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Johnson County DUI Defense

Our law firm's driving under the influence (DUI/DWI) attorneys-lawyers handle misdemeanor and felony drunk driving cases and administrative driver's license suspension hearings in Johnson County, Kansas

The driving under the influence laws in Johnson County, Kansas are some of the toughest in the country, with every conviction calling for a jail sentence, a driver's license suspension, court ordered classes/treatment, probation, and fines of hundreds or thousand of dollars. Additionally, drivers who have two or more prior diversions or convictions for DUI/DWI in Johnson County or any other jurisdiction, at any time in their life, will face felony DUI charges in Johnson County District Court. If you have been arrested for driving under the influence (DUI/DWI) in Johnson County, KS (including drunk driving cases in Olathe, Overland Park, Mission, Leawood, Lenexa, Merriam, Shawnee, Gardner, Desoto, Prairie Village), you should retain an experienced Johnson County DUI/DWI lawyer as soon as possible to insure that your rights are protected.

The DUI lawyer and staff in our defense law firm have handled hundreds of driving under the influence (DUI/DWI) cases in Johnson County and elsewhere in Kansas. We understand that being charged with drunk driving is not the same as being convicted of driving under the influence. Our office's DUI defense attorney understands that police officers regularly jump to conclusions, do not correctly interpret tests, and make mistakes. We work hard to evaluate every aspect of our clients' cases in an effort to keep them out of jail and to prevent their driver's licenses from being suspended.

Our firm's DUI defense attorney will be happy to discuss your options, the laws and regulations surrounding DUI/DWI charges in Kansas, and how the laws apply to your case. Call (913)764-5010 today to speak to a Johnson County DUI attorney about the unique circumstances in your case and arrange a no-cost consultation in our office. You may also use the form on the right side of this page.

Important update regarding Kansas DUI law: January 11, 2010 - Kansas driving under the influence law likely to change dramatically based upon recommendations by the Kansas DUI commission.

The Kansas Legislature recently created a "DUI commission" to recommend an overhaul of Kansas' DUI laws. The recommendations were mostly expected by our law firm's Johnson County DUI lawyers and will be voted upon in the next session before they become law. The recommendations are extremely punitive. The DUI panel's recommendations included:

  1. The crime of "chemical test refusal" refusal would be created as a "strict liability" crime. This law would make it a criminal act to refuse a blood, breath (such as the Intoxilyzer 8000), or urine test. The criminal penalties would be in addition to the administrative penalties where a driver's license can currently be suspended due to a DUI refusal. In addition, a "refusal" would serve as a sentence enhancement on misdemeanor DUI convictions, requiring that the driver serve 90 days before probation was granted. Finally, a "refusal" would result in the lifetime disqualification of a commercial driver's license (CDL), even if the driver was not driving a commercial vehicle at the time they "refused"!
  2. There would be a $50.00 fee to request an administrative hearing for a proposed driver's license suspension on a DUI case. Kansas law does not currently have a fee to request an administrative hearing which is needed to insure that a person's license is not suspended without due process. This provision is horrible no matter how you look at it.
  3. A first lifetime driving under the influence conviction would be a class A misdemeanor (it is currently a class B) and the minimum fine would double to $1000. The minimum sentence would go from 30 days to 90 days in jail. If the person "refused"a breath test, the minimum sentence would be 90 days in jail!
  4. A second lifetime driving under the influence conviction would see its fine moved from the $1000 minimum to a $2500 minimum!
  5. Third and higher lifetime DUI convictions would be a level 7 nonperson felony, subject to the Kansas sentencing grid. This is a huge change because felony DUI convictions are currently "off grid" felonies. The practical effect is that Kansas prisons are likley to be inundated with DUI convictees who are currently only sentenced to County jails.
  6. The use of "saliva PBT's" would be authorized by the legislature. Preliminary breath tests in Kansas are currently only done on breath and are subject to wild inaccuracies.
  7. A breath test refusal would be added to the list of offenses (such as driving while suspended, driving without insurance, DUI, etc.) that count towards the "habitual violator" statute. This is important because that statute mandates a 3 year driver's license suspension for anyone convicted of three or more of those crimes within a 5 year period. That period is then often followed by an SR-22 requirement which adds complexity and cost to driving.
  8. The crime of "ignition interlock circumvention" would be created. This would cover any driver who was convicted of bypassing an ignition interlock.
  9. Amend the time allowed for a valid breath to be THREE hours rather than the current TWO hours. This provision is horrible because it will affect drivers who drink after they were driving.
  10. Add a 24-month post release supervision (by the Kansas Department of Corrections) for drivers convicted of felony driving under the influence.
  11. Authorize the use of a "motorized bicycle" for certain drivers convicted of driving under the influence who have their regular driver's licenses suspended.
  12. Authorize an ignitiion interlock restricted hardship driver's license after 45 days of a 1 year driver's license suspension for a breath, blood, or urine test failure, or blood, breath, or urine refusal. The restriction would allow driving to school, work, court, and treatment. This is by far the best part of the commission's recommendations because driver's license suspensions simply put people out of work and drastically affect their families.

Every Johnson County, KS driving under the influence (DUI/DWI) conviction carries a jail sentence and a driver's license suspension - you should hire an experienced Johnson County DUI/DWI attorney/lawyer for every driving under the influence charge

Johnson County, Kansas courts have some of the toughest drunk driving (DUI-DWI) laws in the United States, with every Johnson County driving under the influence (DUI/DWI) conviction calling for a mandatory jail sentence, a 12-month probation (either standard or intensive supervision), court ordered alcohol classes and treatment, a driver's license suspension, fines, and court costs. Even first time offenders with clean driving records and no criminal history are subject to Kansas' tough DUI statutes.

Even worse, every DUI Kansas DUI/DWI conviction remains on a driver's record for life with subsequent offenses carrying progressively harsher criminal penalties and driver's license suspensions - even Johnson County DUI diversions count as prior convictions! Kansas' strict DUI laws are enhanced by even stricter DUI enforcement policies enacted by law enforcement agencies throughout Johnson County. The result is simple - large numbers of drivers are being charged with driving under the influence (DUI/DWI) in Johnson County District Court & in the municipal courts throughout Johnson County, KS.

A conviction for drunk driving (DUI/DWI) in Johnson County will have numerous negative effects on the accused's life, even if they are ultimately acquitted or the case is dismissed. These negative effects include:

1. Jail time is required for every Johnson County driving under the influence (DUI-DWI) conviction :

The laws governing Johnson County, Kansas driving under the influence convictions call for a jail sentence for every Johnson County DUI-DWI conviction, even for first time offenders with clean criminal and driving records. KSA 8-1567 requires that every similar conviction for DUI in a person's lifetime will count as a prior conviction, and be used to enhance the sentencing for the current DUI-DWI charge.

The maximum jail sentence for a first time driving under the influence (DUI-DWI) conviction in Johnson County, KS is 6 months in jail, the maximum sentence for a second time DUI conviction in Kansas is 1 year in jail, a third time Johnson County DUI-DWI conviction is a felony and punishable by up to 1 year in jail, a fourth or higher lifetime DUI conviciton in Johnson County, Kansas is also a felony, punishable by up to 1 year in jail with 1 year of post-release supervision from the Kansas Department of Corrections. Felony DUI convictions in Johnson County proceed in Johnson County District Court and carry the potential of long jail sentences before probation or work release are granted. The bottom line is that drunk driving convictions in Johnson County always include jail time.

In some instances, our Olathe law office's Johnson County, KS DUI/DWI attorneys may be able to arrange a diversion agreement for your Johnson County driving under the influence case. A DUI diversion, if completed successfully, a diversion will serve to "dismiss" the drunk driving charge (however the administrative license suspension will not be affected), leaving your criminal record clean of a DUI conviction.

In other cases, our DUI/DWI lawyers be able to help our Johnson County DUI clients "avoid" jail time through the use of the "community weekend intervention program," often referred to as the CWIPS class. The CWIPS class satisifies the mandatory jail time requirement called for by Kansas law. The CWIPS class meets in an old hotel on the weekends. CWIPS participants will attend alcohol classes (that they would have to take anyway) and must stay in the facility for the weekend, however they are only housed with other people convicted of DUI, there are no criminals convicted of other crimes present.

