arrest in Johnosn County, KS by the Kansas Highway Patrol.  Our Johnson County DUI attorneys successfully challenged the proposed suspension based upon the lack of proper service, as required by Kansas law.

4/8/10 - We won an administrative hearing today by pointing out a techincal defect with the certification of the Intoxilyzer 8000 instrument.  This hearing was based on an Overland Park DUI.  Our client faced a 1 year suspension.

4/2/10 - Today our law office's DUI attorneys won another three administrative hearings with the Kansas Department of Revenue.  Two of our wins were from Olathe DUI charges, and one from a Shawnee DUI.  Our Johnson County DUI attorneys won primarily by fighting the foundational requirements for the admissibility of the Intoxilizyer 8000 breath test. If we can successfully suppress the results of this test, we will usually win breath test failure administrative license hearings.

3/12/10 - Today our law office won two driver's license administrative hearings resulting from second time driving under the influence (DUI) charges filed in Leawood, KS and Shawnee, KS.  We won one license hearing after successfully arguing that the certification documents (accompanying the DC-27 pursuant to KSA 8-1002) were incorrectly completed and therefore supported dismissal.  We won the other hearing based upon aruging that the presence of a last-minute officer subpoena required the attendence of the assisting officer.

3/5/10 - Today our law office won a DUI driver's license Administrative Hearing with the Kansas Department of Revenue.  Our successful argument was based on a defective DC-27 certification.  This approach saved our client from a 1-year driver's license suspension.  The case stemmed from a DUI stop by the Johnson County Sheriff's Office in DeSoto, KS.  

2/12/10 - Today our Johnson County DUI lawyers won a DUI driver's license Administrative Hearing resulting from an Olathe, KS DUI stop.  Attorney Scott McFall siezed on the arresting officer's fuzzy memory of the stop, arrest, and breath testing and were able to prevent a 2 year license suspension from being imposed on our client.

2/4/10 - Today we argued a Motion to Suppress in Johnson County District Court.  Our Motion alleged that both the stop of our client and his arrest violated the Constitutions of the United States and Kansas.  Our arguments prevailed and the Court ordered that nearly all of the evidence gathered by police be suppressed.  Motions to Suppress are one of the most effective tools we use in fighting DUI charges in Johnson County.

1/11/10 - We represented a client in a DUI jury trial in Johnson County District Court.  The trial ended early with a "mistrial" due to the police officer's repeated mention of inadmissible matters.  As a result, we were able to negotiate with the State for a dismissal of the driving under the influence charge.  This was especially helpful for our client for whom we had recently prevailed at the administrative hearing.

12/18/09 - Today we received notice from the Kansas Department of Revenue that our client's proposed 3 year driver's license suspension would not be enforced.  We successfully pointed out a defect in the "personal service" requirement of the DC-27 form used to initiate driver's license suspension proceedings.

12/11/09 -Today Scott McFall prevailed at a driver's license hearing involving a proposed 1 year driver's license suspension resulting from an Olathe DUI arrest and charge.  The criminal portion of this case also turned out extrememly well. We were able to negotiate a deal with prosecutors under which the DUI charge against our client may ultimately be dismissed.

12/4/09 - We won an administrative hearing on a case with a proposed 1 year driver's license suspension (followed by a 2 year ignition interlock requirement)  Our successful arguments were based on the "resonable grounds" that the Johnson County law enforcement officer relied upon.

11/05/09 - Today we received confirmation from the Kansas Department of Revenue that our client's proposed 1 year driver's license suspension was dismissed.  This win was crucial as our client must drive a vehicle for his employment.
10/20/09 - Today we secured the dismissal of two felony charges filed in Johnson County District Court against our client.  These charges were a result of a driving under the influence stop in Gardner, KS.  We felt that they were added in an attempt to "strongarm" our client into accepting a plea deal on the DUI charge and we refused to cave into the prosecutor's demands.  The dismissal of the charges means that our cleint is no longer facing a lengthy prison sentence.

 

 

 

9/10/09 - Today we helped our client avoid a 3 year driver's license suspension proposed by the   Kansas Department of Revenue.  Our defense focused on the personal service (or lack of in this case) which did not comply with the statute governing DUI driver's license suspensions. 
8/20/09 - Scott McFall won a trial in Olathe Municipal Court.  This case involved an auto accident in Olathe where the City was attempting to also assess over $3000 in restitution as a result of the auto accident invovled in this case.  In convincing the Court that our client was not guilty, we not only kept a conviction from marring their driving record, but we also saved them over $3000!
8/10/09 - Today we received notice from The Kansas Department of Revenue that one of our Johnson County District Court clients, who was facing a 1 year driver's license suspension had prevailed.  We successfully pointed out that the State Trooper who had certified the document used to trigger the license suspension process - called a DC-27 - was incorrectly certified. 

6/24/09 -  Our law office's newest attorney, Scott McFall, negotiated a dismissal of a Shawnee, KS driving under the influence (DUI) charge.  Securing a dismisssal of a Johnson County DUI charge is extremely difficult because the statute specifically states that the DUI charge may not be amended to another charge and may not be dismissed without judicial approval.  Scott McFall was able to persuade the prosecutor that the City's case was insufficient to support a conviction.  Over 6 weeks before, we were able to demonstrate that the DC-27 was "defective on it's face," meaning that the license suspension proposed by the Kansas Department of Revenue was also dismissed.

 6/18/09 - Today we secured an acquittal on a DUI charge in Overland Park Municipal Court.  Our client was charged with driving under the influence and was also facing a 1 year driver's license suspension for refusing the breath test.  The trial stretched over two days after we discovered mid-trial that a video from one of the responding officers had not been produced.  This trial featured a Motion to Suppress over 4 different Constitutional issues.  Our client was an entreprenuer who relied on his license to make a living.  

