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Driving under the influence (DUI/DWI) Attorney/Lawyer/law firm to represent you in a Mission, Kansas DUI case? |
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Mission, Kansas Driving Under the Influence charges/arrests involve two distinct and separate aspects:
(1) The Criminal Proceedings , which are resolved in the Mission Municipal Court or Johnson County District Court. This is the portion where the prosecuting jurisdiction is trying to put you in jail, force you to complete probation, levy significant fines, and require alcohol treatment and/or classes.
(2) The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureau which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license.
You can win one and lose the other, win both, or lose both.
1. Dismissal – DUI cases are rarely dismissed in any Kansas Court. This is because the Kansas DUI statute, KSA 8-1567, specifically disapproves a dismissal of a DUI charge without the Court’s consent. What this means is that a prosecutor cannot simply review a case and dismiss it, he must request permission from the judge. The lawyers in our office have successfully worked to have DUI cases dismissed, but please understand that this is an extremely rare outcome.
2. Diversion – A Mission DUI Diversion is essentially a contract between the prosecutor’s office and the defendant. 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 with the diversion terms. These 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 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 – If you do not have a valid defense and are either not eligible or are not approved for diversion, a guilty plea for your Mission 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 Mission 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 Mission DUI charge.
4. Acquittal through trial – To be acquitted at trial, you will either go tot trial in front of a judge Mission Municipal Court 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.
5. Dismissal due to a Motion to Suppress</u> – One of the best ways to secure an acquittal is through a Motion to Suppress filed in either Johnson County District Court or Mission 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 Mission 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 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 Mission 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 Mission DUI conviction will depend on the judge who will make a determination based on the circumstances surrounding your case.
If you are charged with a DUI in Mission, you are facing:
1. Jail time - A first time conviction is punishable by up to 6 months in the county jail. This office has had considerable success in reducing penalties levied for first time convictions to the statutorily minimum 48 hours in jail. In some cases, a skilled Mission DUI attorney can securethe CWIPS (community weekend intervention program) class which allows the jail time to be served in a a facility other than the county jail.
A second conviction for an Mission, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. KSA 8-1567 states that the defendant must serve at least five consecutive days in custody before probation is granted, but after hearing arguments from a skilled Mission DUI attorney, the Mission Municipal Court Judge can order the defendant to serve only 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the statutory 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required.
A third conviction for an Mission DUI (or any other Kansas DUI) is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Mission DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. A third time conviction will be prosecuted in Johnson County District Court as Mission Municipal Court does not usually have jurisdiction to preside over felony proceedings.
A fourth conviction for an Mission DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Mission DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordere to only serve 72 hours in jail before being eligible for a work release program. Penalties for a fifth or subsequent
2. Fines - A first time DUI in Mission carries a fine between $500 and $1000.
The fine for a second DUI conviction in Mission can range from $1,000 to $1,500.
The fine for a third conviction for DUI in Johnson County ranges from $1,500 to $2,500.
The fine for a fourth or subseqent DUI conviction in Johnson County is at least $2,500.
3. Suspension of your drivers license - a first time conviction or Intoxilyzer test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items) up to a 1 year suspension with an additional 1 year ignition interlock restriction, depending on the alcohol level the machine registered. Refusing to take the Intoxilyzer carries a 1 year suspension. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. More details are available below, but the most important thing to remember is this: In most Mission DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long .
The Kansas Dept. of Revenue (the agency seeking the license suspension) does not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license. They do not consider it their problem that without a license you may lose your job and/or cannot attend court ordered treatment. In fact, Kansas does not grant hardship licenses - you will either be suspended for the time period proposed by the Department of Revenue or you won't.
This is probably the most frustrating part of the entire DUI process in Mission and Kansas in general - the imposition of a suspension of a license necessary for a person to complete their probation, treatment and other Court ordered aspects and also necessary for a person to get to work so they can take care of themselves, their family and pay their Court ordered costs. We believe this is simply an unnecessary burden in most cases and ends up doing more bad than good. This area of the country demands that a person have a license to live their daily lives.
4. Probation Costs and Hassles - In cases where probation is granted by the Mission Municipal Court judge, you will likely be ordered to meet with a probation officer one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Mission, KS DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars.
6. Social Effects - A Mission DUI charge can affect your job status and eligibility, can subject you to ridicule from family and friends and the penalties may seriously affect your daily life.
At the Law Offices of Jeremiah Johnson, LLC, we recognize that everyone is innocent until proven guilty and that being charged with a DUI is not remotely the same as being convicted of a DUI. While many people accept DUI tests as irrefutable evidence, in actuality Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we believe in exploring every angle relating to the FST's and Breathalyzer results when evaluating your case to ensure that your rights are protected.
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with a Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Kansas DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request.