2. A driver's license suspension will be proposed in every Johnson County DUI case, without the potential for a hardship license:

A license suspension will be imposed in nearly every Johnson County DUI case, unless you or your DUI attorney win your administrative hearing, even if the driver completes diversion successfully - Every Johnson County DUI case will carry a proposed driver's license suspension, ranging from 30 days to 1 year for first time offenders, a 2 year driver's license suspension for second time offenders, a 3 year driver's license suspension for third time offenders, a 10 year driver's license suspension for fourth time offenders, all the way to a lifetime driving ban for some felony DUI convicitons. These suspensions will be triggered automatically, often before your fiorst court date because Kansas law only gives you 14 calendar days to request an administrative hearing, or the proposed driver's license will be automatically be imposed!

The driver's license suspension is often the most damaging part of a DUI case. The state does not care how you will get to work, how your kids will get to school, or how you'll be able to get to court, they just want to take your license from you. The driving under the influence lawyers in our law office can help you keep your license pending a hearing and can represent you at the administrative hearing in an effort to defeat the driver's license suspension. Our Olathe law firm's Johnson County DUI/DWI attorneys work hard to find technical or factual ways to win the administrative hearings with the Kansas Department of Revenue.

The driver's license suspensions resulting from Johnson County driving under the influence arrests are often followed by ignition interlock requirements. In such cases, the Kansas Department of Revenue will not give you back your driver's license until you show proof that you have an ignition interlock installed on your car. These interlock devices are not only inconvienent and embarassing, they cost hundreds of dollars each year!

Occurrence, as determined by the KDR

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

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

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

First lifetime "occurrence" in Kansas or Johnson County

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

1 year driver's license suspension

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

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

1 year driver's license suspension

1 year driver's license suspension

1 year driver's license suspension

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

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

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

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

Second lifetime "occurrence in Kansas or Johnson County

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

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

2 year driver's license suspension

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

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

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

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

Third lifetime "occurrence" in Kansas or Johnson County

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

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

3 year driver's license suspension

Fourth lifetime "occurrence" in Kansas or Johnson County

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

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

10 year driver's license suspension

Fifth lifetime "occurrence" in Kansas in Johnson County

Permanent revocation

Permanent revocation

Permanent revocation

3. Court ordered classes, treatment, and probation are imposed in each Johnson County DUI conviction or diversion agreement:

Almost every Kansas DUI conviction will carry a requirement of probation, court ordered alcohol classes, and possibly treatment. These requirements are not only incredibly time consuming, but can also cost hundreds or even thousand of dollars to attend. The staff and attorneys in our law office can help guide you to reputable and honest treatment providers if you enter into a diversion agreement or are convicted of a Johnson County drunk driving charge.

Felony DUI/DWI convictions in Johnson County usually involve serious out-patient or in-patient treatment which will last months, involve thousands of dollars in costs, and entail hundreds of hours of your time.

4. Court fines/fees/costs are required in every Johnson County DUI diversion or conviction:

KSA 8-1567 calls for minimum fines on all DUI convictions whether misdemeanors or felonies. A first time DUI conviction in Johnson County District Court, Olathe Municipal Court, Overland Park Municipal Court, Mission Municipal Court, or one of the other municipal courts in Johnson County, KS will usually entail ~$1200-$1500 in court fines, fees, and costs. These numbers go up dramatically for subsequent convictions. The minimum fine for a 4th or higher lifetime conviction is $2500 in total fines, fees, and costs on a 4th or higher lifetime DUI conviction in Kansas will often exceed $5000!

Additionally, felony DUI charges in Johnson County District Court will almost always include very high bond amounts of $2500, $5000, or more, with bond conditions such as bond supervision or house arrest being imposed. These requirements will cost hundreds of dollars per month to comply with and can be extremely disruptive. A Johnson County driving under the influence charge is a felony if the driver has two or more prior convictions or diversions for DUI/DWI.

5. Other negative effects following Johnson County DUI charges and convictions:

There are endless other negative effects stemming from a Johnson County, Kansas drunk driving (DUI-DWI) conviction. A DUI-DWI conviction in Johnson County will almost always cause a driver's insurance rates to increase significantly - it is not uncommon for insurance rates to rise 300% following a DUI conviction.

A Kansas DUI conviction will also carry a negative stigma with friends, family, and co-workers, as they generalize your case with that of a more serious drunk driving cases, regardless of the circumstances surrounding your case. A DUI conviction may cause prevent doctors, nburses, lawyers, and other professionals

The bottom line is clear: If you have been charged with DUI/DWI in Johnson County, KS, your liberty, property, money, and driver's license are in serious jeopardy and you owe it to yourself to have an expereienced and aggressive Johnson County DUI attorney on your side.

Johnson County, KS Sheriff's deputies the Kansas Highway Patrol have recently stepped up driving under the influence (DUI/DWI) enforcement throughout the Johnson County.

Johnson County's tough DUI/DWI laws are coupled with extremely strict DUI enforcement policies by the Johnson County Sheriff, the Kansas Highway Patrol and the police departments in Olathe, Overland Park, Mission, Merriam, Shawnee, Gardner, Lenexa, Leawood, and elsewhere in Johnson County. Law enforcement officers have been instructed to focus their nighttime patrol efforts on DUI enforcement and will often look for techincal violations such as burnt out tail lamps or "weaving within a lane" as a basis to make a traffic stop which can then be turned into a DUI investigation.

The conclusion is simple - if you are charged with drunk driving (DUI/DWI) in Johnson County, your liberty, driver's license, money, and reputation are at stake. The prosecution has the full resources of the government at its disposal, you owe it to yourself to have a tough, aggressive, knowledgable, and personable Johnson County DUI attorney on your side to look after your rights. Call us at (913)764-5010 to learn how our Johnson County law office can help you in your DUI/DWI case.

The staff and attorneys in our Johnson County law office focus our criminal defense efforts on DUI/DWI cases in Johnson County in an effort to know the laws, courts, and procedured as well as anyone. DUI cases in Kansas are unique in that they are almost always a status crime- the driver has not yet caused any harm. We are not the type of office that will handle any criminal case that comes in the door - we believe that by concentrating our efforts on Johnson County DUI cases, we can provide our clients with better representation than if our criminal defense attention was scattered across a wide variety of crimes.

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

Our Johnson County DUI-DWI defense law office handles all driving under the influence (DUI/DWI) misdemeanor and felony cases in Johnson County

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

At the Law Offices of Jeremiah Johnson, LLC, we and staff also recognize that everyone charged with driving under the influence in Johnson County is innocent until proven guilty and that being charged with driving under the influence (DUI/DWI) in Johnson County is not remotely the same as being convicted of the DUI charge. Drunk driving charges in Johnson County are unique among criminal cases becuase Johnson County law enforcement officers tend to focus on their DUI investiagation from the beginning of a stop, often ignoring signs of sobriety or incorrectly interpreting other actions.

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

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

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

Learn more about how a typical Johnson County driving under the influence (DUI-DWI) case proceeds in Court and with the Kansas Department of Revenue at an administrative hearing:

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

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

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

Part 1: The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureau due to a breath test failure or breath test refusal on the Intoxilyzer 8000:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE PENALTIES FOR A FIRST JOHNSON COUNTY DUI CONVICTION:

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

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

Johnson County DUI diversions are available for some first time (and occasionally other) offenders:

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

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

THE PENALTIES FOR A SECOND JOHNSON COUNTY DUI CONVICTION:

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

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

THE PENALTIES FOR A THIRD JOHNSON COUNTY DUI CONVICTION:

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

THE PENALTIES FOR A FOURTH JOHNSON COUNTY DUI CONVICTION:

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

THE PENALTIES FOR A FIFTH OR HIGHER JOHNSON COUNTY DUI CONVICTION:

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

JOHNSON COUNTY DUI DIVERSIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Driver's license suspensions:

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

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

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

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

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

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

Jail time -

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

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

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

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

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

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

Fines -

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

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

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

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

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

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

Employment Effects -

A DUI can affect your employment in numerous ways.

