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Important info about Olathe driving under the influence (DUI/DWI) charges and hiring an experienced Olathe DUI attorney/law firm:1. Almost every Olathe DUI case will involve 2 separate components: (1) the criminal case in Olathe Municipal Court; and (2) a driver's license hearing with the Kansas Department of Revenue. You can win one, and lose the other, win both, or lose both. You have the right to be represented by an Olathe DUI lawyer in both proceedings. 2. In nearly every Olathe DUI case, you only have 10 business days from the date of your arrest to request an administrative hearing with the Kansas Department of Revenue, or your license will automatically be suspended for a period from 30 days to life, depending on your driving record. One of our law office's experienced DUI attorneys can temporarily or permanently preserve your driving privileges by requesting a hearing and then representing you at this hearing. 3. The penalties for a 1st time DUI conviction in Olathe of Johnson County include up to 6 months in the county jail, a $1000 fine, a 12 month probation, court ordered classes and treatment, and hundreds of dollars in court costs and monitoring fees. For a 2nd time Olathe DUI conviction, you are looking at up to 1 year in jail, a $1500 fine, and the same probation & treatment requirements. 3rd and subsequent DUI charges will be sent to Johnson County District Court for be refiled as felonies, where the potential and actual penalties are much harsher. Hiring a knowledgeable DUI attorney can result in significantly lower penalties. 4. There are 3 possible outcomes for most Olathe DUI charges: (1) Acquittal/Dismissal of an Olathe DUI charge : Once a DUI case has been charged in Olathe, the only way to truly clear your record is to fight the case and secure an acquittal or dismissal of the charge. This is done through trial or through pre-trial practice and procedures. Our lawyers have experience taking Olathe DUI cases to trial in Olathe Municipal Court and Johnson County District Court; (2) Olathe DUI diversion : A DUI diversion in Olathe is essentially a contract between the driver and the prosecutor's office in which the driver agrees to follow the diversion terms (usually ~$1000 in fines/fees/costs, 12 months of monitoring, a drug and alcohol evaluation, called an ADSAP, and treatment/classes) and in exchange, the prosecutor agrees to "dismiss" the charge at the end of a 12 month period; (3) Conviction of the Olathe DUI charge : A conviction is either the result of pleaing guilty or taking a case to trial and being found guilty by the Judge. The penalties for a conviction will depend on the circumstances surrounding a case. 5. The costs to plead guilty to an Olathe DUI charge stretch far beyond the fines and costs imposed by the court and your attorney's fees and can easily exceed $10,000 over the years. A driver's license suspension from an Olathe DUI can lead to missed work which could cost you your job or hamper your attempts at a promotion. A driver's license suspension usually also includes an ignition interlock requirement which will cost thousands of dollars to comply with. A conviction could cost you your job if you are a teacher or other professional whose professional license can be revoked upon a conviction. Finally, an Olathe DUI conviction will almost always lead to hundreds or thousands of dollars in increased insurance premiums. Important Olathe DUI/DWI terms:.08 – 08 refers to the legal limit of blood alcohol in Kansas. If you register a blood, breath, or urine sample showing a blood alcohol content of .08 or more, then this is presumptive evidence that you were too drunk to drive and you will likely be found guilty at trial if this test is admitted into evidence.48 hours – This refers to the 48 hours of custody required a Johnson County DUI conviction. KSA 8-1567 mandates that at least 48 hours be served before probation on every 1st and 2nd time DUI conviction. Acquittal - A decision by a judge or jury that a defendant in a criminal case is not guilty of a crime. An acquittal is not a finding of innocence; it is simply a conclusion that the prosecution has not proved its case beyond a reasonable doubt. If a defendant is acquitted, they can not be tried again for the same crime. Administrative Hearing – In the terms of a Johnson County DUI charge, an administrative hearing is a hearing with the Kansas Department of Revenue to determine whether a driver’s license should be suspended, and for how long. These hearings are held in front of a hearing officer is assigned by the same Department of Revenue that has proposed a suspension of your license. Breath test - A breath test is done an a instrument designed to determine the amount of alcohol in a person’s breath, and consequently, in a person’s blood. In Kansas, the breathalyzer that is used is the Intoxilyzer 8000. Breathalyzer – A breathalyzer is a instrument designed to determine the amount of alcohol in a person’s breath, and consequently, in a person’s blood. In Kansas, the breathalyzer that is used is the Intoxilyzer 8000. Conviction - A finding by a judge or jury that the defendant is guilty of a crime. Additionally, KSA 8-1567 mandates that DUI diversion agreements be counted as convictions for subsequent DUI charges, meaning that those who have a diversion on their record will be considered second or subsequent time offenders if they’re ever charged with DUI again. CWIPS – CWIPS is an abbreviation for the Community Weekend Intervention Program. CWIPS is a program that allows a DUI defendant to serve their 48 hours in custody in a dorm type facility, rather than the Johnson County jail. The CWIPS program is preferable to jail because you are allowed to take required classes during the 48 hours and you are only in custody with other DUI defendants, not the “general” population at the jail. Further, the CWIPS facility is much different from a jail. You’re not allowed to come and go as you please, but it is not nearly as controlled as a jail. DC-27 – A DC-27 is a carbon copy of a form a police officer sends into the State, usually after he has taken your actual driver’s license. You must send a request for an administrative hearing to the Kansas Department of Revenue within 10 days of the day you received the DC-27. In this request, you need to specify that your hearing be in person before a representative of the Department of Revenue. Failure to request an in-person hearing will result in the hearing being held over the telephone. If a driver does not formally request an administrative hearing within 10 days of being served with a DC27 form, then their license will automatically be suspended. DC-70 – A DC-70 is a form which contains advisories concerning implied consent in Kansas. A police officer is required to read the information on a DC-70 to a driver before asking him to take a blood, breath, or urine test. In an officer fails to read the implied consent advisories on a DC-70, it may be ground for suppression of the breath test. Discovery - A formal investigation governed by court rules -- that is conducted before trial. Discovery allows one party to question other parties, and sometimes witnesses. It also allows one party to force the others to produce requested documents or other physical evidence. Discovery is present in Johnson County DUI cases, in which by law the prosecutor must turn over to the defense any witness statements and any evidence that might tend to exonerate the defendant. See Brady v. Maryland, 373 U.S. 83 (1963). Depending on the rules of the court, the defendant may also be obliged to share evidence with the prosecutor. District Court – In Kansas, a District Court is the highest level of Court in each county. The District Court has jurisdiction over both misdemeanors and felonies. Diversion – KSA 22-2906 defines a diversion as: referral of a defendant in a criminal case to a supervised performance program prior to adjudication. In reality, a Olathe DUI diversion is a contract between a defendant and the prosecutor where the defendant agrees to do whatever the prosecutor tells them to do for a 12 month period and in exchange, the prosecutor agrees to “dismiss” the DUI charge if all the requirements are met. Driver’s License Suspension – This refers to an action taken by the state to suspend someone’s driving privileges for a specified length of time. License Suspension No person shall operate or attempt to operate any vehicle within this state while: Licenses required; city license, when; appeal from denial of license; vehicles registered under temporary permit; penalty; motorized bicycle driver's license. (a) No person, except those expressly exempted, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver's license. No person shall receive a driver's license unless and until such person surrenders or with the approval of the division, lists to the division all valid licenses in such person's possession issued to such person by any other jurisdiction. All surrendered licenses or the information listed on foreign licenses shall be returned by the division to the issuing department, together with information that the licensee is now licensed in a new jurisdiction. No person shall be permitted to have more than one valid license at any time Driving Under the Influence – In Kansas, driving under the influence (DUI) is defined by KSA 8-1567 which defines DUI as follows: (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. Driving While Suspended – KSA 8-235 defines driving while suspended (DWS) in Kansas as follows: Highway Patrol – The Kansas Highway Patrol is a statewide law enforcement agency with jurisdiction throughout the State of Kansas. Their primary task is to enforce road and highway safety, but they are also tasked with enforcing