DUI Attorney/Lawyer in Olathe, Kansas

Are you in Need Professional and Aggressive Defense of DUI (Driving Under the Influence) Charges?

Olathe DUI's are extremely serious charges because the Olathe and Kansas DUI laws (generally KSA 8-1567) call for jail time for ALL convictions, even for first time offenders. In addition, a driver's license suspension is called for for every breath test failure or refusal.  As a result, a DUI charge in Olathe will put the defendant's freedom, money, license, and reputation at risk.  

If you have been arrested or charged with DUI in Olathe or elsewhere in Johnson County, you want a lawyer with extensive knowledge of the drunk driving laws in Kansas and experience in Olathe Municipal Court. You need an attorney who knows your rights regarding the admissibility of evidence, is aware of the questionable reliability of field side sobriety tests, understands how to interpret and challenge breathalyzer results, is well versed on the case law applicable to your case, and who can effectively represent you at a drivers license suspension or drivers license revocation proceeding.  You want an attorney who will aggressively evaluate every aspect of your case to make sure your rights are protected.

At the Law Offices of Jeremiah Johnson, LLC, we represent men and women throughout Johnson County in all matters related to or arising out of an arrest for or charge of drinking and driving. Contact me to schedule a free initial consultation.

What You Need to Know About Drinking and Driving (DUI) in Olathe

People charged with a driving under the influence (DUI) in Olathe are facing jail time, a driver's license suspension ranging from 30 days to life, hundreds or thousands of dollars in fines/court costs, as well as the embarrassment, lost time, and inconvenience that will come with a conviction of driving under the influence in Olathe. Quick intervention by an experienced Olathe DUI lawyer is crucial to protect your rights, property, liberty, and license.

At the Law Offices of Jeremiah Johnson, LLC, we still believe 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.  We cannot guarantee results, but we can tell you that we will diligently pursue your case.

We Will Take Your Olathe DUI Case to Trial if Appropriate

Unfortunately, there are many Olathe DUI attorneys who will agree to represent you without a thought of taking your case to trial - this is NOT a good thing. First, an attorney who does not take your case with the assumption that it will go to trial may not properly evaluate all of the evidence and may miss important facts which could lead to an acquittal.

Furthermore, when prosecutors realize that you're represented by an Olathe DUI lawyer who will not take the case to trial, they have no incentive to offer a good plea bargain. In my experience, the plea deals offered by prosecutors get better when a DUI attorney begins to discover and exploit weaknesses in the prosecution's case.  It really isn't any different than a poker game or business negotiation - if you know the other side is always bluffing, you're going to bully them around.

How do you determine whether your Olathe DUI lawyer is willing to fight for your rights?

Ask them questions such as whether they've actually done a bench trial in Olathe Muncipal Court - it would shock you that some will tell you that they have not.  I know of one attorney who has practiced for 30 years and has never taken a DUI case to a jury, but yet he continues to "represent" folks in DUI cases in Olathe.

While there is no sure fire way to ascertain whether your attorney is more interested in representing you or simply collecting a fee, one warning sign is an attorney who tells you that you can't win at the administrative hearing.  Make no mistake about it - the deck is stacked against the driver at the administrative hearing and they are difficult for even the best Olathe DUI attorneys to win.  However, if your attorney doesn't beleive they're winnable, then he or she might not adequately represent you at a hearing and you ought to think seriously about whether throwing in the towel and surrendering your licesnse for 30 days, a year, or more is in your best interests.

What You Need to Know About Field Side Sobriety and Breathalyzer Tests conducted by Olathe Police Officers

While investigating whether a driver is DUI, Olathe police officers typically use a series of "tests" designed to give them probable cause to arrest a driver and take them to the police station to have them take a breathalyzer test.

While many people - and unfortunately, some criminal defense attorneys - accept DUI "tests" as irrefutable evidence, in reality, Breathalyzers such as the Intoxilyzer 8000/5000 and field side sobriety tests (FST's) can be highly inaccurate, unfair, and unreliable under certain conditions. This office believes 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 diligently and aggressively explore every angle relating to the FST's and Breathalyzer results when evaluating your Olathe DUI case to ensure that your rights are protected.