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

Higher car insurance rates -

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

Numerous other effects -

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

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

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

1. Horizontal Gaze Nystagmus Test (HGN Test):

What is Nystagmus and why is it tested?

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

What are the Causes of Exaggerated Nystagmus?

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

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

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

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

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

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

  • "I am going to check your eyes."

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

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

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

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

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

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

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

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

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

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

Most Importantly, Scoring of the Horizontal Gaze Nystagmus Test:

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

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

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

2. WALK-AND-TURN TEST

a. Procedures for the Walk-and-Turn Test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. ONE-LEGGED STAND TEST

a. Procedures for the One-Legged Stand Test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

c. Test conditions for the One-Legged Stand Test

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

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

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

D. SCIENTIFIC CRITICISMS OF THE STANDARDIZED FIELD SOBRIETY TESTS

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

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

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

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

Other criticisms noted regarding the NHTSA field studies include:

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

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

3) The studies are insufficiently documented for scientific papers;

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

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

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

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

E. NON-VALIDATED SOBRIETY "TESTS"

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

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

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

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

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

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

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

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

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

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

Important statutes relevant to your Johnson County DUI case:

K.S.A. 8-1567

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD

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 andsentenced 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 such ordinance 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 the state 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

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

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

(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, or was under the age of 21 years while having alcohol or other drugs in such person's system; and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a, and amendments thereto, or involving driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, in violation of a state statute or a city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2). The test or tests under paragraph (2) shall not be required if a law enforcement officer has reasonable grounds to believe the actions of the operator did not contribute to the accident or collision. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(9) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of 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

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

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

(1) With regard to a test refusal, that: (A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.

(2) With regard to a test failure, that: (A) There existed reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, or is under 21 years of age while having alcohol or other drugs in such person's system; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the result of the test showed that the person had an alcohol concentration of .08 or greater in such person's blood or breath.

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

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

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

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

(e) If a person refuses a test or if a person is still in custody when it is determined that the person has faileda 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. 8-1004

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1004. Same; additional test by own physician; effect of denial. Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person's own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.

8-1005

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1005. Evidence; test results admissible in prosecutions; weight to be given evidence. Except as provided by K.S.A. 8-1012 and amendments thereto, in any criminal prosecution for violation of the laws of this state relating to operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or the commission of vehicular homicide or manslaughter while under the influence of alcohol or drugs, or both, or in any prosecution for a violation of a city ordinance relating to the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, evidence of the concentration of alcohol or drugs in the defendant's blood, urine, breath or other bodily substance may be admitted and shall give rise to the following:

(a) If the alcohol concentration is less than .08, that fact may be considered with other competent evidence to determine if the defendant was under the influence of alcohol, or both alcohol and drugs.

(b) If the alcohol concentration is .08 or more, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely.

(c) If there was present in the defendant's bodily substance any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapable of safely driving a vehicle, that fact may be considered to determine if the defendant was under the influence of drugs, or both alcohol and drugs, to a degree that renders the defendant incapable of driving safely.

K.S.A. 8-1006

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1006. Same; submission of other evidence; preservation of samples not required. (a) The provisions of K.S.A. 8-1005, and amendments thereto, shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or drugs, or both.

(b) Nothing in this act shall require any samples of blood, breath or urine to be preserved for or furnished to the person for independent testing.

K.S.A. 8-1007

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1007. Same; act supplemental; invalidity of part. This act shall be construed as supplemental to existing legislation; and if any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional, it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section.

K.S.A. 8-1008

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1008. Alcohol and drug safety action program; evaluation and supervision of persons convicted of violation of 8-1567 or comparable city ordinance; certification of programs; reports of chief judge; fees, disposition. (a) Community-based alcohol and drug safety action programs certified in accordance with subsection (b) shall provide:

(1) Presentence alcohol and drug evaluations of any person who is convicted of a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute;

(2) supervision and monitoring of all persons who are convicted of a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute, and whose sentences or terms of probation require completion of an alcohol and drug safety action program, as provided in this section, or an alcohol and drug abuse treatment program, as provided in this section;

(3) alcohol and drug evaluations of persons whom the prosecutor considers for eligibility or finds eligible to enter a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute;

(4) supervision and monitoring of persons required, under a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute, to complete an alcohol and drug safety action program, as provided in this section, or an alcohol and drug abuse treatment program, as provided in this section; or

(5) any combination of (1), (2), (3) and (4).

(b) The presentence alcohol and drug evaluation shall be conducted by a community-based alcohol and drug safety action program certified in accordance with the provisions of this subsection to provide evaluation and supervision services as described in subsections (c) and (d). A community-based alcohol and drug safety action program shall be certified either by the chief judge of the judicial district to be served by the program or by the secretary of social and rehabilitation services for judicial districts in which the chief judge declines to certify a program. In addition to any qualifications established by the secretary, the chief judge may establish qualifications for the certification of programs, which qualifications may include requirements for training, education and certification of personnel; supervision and monitoring of clients; fee reimbursement procedures; handling of conflicts of interest; delivery of services to clients unable to pay; and other matters relating to quality and delivery of services by the program. In establishing the qualifications for programs, the chief judge or the secretary shall give preference to those programs which have had practical experience prior to July 1, 1982, in diagnosis and referral in alcohol and drug abuse. Certification of a program by the chief judge shall be done with consultation and approval of a majority of the judges of the district court of the district and municipal judges of cities lying in whole or in part within the district. If within 60 days after the effective date of this act the chief judge declines to certify any program for the judicial district, the judge shall notify the secretary of social and rehabilitation services, and the secretary of social and rehabilitation services shall certify a community-based alcohol and drug safety action program for that judicial district. The certification shall be for a four-year period. Recertification of a program or certification of a different program shall be by the chief judge, with consultation and approval of a majority of the judges of the district court of the district and municipal judges of cities lying in whole or in part within the district. If upon expiration of certification of a program there will be no certified program for the district and the chief judge declines to recertify or certify any program in the district, the judge shall notify the secretary of social and rehabilitation services, at least six months prior to the expiration of certification, that the judge declines to recertify or certify a program under this subsection. Upon receipt of the notice and prior to the expiration of certification, the secretary shall recertify or certify a community-based alcohol and drug safety action program for the judicial district for the next four-year period. To be eligible for certification under this subsection, the chief judge or the secretary of social and rehabilitation services shall determine that a community-based alcohol and drug safety action program meets the qualifications established by the judge or secretary and is capable of providing, within the judicial district: (1) The evaluations, supervision and monitoring required under subsection (a); (2) the alcohol and drug evaluation report required under subsection (c) or (d); (3) the follow-up duties specified under subsection (c) or (d) for persons who prepare the alcohol and drug evaluation report; and (4) any other functions and duties specified by law. Community-based alcohol and drug safety action programs performing services in any judicial district under this section prior to the effective date of this act may continue to perform those services until a community-based alcohol and drug safety action program is certified for that judicial district.

(c) A presentence alcohol and drug evaluation shall be conducted on any person who is convicted of a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute. The presentence alcohol and drug evaluation report shall be made available to and shall be considered by the court prior to sentencing. The presentence alcohol and drug evaluation report shall contain a history of the defendant's prior traffic record, characteristics and alcohol or drug problems, or both, and a recommendation concerning the amenability of the defendant to education and rehabilitation. The presentence alcohol and drug evaluation report shall include a recommendation concerning the alcohol and drug driving safety education and treatment for the defendant. The presentence alcohol and drug evaluation report shall be prepared by a program which has demonstrated practical experience in the diagnosis of alcohol and drug abuse. The duties of persons who prepare the presentence alcohol and drug evaluation report may also include appearing at sentencing and probation hearings in accordance with the orders of the court, monitoring defendants in the treatment programs, notifying the probation department and the court of any defendant failing to meet the conditions of probation or referrals to treatment, appearing at revocation hearings as may be required and providing assistance and data reporting and program evaluation. The cost of any alcohol and drug education, rehabilitation and treatment programs for any person shall be paid by such person, and such costs shall include, but not be limited to, the assessments required by subsection (e). If financial obligations are not met or cannot be met, the sentencing court shall be notified for the purpose of collection or review and further action on the defendant's sentence.