all laws in the State of Kansas. House Arrest – The Johnson County House Arrest Department is located within the Adult Residential Center, and operates on a 24-hour basis. House Arrest involves a philosophy of strictly limiting an offender's movement within the community through electronic monitoring. Each assigned offender has electronic monitoring equipment attached to his/her telephone line, which verifies the offender is in his/her residence through photographic and voice response. In addition, each electronic monitoring unit contains a breathalyzer, allowing the House Arrest department to monitor the offender for consumption of alcohol while in his/her residence. Ignition Interlock - An ignition interlock device is an in-car alcohol breath screening device that prevents a vehicle from starting if it detects a blood alcohol concentration (BAC) over a pre-set limit. The device is located inside the vehicle, near the driver’s seat, and is connected to the engine’s ignition system. Only approved ignition interlock devices can be installed. To see a list of those approved for installation in Kansas click here. If you received an ignition interlock restriction notice, you need to take that letter to the service provider when ready to have the device installed on your vehicle. If you do not have an ignition interlock restriction notice, you need to submit a request to Driver Control Bureau, P.O. Box 12021, Topeka, KS 66612-2021 to get approval to have an ignition interlock device installed. In-Car camera – The in-car camera refers to a camera on the dash of most law enforcement patrol cars in Johnson County. This camera usually begins recording as soon as the car’s emergency lights are activated, but the officer can activate it manually as well. The attorneys in this office request the in-car video in all of our Johnson County DUI cases. Intoxilyzer 8000 – The Intoxilyzer 8000 is the breath test machine used by all Johnson County law enforcement agencies. The Intoxilyzer 8000 is manufactured by CMI, Inc. a company which refuses to disclose information regarding how the machine works, citing “trade secrets.” The underlying physical principle of the Intoxilyzer 8000 is known as "Henry's Law," which states that the concentration of a volatile chemical in vapor above a solution is proportional to the concentration of the chemical in the solution. This is true in the laboratory, but in humans, the proportions can vary by as much as 50%. This means that the Intoxilyzer 8000 can overstate your blood alcohol by as much as 50%! As Drs. Stefan Rose and Kenneth Furton have written, "Henry's Law does not apply in the lungs. In order for Henry's Law to apply, three conditions must be met. One, the solution must be in a closed system, like a sealed bottle. The lungs are open, not closed. Two, the solution must be kept at a known, constant temperature. The lung temperature is never known, and the temperature is always changing. And three, the pressure must be kept constant. The lungs are always changing pressure, decreasing pressure to inhale and increasing pressure to exhale. Without all three conditions present, it is not possible for equilibrium to occur, and Henry's Law does not apply." The Intoxilyzer 8000 operates on a principle known as the "Lambert-Beer Law," which states that the amount of infrared light absorbed by your breath is proportional to the amount of alcohol in the sample. Think of it like the way in which fog will block your car's headlights on a damp night. In short, the more alcohol there is, the less infrared light that gets through the chamber to the detector. However, there are other compounds, called "interferents," which can also block the infrared. And the Intoxilyzer 8000 cannot reliably tell them all apart!! When the Intoxilyzer is calibrated, if the temperature of the testing solution is off by as little as one-fifth of one degree (.20), the calibration is not considered accurate. Human body temperatures may vary as much as three full degrees-- depending on health, physical activity or even the hour of the day! If you have a slight fever and your body temperature is elevated by only 1 degree Centigrade (1.8 degrees Fahrenheit), your apparent blood alcohol will be artificially inflated by approximately seven percent. (Isn't it interesting how these errors always work against you and never for you?) The Intoxilyzer 8000 is based upon the Zilog Z-80 microprocessor. This same chip was the brains of the Tandy TRS-80, which was the hit of the home computer industry.....in 1977! The protocol for the Intoxilyzer 8000 in Kansas requires only that you blow 1.1 liters of breath. The average adult has a "vital capacity" (the amount he or she can forcibly exhale in one breath) of between three and four liters. The police will urge you to keep blowing your entire breath into the machine. However, such a long breath will artificially increase the apparent