Many people might not be able to pass field side sobriety tests even when completely sober due to injuries, personality, age, weather, or other conditions. This is hardly ever taken into account by the officer who is looking for reasons to make a DUI arrest.

In fact, experience has shown me that most people fail these tests regardless of whether they're sober or under the influence.  

I. The Walk-and-Turn "Test"

Test Conditions

According to NHTSA, the government body which came up with this test, the "Walk-and-Turn test requires a designated straight line, and should be conducted on a dry, hard, level, non-slippery surface, under relatively safe conditions." Even though the validity of the test is compromised by the officer's failure to adhere to these simple requirements, in Olathe, police officers often force suspects to perform this exercise in the dark on uneven, wet, slippery, slopes littered with debris. If the roadway has
no line, officers will instruct suspects to imagine that there is such a line and perform the test anyway. At trial, these officers will claim that the suspect stepped off the line which is often not recorded by the officer's in car camera because the viewing angle is too high. It is very rare for an officer to have a suspect perform the exercise elsewhere, even if the recommended conditions exist just across the street.

As a result, almost every person subjected to these tests "fails" them - our research has shown that on average, only about 3% of drivers coming into our office have passed the walk and turn test.

These grading criteria purport to show that the test subject is drunk because their balance and coordination are not up to par. The biggest problem with this idea is that it doesn't take into account that many people can't perform the tests, even when sober. The walk and turn test requires drivers to walk in a manner that is completely unnatural and unfamiliar to them. Only one chance is given and if the driver fails, they're likely going to be arrested. The grading of these tests do not take into account the fact that people may have injuries that do not allow then to perform the tests whether sober or drunk. The tests do not take into account that age, weight, gender, and athletic ability play a part in how well a person can perform these tests.

During the walk and turn test, the Olathe police officer watches for"distinct clues" such as:

1. Observing whether the driver maintains his/her balance during the instructions. This grading criteria is extremely unfair because the instructions are given only after the Olathe cop has forced the driver to stand with one leg in front of the other. Try it - this is a very unnatural and uncomfortable position and the officer will grade against you if you move your feet to readjust or if you sway back and forth, even slightly. It is important to note that the officer will not stand in this manner even though he requires the driver to do so.  Most people fail the walk and turn test before they even begin walking as they will shift thier feet and arms while the officer is giving instructions. Each action is considered a "clue" and two clues count as a failure.  I am not making this up.

2. Observing whether a driver starts the test before they're told to. This grading criteria purports to grade whether a person can follow instructions which the testing agency believes may be a sign of impairment. The problem with this is that the Olathe police officer will not make it clear beforehand that starting early will be counted against a driver. The nervousness that drivers face while being forced to perform these tests often contributes to them starting early.

3. Whether the driver stops during the test to steady themselves.

4. Observing if the driver does not touch heel-to-toe (space 1/2 inch or more).

Believe it or not, the officer will not have a ruler and will simply "eyeball" the measurement.  This is rarely caught on video, so it will end up being your word versus the officer's. 

5. Watching to see if the driver steps off of the line, whether the line is real or imaginary.  

This sounds unfair, and it is.  You're supposed to imagine the same line that the Olathe officer has imagined in his head.  Whether you step off of it or not is entirely up to him. 

6. Observing whether the driver raises either arm more than 6 inches from their body.
This, as with all of the other "clues" does not take a person's natural balance or coordination into account.  Fortunately, this criteria is more easily observed on the officer's in-dash video for later review.

7. Counting to see if the driver takes the correct number of steps. This criteria supposedly shows whether the driver was paying attention during the instruction phase of the test. It does not take into account that folks on the side of the road have many distractions and are likely extremely nervous when the instructions are given to them. While the officer may be used to standing on the side of the road with emergency lights flashing and traffic driving by, the driver probably is not, but this is not factored into the grading. It is also important to note that the Olathe police officer will typically demonstrate only 3 steps, not the 9 that are required.

8. Observing whether the driver makes an "improper turn." This criteria purports to demonstrate both the ability to remember the directions given and the coordination to make the "proper" turn, which is a very unnatural manuever. Olathe police vary as to the way they instruct the turn to be performed, with some asking for a "series of small steps" and others asking for a "clockwise pivot." In any case, the officer will not take into account the driver's natural coordination and ability when grading this portion of the test.