(d) An alcohol and drug evaluation shall be conducted on any person whom the prosecutor considers for eligibility or finds eligible to enter a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute. The alcohol and drug evaluation report shall be made available to the prosecuting attorney and shall be considered by the prosecuting attorney. The alcohol and drug evaluation report shall contain a history of the person's prior traffic record, characteristics and alcohol or drug problems, or both, and a recommendation concerning the amenability of the person to education and rehabilitation. The alcohol and drug evaluation report shall include a recommendation concerning the alcohol and drug driving safety education and treatment for the person. The alcohol and drug evaluation report shall be prepared by a program which has demonstrated practical experience in the diagnosis of alcohol and drug abuse. The duties of persons who prepare the alcohol and drug evaluation report may also include monitoring persons in the treatment programs, notifying the prosecutor and the court of any person failing to meet the conditions of diversion or referrals to treatment, and providing assistance and data reporting and program evaluation. The cost of any alcohol and drug education, rehabilitation and treatment programs for any person shall be paid by such person, and such costs shall include, but not be limited to, the assessments required by subsection (e).

(e) In addition to any fines, fees, penalties or costs levied against a person who is convicted of a violation of K.S.A. 8-1567, and amendments thereto, or the ordinance of a city in this state which prohibits the acts prohibited by that statute, or who enters a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of that statute or such an ordinance, $150 shall be assessed against the person by the sentencing court or under the diversion agreement. The $150 assessment may be waived by the court, in whole or in part, or, in the case of diversion of criminal proceedings, by the prosecuting attorney, if the court or prosecuting attorney finds that the defendant is an indigent person. Except as otherwise provided in this subsection, the clerk of the court shall deposit all assessments received under this section in the alcohol and drug safety action fund of the court, which fund shall be subject to the administration of the judge having administrative authority over that court. If the secretary of social and rehabilitation services certifies the community-based alcohol and drug safety action program for the judicial district in which the court is located, the clerk of the court shall remit, during the four-year period for which the program is certified, 15% of all assessments received under this section to the secretary of social and rehabilitation services. Moneys credited to the alcohol and drug safety action fund shall be expended by the court, pursuant to vouchers signed by the judge having administrative authority over that court, only for costs of the services specified by subsection (a) or otherwise required or authorized by law and provided by community-based alcohol and drug safety action programs, except that not more than 10% of the money credited to the fund may be expended to cover the expenses of the court involved in administering the provisions of this section. In the provision of these services the court shall contract as may be necessary to carry out the provisions of this section. The district or municipal judge having administrative authority over that court shall compile a report and send such report to the office of the state judicial administrator on or before January 20 of each year, beginning January 20, 1991. Such report shall include, but not be limited to:

(1) The balance of the alcohol and drug safety action fund of the court on December 31 of each year;

(2) the assessments deposited into the fund during the 12-month period ending the preceding December 31; and

(3) the dollar amounts expended from the fund during the 12-month period ending the preceding December 31.

The office of the state judicial administrator shall compile such reports into a statewide report and submit such statewide report to the legislature on or before March 1 of each year.

(f) The secretary of social and rehabilitation services shall remit all moneys received by the secretary under this section to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of each such remittance, the state treasurer shall deposit the entire amount in the state treasury to the credit of the certification of community-based alcohol and drug safety action programs fee fund, which is hereby created. All expenditures from such fund shall be made in accordance with appropriation acts upon warrants issued pursuant to vouchers approved by the secretary of social and rehabilitation services or a person designated by the secretary.

K.S.A. 8-1009

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1009. Determination by prosecuting attorney of whether diversion agreement to be allowed. (a) Upon the filing of a first complaint, indictment or information alleging a person has violated K.S.A. 8-1567, and amendments thereto, when the acts prohibited by K.S.A. 8-1567, and amendments thereto,[*] occur concurrently with any such alleged violation, and prior to conviction thereof, the district attorney or county attorney shall determine whether the defendant shall be allowed to enter into a diversion agreement in accordance with this act.

(b) Upon the filing of a first complaint, citation or notice to appear alleging a person has violated a city ordinance which prohibits the acts prohibited by K.S.A. 8-1567, and amendments thereto, and prior to conviction thereof, the city attorney shall determine whether the defendant shall be allowed to enter into a diversion agreement in accordance with this act.

K.S.A. 8-1010

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1010. Severability of Laws of 1982, ch. 144. If any clause, paragraph, subsection or section of this act shall be held invalid or unconstitutional it shall be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional clause, paragraph, subsection or section.

K.S.A. 8-1011

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1011. Immunity from liability for damage to vehicle operated by or in control of person arrested or in custody. A law enforcement officer, and the state or any political subdivision of the state that employs a law enforcement officer, arresting or taking custody of a person for any offense involving the operation of or attempt to operate a vehicle while under the influence of alcohol or drugs, or both, shall have immunity from any civil or criminal liability for the care and custody of the vehicle that was being operated by or was in the physical control of the person arrested or in custody if the law enforcement officer acts in good faith and exercises due care.

K.S.A. 8-1012

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1012. Preliminary screening test of breath for alcohol concentration; request by officer, reasonable suspicion; notice required; refusal to take test is traffic infraction; use of results of test; additional tests. (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent to submit to a preliminary screening test of the person's breath subject to the provisions set out in subsection (b).

(b) A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person's breath to determine the alcohol concentration of the person's breath if the officer has reasonable suspicion to believe the person has been operating or attempting to operate a vehicle while under the influence of alcohol or drugs or both alcohol and drugs.

(c) At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test.

(d) Refusal to take and complete the test as requested is a traffic infraction. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action concerning the operation of or attempted operation of a vehicle except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001 and amendments thereto.

K.S.A. 8-1013

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1013. Definitions. As used in K.S.A. 8-1001 through 8-1010, 8-1011, 8-1012, 8-1014, 8-1015, 8-1016, 8-1017 and 8-1018, and amendments thereto, and this section:

(a) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.

(b) (1) "Alcohol or drug-related conviction" means any of the following: (A) Conviction of vehicular battery or aggravated vehicular homicide, if the crime is committed while committing a violation of K.S.A. 8-1567 and amendments thereto or the ordinance of a city or resolution of a county in this state which prohibits any acts prohibited by that statute, or conviction of a violation of K.S.A. 8-1567 and amendments thereto; (B) conviction of a violation of a law of another state which would constitute a crime described in subsection (b)(1)(A) if committed in this state; (C) conviction of a violation of an ordinance of a city in this state or a resolution of a county in this state which would constitute a crime described in subsection (b)(1)(A), whether or not such conviction is in a court of record; or (D) conviction of an act which was committed on a military reservation and which would constitute a violation of K.S.A. 8-1567, and amendments thereto, or would constitute a crime described in subsection (b)(1)(A) if committed off a military reservation in this state.

(2) For the purpose of determining whether an occurrence is a first, second or subsequent occurrence: (A) "Alcohol or drug-related conviction" also includes entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging commission of a crime described in subsection (b)(1), including a diversion agreement entered into prior to the effective date of this act; and (B) it is irrelevant whether an offense occurred before or after conviction or diversion for a previous offense.

(c) "Division" means the division of vehicles of the department of revenue.

(d) "Ignition interlock device" means a device which uses a breath analysis mechanism to prevent a person from operating a motor vehicle if such person has consumed an alcoholic beverage.

(e) "Occurrence" means a test refusal, test failure or alcohol or drug-related conviction, or any combination thereof arising from one arrest, including an arrest which occurred prior to the effective day of this act.

(f) "Other competent evidence" includes: (1) Alcohol concentration tests obtained from samples taken two hours or more after the operation or attempted operation of a vehicle; and (2) readings obtained from a partial alcohol concentration test on a breath testing machine.

(g) "Samples" includes breath supplied directly for testing, which breath is not preserved.

(h) "Test failure" or "fails a test" refers to a person's having results of a test administered pursuant to this act, other than a preliminary screening test, which show an alcohol concentration of .08 or greater in the person's blood or breath, and includes failure of any such test on a military reservation.

(i) "Test refusal" or "refuses a test" refers to a person's failure to submit to or complete any test, other than a preliminary screening test, in accordance with this act, and includes refusal of any such test on a military reservation.