amount of alcohol in your breath by skewing the sample toward your "deep lung air," where the alcohol is more highly concentrated. If you only blow half of your breath, you will give an adequate sample, which will be up to 30% less than the sample that the police want you to give. Three or four deep breaths before blowing into the Intoxilyzer will cool your lungs and fill them with fresh air. This sort of hyperventilation may lower your breath alcohol by as much as 55%, without violating the protocols of the test. Additionally, it appears that the saliva generated by repeatedly putting one’s mouth on the mouthpiece serves to raise a driver’s sample significantly. Maximum Sentence - This refers to the maximum sentence allowed by statute for a Johnson County DUI conviction. A court is never allowed to impose a sentence beyond the statutory maximums called for in KSA 8-1567. Minimum Sentence – This refers to the minimum sentence allowed by statute for a Johnson County DUI conviction. A court is never allowed to impose a sentence beyond the statutory minimums called for in KSA 8-1567. Municipal Court – In Kansas, incorporated cities may set up a municipal court. These courts have jurisdiction over misdemeanor charges and civil infractions. Municipal Courts also may utilize private house arrest agencies who operatie under different rules. For instance, in Olathe Municipal Court, a company called Midwest Justice may serve as a house arrest provider. This company utilizes GPS house arrest units which our past clients have told us are preferable to other house arrest methods. Pink sheet – This refers to the DC-27 form. A DC-27 is a carbon copy of a form a police officer sends into the State, usually after he has taken your actual driver’s license. You must send a request for an administrative hearing to the Kansas Department of Revenue within 10 days of the day you received the DC-27. In this request, you need to specify that your hearing be in person before a representative of the Department of Revenue. Failure to request an in-person hearing will result in the hearing being held over the telephone. Plea – A plea is a formal statement of guilt or innocence. Potential pleas are “guilty,” “not guilty,” and “no contest.” When discussing a plea on this website, this most often refers to a guilty plea where a prosecutor agrees to recommend a previously agreed upon sentence to a court in exchange for the defendant entering a plea of guilty. While a Judge or Court is not legally bound by a plea agreement and can sentence a defendant to any term authorized by the statute, plea agreements are usually followed by the Court. The advantage of a plea agreement is that a defendant can limit their exposure at sentencing. The disadvantage of a plea agreement is that a defendant is giving up a number of Constitutional Rights by entering the plea, including the right to trial, the right to appeal, and other important rights. Presentence Investigation - The PSI unit is responsible for the preparation of misdemeanor and felony pre-sentence investigation reports as ordered by the Johnson County District Court and in accordance with the Kansas Sentencing Guidelines (available on the Kansas Sentencing Commission's website). These reports include: * a complete compilation of the defendant’s criminal history, * an assessment of appropriate conditions should the defendant be placed on probation supervision. * comments from victims concerning sentencing and restitution and Presumptive DUI – This is a DUI simply because a person registers a breath, blood, or urine test over .08. The prosecution does not have to present any evidence of bad driving, they only need to show that there was a valid test within 2 hours of driving. Probation – For all practical purposes, probation is a sentence ordered by a judge, usually instead of, but sometimes in addition to, serving time in jail. It allows the convicted person to live in the community for a specified period of time, sometimes under the supervision of a probation officer. The real essence of probation is the continued power of the Court over the defendant. Without probation, the defendant might be sentenced to a maximum jail term of one year on a 2nd time Johnson County DUI misdemeanor. From then on, the defendant's only obligation to the criminal justice system is to serve his year. When a probationer gets out, he is free of all obligations, conditions, and supervision. Courts don't like that, so even if the judge is determined to send the accused to jail, the judge usually prefers a probationary sentence so that if the defendant misbehaves in any way, they can be put back in jail. SR22 - A SR-22 is a form which must be filed by an insurance company stating that auto liability insurance is in effect for a particular Kansas driver. A SR-22 is required when insurance is provided to an individual who was in an accident or was convicted of a traffic