  5/22/09 - Today we won two administrative hearings, fighiting off proposed suspensions of 1 and 3 years. We successfully raised issues regarding the officer's certifcation, our client's withdrawal of refusal under the terms of Standish v. Department of Revenue, 235 Kan. 900, (1984), the flawed field side sobriety tests given by the Gardner Department of Public Safety officer, and an improper DC-70 advisory notice.

4/14/09 - A felony case against our client was dismissed following a jury trial in Johnson County District Court.  

3/14/09 - Today we succesfully defended our client's driver's license at an Administrative Hearing with the Kansas Department of Revenue.  We strenuoulsy argued that the "tag team" approach to meeting the Kansas Department of Health and Environment's (KDHE) protocol was not sufficient to render a valid breath test.

2/27/09 - Today Scott McFall (he is the newest attorney handling DUIs in our office) convinced the Paola Municipal Court to approve house arrest for our client who was facing 90 days in custody.  This result is especially noteworthy because Paola did not have a house arrest program in place and the statute our client was being sentenced on called for a 90 day mandatory sentence.  Scott had to convince the Court to allow a house arrest program to be set up in order to get this intiated.  As a result, our client will be allowed to serve his 90 days on house arrest instead of wasting time in jail.  This will allow him to avoid losing his job as a person is usually allowed to work while on house arrest.

2/25/09 - Today the Kansas Department of Revenue dismissed our client's proposed 3 year driver's license suspension stemming from a DUI charge in Johnson County District Court.  This law office sucessfully argued that the Kansas Highway Patrolman did not obtain personal service in a timely fashion as indicated on the DC-27.  

2/9/08 - We took part in a jury trial in Johnson County District Court which resulted in a hung jury.  The long term effect of this result was that the defendant will not be retried for DUI. 

11/20/08 - This law office secured a dismissal of a Johnson County District Court DUI case  after we filed a Motion to Dismiss, citing the Kansas Speedy Trial Act and the Due Process Clause in the United State's Constitution.  The Court agreed with our filings and dismissed the case without a hearing.  We had previously prevailed on the driver's license suspension portion of this charge and it leaves are client with a clean driving record and criminal history. 

11/16/08 - Upon reviewing a client's DC-27, we found a "fatal flaw" in the police officer's certification that allowed us to beat the 1 year driver's license suspension proposed by the Kansas Department of Revenue. Our client was facing the possibility of losing his job if his license was suspended.  The DC-27 is the pink sheet that law enforcement gives you when they take your license after a breath test failure or refusal.

9/12/08 - We successfully challenged our client's proposed 1 year driver's license suspension at the Administrative Hearing with the Kansas Department of Revenue. We showed the hearing officer that the arresting officer's observations were not supported by the evidence or even the obserations by the other officer's who had contact with our client.  A single mom, our client desperately needed to keep her license as she had no othe way to take care of her kids.

7/21/08 - Today we successfully defended our client in an administrative hearing resulting from a DUI stop in Johnson County.  The issues presented included medical andsituational factors.

5/12/08 - Arguing a Motion to Suppress in Overland Park Municipal Court based on State v. Schmitter and U.S. v. Gonzalez, we secured a not guilty verdict for our client.  You can view the document by clicking on the following links: Page 1  - Page 2 - Page 3 -Page 4 - Page 5 - Page 6

5/1/08 -This office secured a win on a first time DUI in Johnson County District Court (magistrate division)

4/23/08 - Another Driver's License Administrative Hearing, another dismissal allowing our client - facing a 3 year license suspension - to keep his license.  Today we relied on KSA 8-1002

4/21/08 - Today we successfully argued at sentencing for an advantageous sentence for a felony DUI client who had been charged and pled to a felony DUI and several associated charges.  Originally facing over 5 years in prison, we argued for, and the court sentenced him to 12 months with 6 months of work release.

3/1/08 - Today this office won an Administrative Hearing against eh Kansas Department of Revenue Driver's License Bureau.


1/13/08 - Today this office represented a client who entered into a very advantageous plea in Johnson County District Court.  Our client was charged with 7 crimes and, if convicted on all charges, could have led to 83 months in custody.  The plea deal called for the client to plead guilty to 2 of 7 charges with a 12 month sentence and 6 months of work release.

9/27/07 - At another preliminary hearing in Johnson County District Court, Jeremiah Johnson successfully argued that the State lacked probable cause to proceed on a felony charge.  This eliminated between 37 and 42 months of possible prison time facing his client.

9/16/07 - At a preliminary hearing in Johnson County District Court, Jeremiah Johnson argued against the State's case proceeding as filed,  suceeding in securing a reduction in the charge.  The case remains pending on the lesser charge.


8/30/07 - The Law Offices of Jeremiah Johnson, LLC was able to clear our client of a 2nd time DUI in Johnson County District Court.


6/15/07 - This office secured a dismissal in an administrative hearing for a driver's license suspension stemming from a DUI arrest.   While dismissals due to an absent officer occasionally happen, this was a rare dismissal granted after evidence was presented.


5/24/07 - This office secured an acquittal in a DUI trial in Johnson County District Court in case 02TR259 after moving for a judgement of acquittal following the State's case.  In doing so, the defense successfully showed that one of the required elements to convict was met only by the defendant's statements which did not meet the minimum burden for the State to make a prima facia case.


4/22/07--Once again we successfully utilized the  Kansas Court of Appeals  decision in State v. Ross, on a successful motion to suppress on a DUI case in Johnson County.  The outcome of the motion to suppress led the state to dismiss all charges against our client.


4/9/07— Upon filing a motion to terminate based on State V. Bennett, our client was released from his probation in  Olathe Municipal Court.