(j) "Law enforcement officer" has the meaning provided by K.S.A. 21-3110, and amendments thereto, and includes any person authorized by law to make an arrest on a military reservation for an act which would constitute a violation of K.S.A. 8-1567, and amendments thereto, if committed off a military reservation in this state.

K.S.A. 8-1014

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

K.S.A. 8-1015

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

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

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

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

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

K.S.A. 8-1016

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1016. Same; ignition interlock devices; approval by division; immunity from civil and criminal liability; rules and regulations. (a) The secretary of revenue may adopt rules and regulations for:

(1) The approval by the division of models and classes of ignition interlock devices suitable for use by persons whose driving privileges have been restricted to driving a vehicle equipped with such a device;

(2) the calibration and maintenance of such devices, which shall be the responsibility of the manufacturer; and

(3) ensuring that each manufacturer approved provides a reasonable statewide service network where such devices may be obtained, repaired, replaced or serviced and such service network can be accessed 24 hours per day through a toll-free phone service.

In adopting rules and regulations for approval of ignition interlock devices under this section, the secretary of revenue shall require that the manufacturer or the manufacturer's representatives calibrate and maintain the devices at intervals not to exceed 60 days. Calibration and maintenance shall include but not be limited to physical inspection of the device, the vehicle and wiring of the device to the vehicle for signs of tampering, calibration of the device and downloading of all data contained within the device's memory and reporting of any violation or noncompliance to the division.

(4) The division shall adopt by rules and regulations participant requirements for proper use and maintenance of a certified ignition interlock device during any time period the person's license is restricted by the division to only operating a motor vehicle with an ignition interlock device installed and by rules and regulations the reporting requirements of the approved manufacturer to the division relating to the person's proper use and maintenance of a certified ignition interlock device.

(5) The division shall require that each manufacturer provide a credit of at least 2% of the gross program revenues in the state as a credit for those persons who have otherwise qualified to obtain an ignition interlock restricted license under this act who are indigent as evidenced by qualification and eligibility for the federal food stamp program.

(b) If the division approves an ignition interlock device in accordance with rules and regulations adopted under this section, the division shall give written notice of the approval to the manufacturer of the device. Such notice shall be admissible in any civil or criminal proceeding in this state.

(c) The manufacturer of an ignition interlock device shall reimburse the division for any cost incurred in approving or disapproving such device under this section.

(d) Neither the state nor any agency, officer or employee thereof shall be liable in any civil or criminal proceeding arising out of the use of an ignition interlock device approved under this section.

K.S.A. 8-1017

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1017. Same; circumvention of ignition interlock device; penalty. (a) No person shall:

(1) Tamper with an ignition interlock device for the purpose of circumventing it or rendering it inaccurate or inoperative;

(2) request or solicit another to blow into an ignition interlock device, or start a motor vehicle equipped with such device, for the purpose of providing an operable motor vehicle to a person whose driving privileges have been restricted to driving a motor vehicle equipped with such device;

(3) blow into or start a motor vehicle equipped with an ignition interlock device for the purpose of providing an operable motor vehicle to a person whose driving privileges have been restricted to driving a motor vehicle equipped with such device; or

(4) operate a vehicle not equipped with an ignition interlock device during the restricted period.

(b) Violation of this section is a class A, nonperson misdemeanor.

(c) In addition to any other penalties provided by law, upon receipt of a conviction for a violation of this section, the division shall suspend the person's driving privileges for a period of two years.

K.S.A. 8-1020

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1020. Administrative hearing; requirements; procedure. (a) Any licensee served with an officer's certification and notice of suspension pursuant to K.S.A. 8-1002, and amendments thereto, may request an administrative hearing. Such request may be made either by:

(1) Mailing a written request which is postmarked 10 days after service of notice; or

(2) transmitting a written request by electronic facsimile which is received by the division within 10 days after service of notice.

(b) If the licensee makes a timely request for an administrative hearing, any temporary license issued pursuant to K.S.A. 8-1002, and amendments thereto, shall remain in effect until the 30th day after the effective date of the decision made by the division.

(c) If the licensee fails to make a timely request for an administrative hearing, the licensee's driving privileges shall be suspended or suspended and then restricted in accordance with the notice of suspension served pursuant to K.S.A. 8-1002, and amendments thereto.

(d) Upon receipt of a timely request for a hearing, the division shall forthwith set the matter for hearing before a representative of the director and provide notice of the extension of temporary driving privileges. The hearing shall be held by telephone conference call unless the hearing request includes a request that the hearing be held in person before a representative of the director. The officer's certification and notice of suspension shall inform the licensee of the availability of a hearing before a representative of the director. Except for a hearing conducted by telephone conference call, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto.

(e) Except as provided in subsection (f), prehearing discovery shall be limited to the following documents, which shall be provided to the licensee or the licensee's attorney no later than five days prior to the date of hearing:

(1) The officer's certification and notice of suspension;

(2) in the case of a breath or blood test failure, copies of documents indicating the result of any evidentiary breath or blood test administered at the request of a law enforcement officer;

(3) in the case of a breath test failure, a copy of the affidavit showing certification of the officer and the instrument; and

(4) in the case of a breath test failure, a copy of the Kansas department of health and environment testing protocol checklist.

(f) At or prior to the time the notice of hearing is sent, the division shall issue an order allowing the licensee or the licensee's attorney to review any video or audio tape record made of the events upon which the administrative action is based. Such review shall take place at a reasonable time designated by the law enforcement agency andshall 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 breathtesting 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

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

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.

K.S.A. 8-1022

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1022. Permitting driving in violation of 8-1014; penalties. (a) It shall be unlawful for the owner of a motor vehicle to allow a person to drive such vehicle when such owner knows or reasonably should have known such person was driving in violation of K.S.A. 8-1014, and amendments thereto.

(b) Violation of this section is an unclassified misdemeanor punishable by a fine of not less than $500 nor more than $1,000. In addition to the fine imposed upon a person convicted 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. Prior to ordering the impoundment or immobilization of any such motor vehicle, the court shall consider the factors established in subsection (k)(3) of K.S.A. 8-1567, and amendments thereto. Any personal property in a vehicle impounded or immobilized pursuant to this section may be retrieved prior to or during the period of such impoundment or immobilization.

K.S.A. 8-1023

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1023. Testing not considered medical care; information to be provided law enforcement officer; costs, assessment; privileges not applicable. (a) The testing and method of testing consented to under K.S.A. 8-1001, and amendments thereto, shall not be considered to have been conducted for any medical care or treatment purpose. The results of such test, the person's name whose bodily substance is drawn or tested, the location of the test or procedure, the names of all health care providers and personnel who participated in the procedure or test, and the date and time of the test or procedure are required by law to be provided to the requesting law enforcement officer or the law enforcement officer's designee after the requesting law enforcement officer has complied with K.S.A. 8-1001, and amendments thereto.

(b) All costs of conducting any procedure or test requested by a law enforcement agency and authorized by K.S.A. 8-1001, and amendments thereto, including the costs of the evidence collection kits shall be charged to and paid by the county where the alleged offense was committed. Such county may be reimbursed such costs upon the costs being paid by the defendant as court costs assessed pursuant to K.S.A. 28-172a, and amendments thereto.

(c) The cost assessed under K.S.A. 8-1001, and amendments thereto, shall be the then current medicaid rate for any such procedure or test, or both.

(d) Notwithstanding any other law to the contrary, the collection and delivery of the sample and required information to the law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto, shall not be subject to the physician-patient privilege or any other law that prohibits the transfer, release or disclosure of the sample or of the required information.

K.S.A. 8-1024

Chapter 8.--AUTOMOBILES AND OTHER VEHICLES

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

8-1024. Immunity of persons and entities involved in testing from liability. No medical care facility, clinical laboratory, medical clinic, other medical institution, person licensed to practice medicine or surgery, person acting under the direction of any such licensed person, licensed physician assistant, registered nurse, licensed practical nurse, medical technician, emergency medical technician, phlebotomist, health care provider or person who participates in good faith in the obtaining, withdrawal, collection or testing of blood, breath, urine or other bodily substance at the direction of a law enforcement officer pursuant to K.S.A. 8-1001, and amendments thereto, shall incur any civil, administrative or criminal liability as a result of such participation, regardless of whether or not the patient resisted or objected to the administration of the procedure or test.