Grading Criteria:

The NHTSA instructs police officers to "classify the suspect as impaired" if he exhibits two or more distinct clues on this test or if he fails to complete it. Even if the "test" conditions are ideal, the officer's instructions perfect, and his grading accurate and fair, he will only be "able to correctly classify about 68% of [his] suspects."
That, of course, means that even the most competent officers routinely flunk 32% of the sober people who submit to the exercise. When we consider that most of these officers vary their instructions and disregard defective conditions, these officers will almost never accurately classify the unfortunate motorists they stop.

The DUI Process in Olathe

A DUI charge in Olathe will have two distinct parts:

• the administrative hearing portion, where your license may be suspended, from a minimum of 30 days to the maximum of a permanent revocation of your driving privileges
• the criminal portion, which will proceed in either Olathe Municipal Court or Johnson County District Court. In this proceeding, the City of Olathe and/or State of Kansas may seek incarceration for up to one year, inpatient or outpatient treatment, probation, and/or a fine of $500-2500.  Post release supervision may also be required.
  

In the administrative hearing on an Olathe (driving under the influence) DUI charge, the burden of proof shifts to the accused to show that he or she was not driving under the influence, making it extremely difficult to avoid the suspension of your drivers license. This amounts to guilty until proven innocent and completely contradicts centuries of law in this country requiring the prosecution to prove the elements of a driving under the influence charge beyond a reasonable doubt.  Making matters even worse, the hearing is conducted by a "hearing officer" sent by the Kansas Department of Revenue - the same agency that is trying to swipe your license!

The factors that will be considered at the administrative hearing triggered by your Olathe DUI

If you took the test: When you take and fail an Intoxilyzer 5000/8000 test, you will have the burden at the administrative hearing to prove (1) that the officer did not have reasonable cause to believe that you were operating a vehicle while under the influence of alcohol and/or drugs; (2) that you were not arrested or were improperly arrested; (3) that you were not given the implied consent notice; or (4) that the testing procedure was done incorrectly. Those are the only issues at the hearing and if you can't prove it, you lose your license.

 When you refuse to take the test: you must show at the administrative hearing that (1) the officer did not have reasonable grounds to believe that you were operating the vehicle while under the influence; that (2) you were not arrested or were improperly arrested; that (3) you were not given the implied consent notice; or that (4) you did not refuse the test. Those are the only issues
at the hearing and if you can't prove it, you lose your license.

If you were involved in an accident: When you have been in an accident and there is an indication that alcohol was involved, even if you only had a teaspoon of beer, the only issues that will be addressed will be whether there was implied consent and whether the tests were done correctly. All other issues will be the same.

If you were under the age of 21 and took the test: Any person under the age of 21 who operates a motor vehicle with an alcohol concentration of .02 or greater is subject to having his or her driving privileges suspended. The issues at the hearing are the same as those for the over-21's that took the test. If the underage person tested between .02 and .08 the suspension period is 30 days followed by 330 days of restrictions on the first occurrence and a one year suspension on the second. If the underage person tests between a .08 and .149, the suspension period is one year. If the test result is .150 or higher, the license is suspended for one year followed by one year of restriction to only operating a motor vehicle equipped with an ignition interlock device.

Suspensions That Can Result from a DUI in Olathe:

TEST FAILURE

1st time Intoxilyzer 5000/8000 test failure 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 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 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 of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.

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

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

5th test failure: 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

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

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

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

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

5th Time Refusal: 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.

Possible remedies if you lose at the administrative hearing:

Kansas does not grant "hardship" license - if your license is suspended, they do not care how you will get to work or how you'll take care of your kids.  Your only option is to appeal the result to the District Court, when an actual judge will review the case and the issues that were brought up at the administrative hearing.

Possible Criminal Penalties from an Olathe DUI Conviction

1st Conviction: Counts as a Class B Misdemeanor

Jail: a 48 consecutive hour sentence is the minimum mandated by law, with up to a maximum six (6) months imprisonment required. Some jurisdictions may let a
defendant spend the mandatory 48 hours jail time in a residential treatment program like the CWIPS program (Community Weekend Intervention Program), which is often preferable to jail.