In Johnson County, Mission DUI Administrative Hearings are usually scheduled at least 3 months after the Mission DUI is charged, although recent experience has suggested that the wait is as long as 4 months. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case. If your license was valid before the charge, it will likely remain valid until the hearing, regardless of its outcome or the outcome of your criminal case.
The difficult part of the Department of Revenue administrative hearing is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be uspended, you have to the burden of proving that your license should not be taken from you.
At the Kansas DUI administrative hearing regarding your Mission DUI charge, a number of issues canbe raised by your DUI lawyer in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Mission DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you quickly retain a well-qualified Mission, Kansas DUI defense lawyer as soon as possible after your Mission DUI arrest.
INTOXILYZER 8000 TEST FAILURE IN MISSION
1st time Intoxilyzer 5000/8000 test failure in Mission between .08 and .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.
1st time Intoxilyzer 5000/8000 test failure in Mission above .150: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
2nd and 3rd test failures in Mission between .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
2nd test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
3rd test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
4th test failure in Mission of .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
4th test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
5th test failure in Mission : Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
TEST REFUSAL IN MISSION
1st Time Refusal in Mission: Driving privileges are suspended for one year. The reinstatement fee is $400.00.
2nd Time Refusal in Mission: Driving privileges are suspended for two years. The reinstatement fee is $600.00.
3rd Time Refusal in Mission: Driving privileges are suspended for three years. The reinstatement fee is $800.00
4th Time Refusal in Mission: Driving privileges are suspended for ten years. The reinstatement fee is $1,000.00
5th Time Refusal in Mission: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
For experienced and aggressive legal representation in the defense of a DUI charge in Mission, contact my offices to schedule a free initial consultation. My offices are open from 7 am until 6 pm, Monday through Friday and evening and weekend hours are available by appointment. I accept Visa, MasterCard, Discover and American Express.
The Kansas DUI statute adopted by the City of Mission:
8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.
(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.
(f) (1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.
(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(k) (1) Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(m) The court shall 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.
(n) For the purpose of determining whether a conviction is afirst, 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.
(o) 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.
(p) (1) 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.
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.
(q) 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.
(r) 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.
(s) 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.
(t) 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. 65-4165, and amendments thereto.
(u) 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.
(v) 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.
History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; July 1.
The Law Offices of Jeremiah Johnson, LLC
104 E. Poplar
Olathe, KS 6606
Phone:(866) 656-1268
Fax: (913) 764-5012
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.
8/10/09 - Today we received notice that one of our law office's first fime DUI clients charged in Johnson County District Court would not be receiving a 1 year driver's license suspension. We were able to demonstrate to the Kansas Department of Revenue that the State Trooper had not correctly certified the DC-27, the document used to trigger a driver's license suspension.
6/24/09 - Our law office's newest attorney, Scott McFall, negotiated a dismissal of a Shawnee, KS driving under the influence (DUI) charge. Securing a dismisssal of a Johnson County DUI charge is extremely difficult because the statute specifically states that the DUI charge may not be amended to another charge and may not be dismissed without judicial approval. Scott McFall was able to persuade the prosecutor that the City's case was insufficient to support a conviction. Over 6 weeks before, we were able to demonstrate that the DC-27 was "defective on it's face," meaning that the license suspension proposed by the Kansas Department of Revenue was also dismissed.
6/18/09 - Today we secured an acquittal on a DUI charge in Overland Park Municipal Court. Our client was charged with driving under the influence and was also facing a 1 year driver's license suspension for refusing the breath test. The trial stretched over two days after we discovered mid-trial that a video from one of the responding officers had not been produced. This trial featured a Motion to Suppress over 4 different Constitutional issues. Our client was an entreprenuer who relied on his license to make a living.
5/22/09 - Today we won two administrative hearings, fighiting off proposed suspensions of 1 and 3 years. We successfully raised issues regarding the officer's certifcation, our client's withdrawal of refusal under the terms of Standish v. Department of Revenue, 235 Kan. 900, (1984), the flawed field side sobriety tests given by the Gardner Department of Public Safety officer, and an improper DC-70 advisory notice.
3/14/09 - Today we succesfully defended our client's driver's license at an Administrative Hearing with the Kansas Department of Revenue. We strenuoulsy argued that the "tag team" approach to meeting the Kansas Department of Health and Environment's (KDHE) protocol was not sufficient to render a valid breath test.
2/27/09 - Today Scott McFall (he is the newest attorney handling DUIs in our office) convinced the Paola Municipal Court to approve house arrest for our client who was facing 90 days in custody. This result is especially noteworthy because Paola did not have a house arrest program in place and the statute our client was being sentenced on called for a 90 day mandatory sentence. Scott had to convince the Court to allow a house arrest program to be set up in order to get this intiated. As a result, our client will be allowed to serve his 90 days on house arrest instead of wasting time in jail. This will allow him to avoid losing his job as a person is usually allowed to work while on house arrest.