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

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

KSA 8-1001 Tests for alcohol or drugs; requested by officer, grounds consent implied; administration of tests, when; procedures; immunity from liability; warning statement; search warrant, admissibility of test; availability of test result; remedial
nature of law. KSA 8-1001 is Kansas' "Implied Consent" statute. It creates the "exception" to the search warrant requirement for seizure of driver's blood, breath or urine and essentially states that by driving in Kansas, you are surrending your Constitutional Rights.
KSA 8-1002 Test refusal or failure; suspension of license; notice; procedure.
KSA 8-1002 sets forth the procedures which must be followed if someone either fails or refuses a chemical test.
KSA 8-1004 Same; additional test by own physician; effect of denial.
KSA 8-1004 creates the right to have independent testing done as soon as the person arrested has completed tests requested by law enforcement. Has teeth, because failure of law enforcement to honor request for independent testing will result in any test performed by law enforcement being inadmissible at the time of trial. This statute can be crucial in defending a Johnson County DUI case or proposed driver's license suspension becuase if it can be proved that a driver asked for an independent test, but was denied the opportunity to take one, the remedy is suppression of the breath tests results. Suppression will dramatically improve a driver's chances of acquittal and will almost always beat a proposed driver's license suspension.
KSA 8-1005 Evidence; test results admissible in prosecutions; weight to be given evidence. Less than .08 - "may be considered" More than .08 - "prima facie evidence that the defendant was under the influence" ". . . any narcotic, hypnotic, somnifacient, stimulating or other drug which has the capacity to render the defendant incapable of safely driving a vehicle" may be considered.
See State v. Armstrong, 236 Kan 290, 689 P.2d 897 (1984). In Armstrong the Kansas Supreme Court ruled the results of a blood alcohol test taken outside the two hour window provided by statute were admissible. The length of time goes to the weight of the evidence rather than admissibility. Armstrong was partially superceded by statute. To find a per se violation the test must be taken within the two hour period. However, to find a violation under 8- 1567(a)(3) the blood alcohol test is admissible when taken outside the two hour period. State v. Pendleton, 18 Kan.App.2d 179, 849 P.2d 143 (1993). It was
recommended by the court in Armstrong that the admission of the test be accompanied by expert testimony to estimate what the defendant's blood alcohol
level was at the time the violation was allegedly committed. This is merely a recommendation, not a requirement. So a proper foundation cannot be laid for a per se violation of the D.U.I. law if the test is taken outside the two hour period, which is in contravention of the procedures
approved by the KDHE and the Kansas Legislature.
KSA 8-1012 Preliminary Screening test of breath for alcohol concentration; request by officer,
grounds; notice required; refusal to take test is traffic infraction; use of results of test;
additional tests.
Interesting statute, provides that arresting officer "shall" give three oral notices to a
person before requesting that they take a preliminary screening test, but then states
that failure to do so is not to be "an issue or defense in any action."
Statute also limits the admissibility of the test to those situations where the validity
of an arrest, or request to submit to further testing is made.
G. 8-1013 Definitions. As used in 8-1001 through 8-1010, 8-1012, 8-1014, 8-1015, 8-1016, 8-
1017 and 8-1018, and amendments thereto.
(a) "Alcohol concentration" definition makes the 2100 to 1, blood to breath ratio is
statutory in Kansas. Query, can the legislature legislate that a non-fact is true fact,
even where current medical proof is to the contrary.

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

Johnson County, KS driving under the influence (DUI/DWI) information

The most important information to remember in almost every Johnson County DUI/DWI case, is that you only have 14 calendar days from the date of your arrest to request an administrative hearing, or your driver's license will be automatically suspended between 30 days and life, depending on your driving history.

The bottom line is clear: If you have been charged with drunk driving in Johnson County, it is extremely important that you consult a Johnson County DUI/DWI lawyer-attorney as soon as possible.

Call us today at (913)764-5010 to speak to a Johnson County DUI lawyer about preserving your driver's license!

Recent news regarding our law firm's Johnson County DUI-DWI representation

(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.

12/27/10 - Today a Johnson County District Court misdemeanor case against our client was dismissed after negotiations with prosecutors. Our law firm's attorneys had requested an in-car video, which was not produced. When we pressed for an explanation and also pointed out jurisdictional and Constitutional defects with the case, the prosecution agreed to dismiss the case. Our client no longer faces prosecution or a driver's license suspension.

10/22/10 - We learned that a DUI client facing a one year driver's license suspension had won her 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 - Our DUI lawyers won an driver's license administrative hearing today by pointing out a technical defect with the certification of the Intoxilyzer 8000 instrument (aka the breathalyzer). This hearing was based on an Overland Park DUI charge. 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.

9/28/09 - The attorneys in this office recently pled a 4th time DUI charge as a second time offense which meant that our client was not convicted of a felony and would not face extensive jail time. Additionally, the fine imposed was significantly less than that which is mandated for a 4th offense. The result was crucial to our client who faced serious job implications if he was convicted of a felony.

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 word that we had prevented a 1 year driver's license suspension for our client charged in Johnson County District Court. We successfully pointed out that the State Trooper had incorrectly certified the DC-27, which is the document triggering a driver's license suspension for most Johnson County DUI cases.

6/24/09 - This law office's newest attorney working on Johnson County DUI cases, 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, despite our request over 4 months prior. 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. Since we had previously avoided a license suspension by the Kansas Department of Revenue, winning this trial was crucial to preserving his driver's license.

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. This stemmed from a trial which resulted in a hung jury.

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.

2/27/09 - Today Scott McFall (the newest attorney 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 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 - We 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 of the 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 toproceed 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.


3/1/07- Upon successfully taking a traffic ticket to trial, our client's fine was reduced to $0.

 

Olathe DUI attorney:

1. Almost every Johnson County DUI case will involve 2 separate components: (1) the criminal case in Johnson County District Court, or a municipal court; and (2) a driver's license hearing with the Kansas Department of Revenue. You can win one, and lose the other, win both, or lose both. You have the right to be represented by an Olathe DUI lawyer in both proceedings.

2. In nearly every Olathe DUI case, you only have 14 calendar days from the date of your arrest to request an administrative hearing with the Kansas Department of Revenue, or your license will automatically be suspended for a period from 30 days to life, depending on your driving record. One of our law office's experienced DUI attorneys can temporarily or permanently preserve your driving privileges by requesting a hearing and then representing you at this hearing.

3. The penalties for a 1st time DUI conviction in Olathe of Johnson County include up to 6 months in the county jail, a $1000 fine, a 12 month probation, court ordered classes and treatment, and hundreds of dollars in court costs and monitoring fees. For a 2nd time Olathe DUI conviction, you are looking at up to 1 year in jail, a $1500 fine, and the same probation & treatment requirements. 3rd and subsequent DUI charges will be sent to Johnson County District Court for be refiled as felonies, where the potential and actual penalties are much harsher. Hiring a knowledgeable DUI attorney can result in significantly lower penalties.

4. There are 3 possible outcomes for most Olathe DUI charges: (1) Acquittal/Dismissal of an Olathe DUI charge : Once a DUI case has been charged in Olathe, the only way to truly clear your record is to fight the case and secure an acquittal or dismissal of the charge. This is done through trial or through pre-trial practice and procedures. we have experience taking Olathe DUI cases to trial in Olathe Municipal Court and Johnson County District Court; (2) Olathe DUI diversion : A DUI diversion in Olathe is essentially a contract between the driver and the prosecutor's office in which the driver agrees to follow the diversion terms (usually ~$1000 in fines/fees/costs, 12 months of monitoring, a drug and alcohol evaluation, called an ADSAP, and treatment/classes) and in exchange, the prosecutor agrees to "dismiss" the charge at the end of a 12 month period; (3) Conviction of the Olathe DUI charge : A conviction is either the result of pleaing guilty or taking a case to trial and being found guilty by the Judge. The penalties for a conviction will depend on the circumstances surrounding a case.