offense and was unable to show financial responsibility. Each state has different variations of this form and requirements. Work release - The Johnson County Work Release program opened in October 2007. The target population for this program is fourth time or greater DUI offenders. These offenders ordered to the program are serving their sentence while being allowed to maintain their employment, pay taxes and pay on their program and court financial obligations. The program provides high accountability for the offenders including their time spent in the community at their place of employment. Work Release staff regularly conduct compliance checks and maintain contact with employers to ensure the offenders are complying with the rules of the program on a consistent basis. Even though the target audience is 4th and higher offenders, we have had success with securing work release for certain 3rd time offenders when the circumstances warrant it. | Our law office's attorneys provide excellent driving under the influence (DUI/DWI) representation for all Olathe and Johnson County DUI charges |
Recent NewsResults involve unique clients with unique circumstances and should not be construed as a promise of similar results in your case) |
The most important thing to remember in any Olathe DUI case is that in almost every instance you only have 10 business days from the date of your arrest to request an Administrative Hearing with the Kansas Department of Revenue or your license will be automatically suspended for a period between 30 days and life , with no "hardship licenses," being granted. This deadline is an ABSOLUTE deadline. If your request is even a day late, the Dept. of Revenue will automatically suspend your license whether you're guilty or not. This makes it extremely important to contact an Olathe DUI lawyer immediately.
It is also important to understand that no DUI lawyer can guarantee results and that our past successes are not an indication that we can get you the same type of results. Every case is unique and a review by a good DUI attorney is essential in judging the merits of your case. Further, even if you have similar or better circumstances when compared to a case we resolved successfully, different judges and juries could leave you with a different outcome.
Before you decide that there are no good options in you Olathe DUI case, call us. We know the Olathe DUI process very well and we can help you whether you have a good case or a bad case. The first way we can help is by representing you at trial. If you don't have a good case for trial or don't want to go to trial, we have the ability to petition the court for resolutions which allow our client to attend the CWIPS class instead of going to jail. We may also be able to persuade the Court to order house arrest for part of a jail sentence.
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 work hard on your case.
If you’ve been charged with driving under the influence (DUI/DWI) in Olathe or elsewhere in Johnson County, there are a number of possible outcomes:
1. Dismissal by the Olathe Municipal Court or Johnson County District Court Judge – DUI cases are rarely dismissed in Olathe, Johnson County, or any Kansas court. This is because the Kansas DUI laws specifically prohibits a prosecutor's dismissal of a DUI/DWI charge without the Court’s consent. What this means is that a prosecutor cannot simply review a case and dismiss it, a prosecutor cannot dismiss a case because the defense attorney is a golf partner, and a prosecutor can't dismiss a DUI case because they feel the driver was treated unfairly. To dismiss a Johnson County DUI case, the prosecutor must request permission to do so from the judge.
The lawyers in our office have successfully worked to have DUI cases dismissed in Johnson County courts, but please understand that this is an extremely rare outcome.
2. A diversion agreement – An Olathe 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.
The primary Kansas DUI statute, KSA 8-1567, only allows a diversion one time in any driver's life, and sets up a number of requirements and conditions for diversion contracts to be offered. Our DUI attorneys have been successful in securing diversion agreement for clients with prior DUI diversions or convictions, but this is a rare case and should not be expected.
3. An advantageous guilty plea in Olathe Municipal Court or Johnson County District Court – If you do not have a valid defense and are either not eligible or are not approved for diversion, a guilty plea for your Olathe 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 Olathe DUI charges also may involve the dismissal of companion charges, or amendments to lesser offenses. While Olathe and Johnson County judges are not required to follow plea agreements, a guilty plea is often the best option for reducing your exposure to a Olathe DUI charge when a diversion is not available.