2/25/09 - Today the Kansas Department of Revenue dismissed our client's proposed 3 year driver's license suspension stemming from a DUI charge in Johnson County District Court. This law office sucessfully argued that the Kansas Highway Patrolman did not obtain personal service in a timely fashion as indicated on the DC-27.
2/9/08 - We took part in a jury trial in Johnson County District Court which resulted in a hung jury. The long term effect of this result was that the defendant will not be retried for DUI.
11/16/08 - 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.
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.
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.
Personal, Profesional & Courteous Representation: If you have been arrested for or charged with DUI in Mission, you want to be represented by a law office which truly understands the situation you are facing and will treat you like a real person facing real problems. The staff and attorneys in this office understand that most folks charged with DUI are good people who simply made a mistake and in most cases didn't even think they were over the legal limit. We make it our goal to always keep in mind that our clients
The attorneys and staff at the Law Offices of Jeremiah Johnson, LLC understand that being charged with a DUI in Kansas can leave you confused, scared, and stressed. We take care to communicate with our clients throughout the DUI process in Mission Municipal Court and to answer any questions they may have. We strive to be accessible beyond business hours, even providing our cell phone numbers and email addresses to our clients to facilitate after hours communication.
Knowledgeable & Aggressive Representation: When facing a Mission DUI charge, you also want a lawyer with extensive knowledge of the drunk driving laws in Kansas. You need a DUI attorney who understands how to interpret and challenge breathalyzer results, has experience working in Mission Municipal Court, and who can effectively represent you at a drivers license suspension administrative hearing. You want a Mission DUI lawyer who will do everything practical to find a way to secure an advantageous disposition. Most importantly, when looking for legal representation on a Mission DUI, you want a DUI lawyer who will treat you with courtesy and respect and not just as another file.
The Mission and Kansas DUI statutes are some of the toughest in the entire country with license suspensions and jail time required for every DUI conviction in Kansas - even for first time convictions of people with no criminal record! While this site contains a good summary of the laws you'll be encountering, every DUI case is unique and you should contact an attorney to get the information relevant to your unique case .
The attorneys and staff at our law office know that most Mission DUI charges begin with a traffic stop unrelated to DUI, often beginning with a DUI stop on I35 as it passes through a narrow stretch of Mission. We have seen countless videos where the Mission Police officer accuses the driver of drinking, orders them out of their car, forces them to perform field side sobriety tests, and then arrests them for DUI. We know that this process can seem extremely unfair at times and we do our best to help you get the best possible outcome in your case. Contact us at 913 764 5010 to schedule a free initial consultation to discuss the unique circumstances surrounding your Mission DUI case.
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Recent News(Results involve unique clients with unique circumstances and should not be construed as a promise of similar results in your case) |
Mission, Kansas Driving Under the Influence charges/arrests involve two distinct and separate aspects:
(1) The Criminal Proceedings , which are resolved in the Mission Municipal Court or Johnson County District Court. This is the portion where the prosecuting jurisdiction is trying to put you in jail, force you to complete probation, levy significant fines, and require alcohol treatment and/or classes.
(2) The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureau which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license.
You can win one and lose the other, win both, or lose both.
1. Dismissal – DUI cases are rarely dismissed in any Kansas Court. This is because the Kansas DUI statute, KSA 8-1567, specifically disapproves a dismissal of a DUI charge without the Court’s consent. What this means is that a prosecutor cannot simply review a case and dismiss it, he must request permission from the judge. The lawyers in our office have successfully worked to have DUI cases dismissed, but please understand that this is an extremely rare outcome.
2. Diversion – A Mission DUI Diversion is essentially a contract between the prosecutor’s office and the defendant. 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 with the diversion terms. These 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 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 – If you do not have a valid defense and are either not eligible or are not approved for diversion, a guilty plea for your Mission 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 Mission 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 Mission DUI charge.
4. Acquittal through trial – To be acquitted at trial, you will either go tot trial in front of a judge Mission Municipal Court 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.
5. Dismissal due to a Motion to Suppress</u> – One of the best ways to secure an acquittal is through a Motion to Suppress filed in either Johnson County District Court or Mission 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 Mission 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 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 Mission 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 Mission DUI conviction will depend on the judge who will make a determination based on the circumstances surrounding your case.
If you are charged with a DUI in Mission, you are facing:
1. Jail time - A first time conviction is punishable by up to 6 months in the county jail. This office has had considerable success in reducing penalties levied for first time convictions to the statutorily minimum 48 hours in jail. In some cases, a skilled Mission DUI attorney can secure the CWIPS (community weekend intervention program) class which allows the jail time to be served in a a facility other than the county jail.
A second conviction for an Mission, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. KSA 8-1567 states that the defendant must serve at least five consecutive days in custody before probation is granted, but after hearing arguments from a skilled Mission DUI attorney, the Mission Municipal Court Judge can order the defendant to serve only 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the statutory 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required.