5. The costs to plead guilty to an Olathe DUI charge stretch far beyond the fines and costs imposed by the court and your attorney's fees and can easily exceed $10,000 over the years. A driver's license suspension from an Olathe DUI can lead to missed work which could cost you your job or hamper your attempts at a promotion. A driver's license suspension usually also includes an ignition interlock requirement which will cost thousands of dollars to comply with. A conviction could cost you your job if you are a teacher or other professional whose professional license can be revoked upon a conviction. Finally, an Olathe DUI conviction will almost always lead to hundreds or thousands of dollars in increased insurance premiums.

 

Possible DUI/DWI criminal court outcomes in Johnson County:

1. Dismissal of the Johnson County driving under the influence (DUI) charge - DUI cases are rarely dismissed in any Johnson County Court because of the emphasis the prosecutors put on DUI cases. The DUI lawyers in our office have successfully worked to have DUI cases dismissed, but please understand that this is an extremely rare outcome and should not be expected in the average DUI case in Johnson County.


2. Johnson County DUI Diversion - A Johnson County DUI Diversion is essentially a contract between the prosecutor's office and the defendant. In a typical agreement, The prosecutor's office agrees to suspend their prosecution of the defendant for a 12 month period and agrees to dismiss the case if the defendant complies withthe diversion terms. Johnson County diversion terms usually include ~$1000 in fines, fees, and costs; submitting to a drug and alcohol evaluation (called an "ADSAP") and following the recommendations from it; abstaining from drugs and alcohol for 12 months, while submitting to random urine analysis; not picking up any new criminal charges for a 12 month period; and completing various other requirements. KSA 8-1567, the Kansas DUI statute utilized in Johnson County, only allows a diversion for first time DUI charges, and sets up a number of requirements and conditions for diversion contracts to be offered.

3. An advantageous guilty plea to the misdemeanor or felony DUI charge - If you do not have a valid defense and are either not eligible or are not approved for diversion, a guilty plea for your Johnson County DUI charge may be your best option. A guilty plea is an agreement between the defendant, the defendant's attorney, and the prosecutor to recommend a sentence to the Court in exchange for the defendant's guilty plea. Guilty pleas for Johnson County DUI charges also may involve the dismissal of companion charges, or amendments to lesser offenses. While judges are not bound by plea agreements, a guilty plea is often the best option for reducing your exposure to a Johnson County DUI charge.

4. Acquittal through trial - The lawyers in this office love taking DUI cases to trial, and if you decide to take your Johnson County DUI case to trial, we will be happy to represent you in one of the local municipal courts or Johnson County District Court. To be acquitted at trial, you will either go to trial in front of a municipal court judge or in front of a jury in Johnson County District Court. No matter how good the facts of your case are, there are no guarantees at trial and you could wind up walking away with a clean record or with a conviction for DUI.

5. Dismissal due to a successful Motion to Suppress - One of the best ways to secure an acquittal is through a Motion to Suppress filed in either Johnson County District Court or the municipal court. Such a motion is a request that the Court suppress certain evidence that was gathered due to a Constitutional violation or a procedural violation. In the terms of a Johnson County DUI charge, such a Motion might be filed due to an illegal stop. If the Judge agreed with the Motion, then all evidence gathered by the police after the stop would be ruled inadmissible and your case would almost certainly be dismissed by the prosecutor. Another such Motion to Suppress might be filed because guidelines or procedures required for a valid Johnson County Intoxilyzer 8000 test were not complied with. If the breath test were ruled inadmissible, then your case's chances at trial would be greatly improved.


6. Conviction through trial - If you choose to take your case to trial in a local municipal court or Johnson County District Court, but you do not prevail, you will be convicted of the DUI charge. The penalties associated with a Johnson County DUI conviction will depend on the judge who will make a determination based on the circumstances surrounding your case

Choosing a Johnson County driving under the influence (DUI-DWI) lawyer or law firm:

Choosing a driving under the influence attorney/lawyer for your Johnson County DUI/DWI 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 Olathe law office believe that you should be comfortable with your DUI attorney and we suggest that you ask a potential lawyer the following questions:

1. How often does the driving under the influence (DUI-DWI) 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 cleints' 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 beleive helps us when negotiating advantageous resolutions for our clients.

Of course, our 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 District Court.

Believe it or not, many attorneys who handle DUI cases in Johnson County have never taken a case to a jury trial. Once prosecutors realize that you are represented by an attorney without DUI trial experience, they may not have any incentive to offer you a fair plea deal in your DUI case.

The bottom line is that if you have been charged with a DUI in Johnson County, you want an attorney who is willing to put your case in front of a jury. Even if you aren't seeking a trial, you may still end up with a better result.

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

At the Law Offices of Jeremiah Johnson, LLC, we believe in challenging every proposed driver's license suspension.

Unfortunately, some Johnson County lawyers believe that administrative hearings are unwinnable and will treat them as such. The DUI attorneys in our office take the opposite approach.

At the Law Offices of Jeremiah Johnson, LLC, we understand how important your driver's license is. There is no reliable public transportation in Johnson County which means that your driver's license is the key to daily life. The administrative hearing associated with a DUI arrest is often as important, if not more important than the criminal case.

There are no plea deals, diversions, or hardship licenses when it comes to Kansas administrative driver's license suspensions. Thus, there is little incentive not to put up a fight at the administrative hearing.

The staff and attorneys in our law office scan the police reports, audio and video recordings, intoxilyzer records, and other relevant evidence looking for a break in your case.

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

The attorneys in our law office focus our criminal practice on Johnson County driving under the influence cases (DUI/DWI). We feel that the nature of DUI charges, as "status crimes," favors attorneys who focus on DUI defense over attorneys who are a "jack of all trades."

Most Johnson County DUI cases involve drivers who were not in an accident and did not cause any damage to persons or property. Nearly every other criminal case involves an injury to a person or loss/damage to property, but in a drunk driving case, the prosecution is only alleging that you "could" have caused an injury or damage.

The special nature of DUI criminal cases lends itself to a specialized attorney. The DUI/DWI attorneys in our Johnson County law office have secured acquittals the old fashioned way - through trial, and through the use of challenges to the field sobriety tests, false arrests, bad traffic stops, improperly calibrated or maintained breath test equipment, and hosts of other reasons. There are literally hundreds of ways to win a Johnson County drunk driving case (and probably thousands of ways to lose one), you owe it to yourself to hire a DUI attorney who will look at all aspects of your case.

5. Does the DUI attorney understand Constitutional law and it's implications on Johnson County DUI defense?

The attorneys in our law firm evaluate the Constitutionality of every traffic stop or check lane associated with a driving under the influence (DUI/DWI) case. This is because, if we can show that the initial contact with our client violated Constitutional principles, then we can move to "suppress" the results of the stop, essentially winning a DUI case and securing an acquittal before trial even begins.

Similarly, our DUI lawyers evaluate each drunk driving arrest to determine whether the arresting officer had "probable cause" to make an arrest. What this means is that, if we can prove that the arrest was bad, then we can file a motion to suppress which will usually serve to secure an acquittal.

6. Does the attorney understand the intracacies of the field side sobriety tests?

The DUI lawyers in our office understand the various "standardized field side sobriety tests" (SFSTs) that law enforcement officers ask drivers to perform. We use this knowledge to challenge the officers' instructions, grading, and conclusions.

A proper challenge to the SFSTs can help lead to an aquittal.

7. Does the attorney understand the intracacies of the Intoxilyzer 8000 breath test instrument?

The Kansas Department of Health and Environment is tasked with setting the standards for the Intoxilyzer 8000 used by Johnson County law enforcement agencies. If these standards are not followed, then the breath test may not be admissible which will significantly improve most DUI cases and will usually lead to a win at the administrative hearing.

Our DUI attorneys scour the records associated with each breath test machine to insure that, if any mistakes were made, we can capitalize on them.

What to do if you are pulled over for driving under the influence in Johnson County:

You have the right to NOT answer questions when you are being investigated for driving under the influence of alcohol or drugs (DUI/DWI) in Johnson County, KS.