4. Acquittal through trial in Olathe Municipal Court or Johnson County District Court – To be acquitted at trial, you will either go to trial in front of a judge Olathe 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.
If you have been charged with DUI in Olathe or elsewhere in Johnson County, the only true way to completely exonerate yourself is to take the case to trial and secure an acquittal. Even successfully completed DUI diversions can be found in some high level background checks.
5. Dismissal due to a Motion to Suppress filed in Johnson County District Court or Olathe Municipal Court – One of the best ways to secure an acquittal is through a Motion to Suppress filed in either Johnson County District Court or Olathe Municipal Court. Such a motion is a formal request to the Court moving to suppress certain evidence that was gathered due to a Constitutional violation or a procedural violation.
In the terms of a Olathe DUI charge, such a Motion might be filed due to an illegal stop, an arrest made without probable cause, or another Constitutional violation. 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.
A Motion to Suppress might also be filed because guidelines or procedures required for a valid Olathe Intoxilyzer 8000 test were not complied with. If the breath test is ruled inadmissible, then your Johnson County or Olathe DUI case’s chances at trial would be greatly improved.
6. Conviction through trial in Olathe Municipal Court or Johnson County District Court - If you choose to take your case to trial in Olathe 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 Olathe DUI conviction will depend on the judge who will make a determination based on the circumstances surrounding your case.
Regardless of which path you choose to take, the attorneys and staff of our law office will be happy to represent you in your Olathe DUI case. Our representation typically starts with a free consultation in our office to discuss your DUI case. At that meeting we will discuss the details of your case as you remember then and along with the paperwork you have, including the DC-27 that the Olathe officers gave you when they took your license. We will also draw up a free agreement for you to take home and review.
The first step in our actual representation almost always involves requesting an administrative hearing with the Kansas Department of Revenue that will allow you to at least temporarily avoid a driver’s license suspension. We will also request the police reports and in-car videos from the Olathe Police Department and we will send you copies of these once we receive them.
Once we have all of the available evidence, we will analyze your case taking into account all relevant DUI case law, your circumstances, your expectations for the case, our experience in with similar DUI cases in Olathe Municipal Court, and other factors. Our case analysis will include a recommendation for a case resolution. With this information, you will be able to direct us on how you wish to resolve your case.
If you took the test: When you take and fail an Intoxilyzer 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.
The lawyers in this office are not afraid to take cases to trial in front of a judge or jury. We take all cases with the assumption that the case will go to trial and we evaluate them accordingly, constantly looking for facts or circumstances which could help secure an acquittal. A DUI attorney who does not take your case with the assumption that it will or may go to trial may not properly evaluate all of the evidence and may miss important facts which could lead to an acquittal. In our 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 are going to bully them around. Our DUI attorneys cannot guarantee results , but we can confidently tell you that we will diligently pursue your interests and we will not be afraid to take the case to trial should your wish to do so.
One technique we often utilize to secure an acquittal is called a Motion to Suppress. This tool is a legal document which seeks an Order from the Olathe Municipal Judge stating that certain evidence is inadmissible becuase it was gathered in violation of our client's Constitutional rights. These are often filed as a result of an illegal stop, an improper arrest, or improper evidence gathering methods. An example of one such Motion, which resulted in the Court ordering that all evidence gathered after our client was isolated with the officer was inadmissible is available by clicking on the following links: Page 1 - Page 2 - Page 3 - Page 4 - Page 5 - Page 6 - Page 7 -Page 8
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.
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.
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.
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.
The Law Offices of Jeremiah Johnson, LLC
104 E. Poplar
Olathe, KS 66061
Phone:(866) 656-1268
Fax: (913) 764-5012
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The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. The choice of a lawyer is an important one and should not be based solely on advertisements, webpages, or other public materials. Copyright © 2010 by The Law Offices of Jeremiah Johnson, LLC. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. | |