A third conviction for an Mission DUI (or any other Kansas DUI) is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Mission DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. A third time conviction will be prosecuted in Johnson County District Court as Mission Municipal Court does not usually have jurisdiction to preside over felony proceedings.
A fourth conviction for an Mission DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Mission DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordere to only serve 72 hours in jail before being eligible for a work release program. Penalties for a fifth or subsequent
2. Fines - A first time DUI in Mission carries a fine between $500 and $1000.
The fine for a second DUI conviction in Mission can range from $1,000 to $1,500.
The fine for a third conviction for DUI in Johnson County ranges from $1,500 to $2,500.
The fine for a fourth or subseqent DUI conviction in Johnson County is at least $2,500.
3. Suspension of your drivers license - a first time conviction or Intoxilyzer test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items) up to a 1 year suspension with an additional 1 year ignition interlock restriction, depending on the alcohol level the machine registered. Refusing to take the Intoxilyzer carries a 1 year suspension. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. More details are available below, but the most important thing to remember is this: In most Mission DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long .
The Kansas Dept. of Revenue (the agency seeking the license suspension) does not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license. They do not consider it their problem that without a license you may lose your job and/or cannot attend court ordered treatment. In fact, Kansas does not grant hardship licenses - you will either be suspended for the time period proposed by the Department of Revenue or you won't.
This is probably the most frustrating part of the entire DUI process in Mission and Kansas in general - the imposition of a suspension of a license necessary for a person to complete their probation, treatment and other Court ordered aspects and also necessary for a person to get to work so they can take care of themselves, their family and pay their Court ordered costs. We believe this is simply an unnecessary burden in most cases and ends up doing more bad than good. This area of the country demands that a person have a license to live their daily lives.
4. Probation Costs and Hassles - In cases where probation is granted by the Mission Municipal Court judge, you will likely be ordered to meet with a probation officer one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Mission, KS DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars.
6. Social Effects - A Mission DUI charge can affect your job status and eligibility, can subject you to ridicule from family and friends and the penalties may seriously affect your daily life.
At the Law Offices of Jeremiah Johnson, LLC, we recognize that everyone is innocent until proven guilty and that being charged with a DUI is not remotely the same as being convicted of a DUI. While many people accept DUI tests as irrefutable evidence, in actuality Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we believe in exploring every angle relating to the FST's and Breathalyzer results when evaluating your case to ensure that your rights are protected.
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with a Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Kansas DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request.
In Johnson County, Mission DUI Administrative Hearings are usually scheduled at least 3 months after the Mission DUI is charged, although recent experience has suggested that the wait is as long as 4 months. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case. If your license was valid before the charge, it will likely remain valid until the hearing, regardless of its outcome or the outcome of your criminal case.
The difficult part of the Department of Revenue administrative hearing is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be uspended, you have to the burden of proving that your license should not be taken from you.
At the Kansas DUI administrative hearing regarding your Mission DUI charge, a number of issues can be raised by your DUI lawyer in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Mission DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that youquickly retain a well-qualified Mission, Kansas DUI defense lawyer as soon as possible after your Mission DUI arrest.
INTOXILYZER 8000 TEST FAILURE IN MISSION
1st time Intoxilyzer 5000/8000 test failure in Mission between .08 and .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.
1st time Intoxilyzer 5000/8000 test failure in Mission above .150: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
2nd and 3rd test failures in Mission between .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
2nd test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
3rd test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
4th test failure in Mission of .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
4th test failure in Mission of .150 or higher: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
5th test failure in Mission : Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
TEST REFUSAL IN MISSION
1st Time Refusal in Mission: Driving privileges are suspended for one year. The reinstatement fee is $400.00.
2nd Time Refusal in Mission: Driving privileges are suspended for two years. The reinstatement fee is $600.00.
3rd Time Refusal in Mission: Driving privileges are suspended for three years. The reinstatement fee is $800.00
4th Time Refusal in Mission: Driving privileges are suspended for ten years. The reinstatement fee is $1,000.00
5th Time Refusal in Mission: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
For experienced and aggressive legal representation in the defense of a DUI charge in Mission, contact my offices to schedule a free initial consultation. My offices are open from 7 am until 6 pm, Monday through Friday and evening and weekend hours are available by appointment. I accept Visa, MasterCard, Discover and American Express.
The Kansas DUI statute adopted by the City of Mission:
8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.
(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.
(f) (1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.
(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performsan 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) The court shall 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.
(n) For the purpose of determining whether a conviction is afirst, 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.
(o) 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.
(p) (1) 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.
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.
(q) 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.
(r) 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.
(s) 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.
(t) 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. 65-4165, and amendments thereto.
(u) 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.
(v) 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.
History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; July 1.
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