It is important to remember that Johnson County law enforcement officers are trained to investigate look for DUI "clues" during every traffic stop. This is especially true at night when Johnson County police officers on traffic patrol are primarily looking to turn traffic stops into driving under the influence charges (DUI/DWI).

If you are questioned as a suspect, the law enforcement officer is seeking information and/or leads with which he can find sufficient evidence to convict you. Often, in this search for evidence, rules are bent and statements are taken out of context in order to enhance the probability of a conviction.. Law enforcement officers are, among other things, professional witnesses. This places anyone questioned at a great disadvantage since any discrepancies between an officer's testimony and an ordinary citizen will largely be construed to favor the officer.

Often Johnson County enforcement officers will make statements such as "I just want to get your side or the story..." or "it will go easier on you if you cooperate." The fact of the matter is that the officer is in search of evidence and if he/she had enough to arrest or charge you, he/she would have already done so. Moreover, a law enforcement officer has no authority or ability to cut deals so that it "will go easier on you." Only a prosecuting attorney has that power. You can still be cooperative. However, it is important to do so in a controlled setting where you have access to legal advice. Therefore, if a law enforcement officer wishes to question you about a specific crime, it is important to remain silent. Your silence cannot be used against you in court. You should also contact an attorney so that any interviews or questions may be conducted in a controlled environment with your attorney present.

Our law office's Johnson County DUI lawyers recommend that you NOT answer questions related to a police officer's DUI investigation.

While no attorney can give "general" advice applicable to every case, it is clear that the vast majority of drivers in Johnson County, Kansas will incriminate themselves if they answer a police officer's questions relating to a DUI investigation.

Johnson County Sheriff's Deputies, the Kansas Highway Patrol, and Johnson County police officers are all extensively trained to investigate drunk driving and to ask "trick questions" which only serve to strengthen a case against a driver, regardless of what the answers are.

If you are investigated for drunk driving in Johnson County, KS, our DUI-DWI lawyers recommend that you keep the following in mind:

1. When you see the flashing lights from the police car, pull over promptly and smoothly.

Police in Johnson County are trained to observe whether a driver pulls over too slowly, too quickly, or in a jerky manner, then they will consider this as evidence of intoxication.

2. Once you have pulled over, place your car keys on the dash and keep your hands on the steering wheel.

If you are moving around the car or searching for your driver's license, the police officer might think you are trying to hide something.

If you keep your hands on the wheel and place the keys on the dash, it will demonstrate to the officer that you are not doing anything illegal and that you aren't going to try and drive off.

If you have passengers in your car, instruct them to keep their hands in front of them and to avoid any movements.

Pass the time by thinking about where your driver's license and insurance card are. You will need to get them once the officer arrives at your window.

3. When requested, provide your driver's license and insurance information to the police officer as smoothly as possible.

Johnson County police officers will usually start an encounter by stating something to the effect of: "Hi, I'm ________ with the Kansas Highway Patrol, the reason I pulled you over was ______. Can I see your driver's license and registration please."

Kansas police officers are trained to see if you have difficulty getting the documentation they ask for. If you provide the wrong documentation, take too long, or "fumble" with your documents, they will consider that as evidence of inxoication.

Johnson County police officers will also ask distracting questions designed to trip you up or make you forget about handing them your license and insurance. For instance, after asking for your documentation, the police officer will often say: "I smell alcohol coming from the car, how much have you had to drink tonight."

Your answers is key to many Johnson County drunk driving (DUI/DWI) cases. If you admit drinking, you will support the officer's decision to arrest you. If you lie and say you were not drinking, then you simply anger the officer who will then think that you have something to hide and that any answer you give is another lie. The best course of action is to say nothing at all.

4. We recommend that you reply to questions related to a DUI investigation by answering:

"I would prefer not to answer any questions."

All citizens have a right to be free from self incrimination. This includes the right to not answer questions from police. Miranda v. Arizona 384 U.S. 436 (1966).

Police officers in Kansas are not required to give Miranda warnings during a routine traffic stop unless they have probable cause to make an arrest or have arrested the suspect. Berkemer v. McCarty, 468 U.S. 420 (1984). Even though a Johnson County law enforcement officer questioning you about drunk driving is not required to give you Miranda warnings, you are not required to answer any questions or to even perform standardized field side sobriety tests (SFSTs). 5. Do not let the police officer intimidate you into answering questions. Law enforcement officers in Johnson County are trained to persuade people to talk to them and incriminate themselves. Once you have told the officer that "you would prefer not to answer any questions," the police officer will likley press you in an attempt to get you to change your mind. You can expect to hear something like "If you haven't done anything wrong, then you shouldn't have a problem answering my questions," "I just need to make sure you're safe to drive," or "I can't let you drive off if you won't answer my questions." Do NOT take the bait. In order to arrest you for driving under the influence, the Johnson County police officer must have probable cause to make an arrest.

Probable cause is "the reasonable belief that a specific crime has been or is being committed and that the defendant committed the crime. [Citation omitted.] Probable cause to arrest exists when the facts and circumstances within the arresting officer's knowledge are sufficient to assure a person of reasonable caution that an offense has been or is being committed and the person being arrested is or was involved in a crime. The officer's knowledge must be based on reasonably trustworthy information." State v. Hill, 281 Kan. 136, 143, 130 P.3d 1 (2006).

In the vast majority of cases, talking to the officer will only provide additional facts for which the can rely on to establish probable cause.

6. If the police officer asks you to get out of your vehicle to conduct standardized field side sobriety tests (SFSTs), you must comply with the order to exit the car.

If the officer orders you out of the car, you must comply or you will likely be arrested. However you are not required to perform any field sobriety tests the Johnson County police officer asks you to perform.

When asked to exit the car, our Johnson County DUI lawyers recommend that you ask the officer:

(a)why he wants you to exit the car;

(b)whether you are under arrest.

When the officer replies that you are not under arrest, ask him if you are free to leave. The officer's answers to these questions might be important in court.

7. If the officer asks you to perform a preliminary breath test (PBT), you must either do so or recieve a traffic ticket.

In almost every Johnson County DUI investigation, the police officer will request that a driver take a hand held breathalyzer, called a preliminary breath test (PBT).

The police officer can arrest you for drunk driving regardless of what the results are. Some officers will only arrest those that blow over .08, others will arrest anyone who is over .08 or close to .08, and some officer will let folks go if they blow below .08.

If you do not take the preliminary breath test (PBT), the police officer will likely arrest you, although he could also let you go. This depends on the officer and the circumstances in each case. You will be issued a traffic ticket which is a non-moving violation.

Our DUI lawyers cannot say whether it is better or worse to take a preliminary breath test (PBT) if you're being investigated for a Johnson County DUI. The answer is simply too fact specific.

MIRANDA WARNINGS

If you are arrested, you may hear the famous Miranda warning that has been drilled into us from television. Most people do not know that law enforcement officers are never required to give Miranda warnings. Moreover a failure to give Miranda Warnings will not necessarily result in the dismissal of a criminal case.

An officer is only required to provide a Miranda warning if there will be a custodial interrogation. You are "in custody" when you are no longer free to leave. Whether you are in Custody may be inferred by actions or by the words of the officer. An interrogation means that the officer must ask questions to elicit incriminating information. Information volunteered is generally not the result of an interrogation. If an officer conducts a custodial interrogation without first giving Miranda Warnings, any statements that are made in response to the interrogation may be held to be inadmissible in Court. Moreover, any evidence derived from statements taken in such a context would also be inadmissible. This is called the "fruit of the poisonous tree" meaning the later discovered evidence was derived from illegally obtained statements.

If an officer wishes to question, you do not have to answer. In fact, unless you are placed in custody, you are free to leave. Once you are placed in custody, any interrogation may only occur after Miranda warnings are read.

POLICE MAY LEGALLY TELL LIES

A law enforcement officer has no duty to tell you the truth. They may lie to you. They may tell you that they have evidence implicating you in a crime. They may say they have evidence implicating another in a crime. All of these deceits are designed to manipulate you to make statements. Even statements that seem favorable to your position may be harmful. As a result, it is important to think of every single word you say as a piece of evidence that t an officer can use to build you a cell whether you are guilty of a crime or not. The less evidence that you provide, the better.