Fine: $500.00 to $1,000.00, plus there is a $150.00 ADSAP fee that goes to the state. Court costs may also be between $10.00 and $150.00 and will be assessed to the defendant.

Probation (if granted): Probation is an option only after you have served at least 48 hours. The terms of probation are just like the terms of diversion: no drinking, do not break the law, go to alcohol school, etc. In addition, in the court's discretion, the court may order that the defendant's car be impounded.

Driver's License Suspension: A criminal conviction of a first time DUI for a person who gave a test result under a .150 results in a 30 day suspension of driving privileges and 330 day restriction to driving only to and from work, in the course of employment, or to school. If the person submitted a test of .150 or greater, or refused to take a test, his or her driving privileges are to be suspended for one year, followed by one year of only operating a vehicle equipped with an ignition interlock
device. There are no hardships or exemptions available. This suspension goes on the person's driving record.

2nd Conviction: Counts as a Class A Misdemeanor

Jail: a minimum of 90 days up to a maximum of one year. A skilled Olathe DUI attorney may be able to get 88 of the 90 days served in a house arrest program which allows the defendant to work and live at home with a monitoring machine.

Fine: $1,000.00 to $1,500.00, plus the $150.00 ADSAP fee, and court costs of between $10.00 and $100.00 are assessed to the defendant.

Probation: A person must serve a mandatory minimum of five days incarceration before they're eligible for probation. Two of the days of imprisonment must be consecutively served in a jail facility. The other three days may be served in a work release program in which the inmate returns to work each night, or on house arrest. In some jurisdictions the two days of jail time can be served in an inpatient alcohol treatment facility like the CWIPS program (Community Weekend Intervention Program). The court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years with associated costs paid by the defendant.

Driver's License Suspension: If a defendant tests at less than .150, a criminal conviction of a second time DUI results in a one year suspension of driving privileges, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock. If the test is .150 or higher, or the person refuses, a conviction for DUI will mean that their license is suspended for one year followed by 2 years of driving only a vehicle with an ignition interlock device. There is no hardship or exemptions available. This suspension goes on the person's driving record and is a separate proceeding from the administrative hearing.

3rd Conviction: Counts as a felony. Third time DUI charges will also be transferred from the City of Olathe Municipal Court to Johnson County District Court.

Jail: a minimum of 90 days and up to a maximum of one year.

Fine: $1,500.00 up to $2,500.00, plus the ADSAP fee of $150.00, court costs of between $10.00 to $100.00.

Probation (if granted): No person can get probation until after he has served at least 90 days in custody. Eighty-eight (88) of the days of incarceration may be served in a work release program where the inmate comes back to the jail each night after work, or on house arrest. Inpatient treatment in lieu of jail time is generally not available for a third time offender. In addition, as of July 1, 2007 the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted.

Driver's License Suspension: Upon a third criminal conviction for DUI, a person who took a test and was under a .150 will be suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device (you have to blow into it before your car will start). If the person tested at a .150 or higher, or refused a test, he will be suspended for one to three years, followed by a three year restriction to only driving with an ignition interlock device.

4th Conviction or higher: Counts as a felony. Fourth and higher DUI charges will also be transferred from the City of Olathe Municipal Court to Johnson County District Court.

Jail: After a minimum of 90 days in jail and up to a maximum of one year.

Fine: $2,500.00, plus the ADSAP fee of $150.00, court costs of between $10.00 to $100.00.

Probation (if granted): After the person has served the term of incarceration imposed by the court (at least 90 days), the individual is released to the Kansas Department of Corrections for a one year post-release supervision period which will include mandatory drug and alcohol treatment. Every vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with the ignition interlock or impoundment must be paid by the person convicted.

Driver's License Suspension: Upon a fourth or higher conviction for DUI, for those people who took a test and were under a .150, the defendant's driver's license is
suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device. Persons who tested at .150 or higher, or who refused a test, will be suspended for one year to lifetime.

To learn more about the Kansas DUI laws, go to http://www.ksdot.org/burTrafficSaf/alcdriv/DUILaws.asp

To see the Kansas Department of Transportation's brochure on DUI law, go to www.ksdot.org/burTrafficSaf/brochures/pdf/duibrochure08.pdf

For experienced and aggressive representation in the defense of a DUI charge in Olathe, 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.