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Olathe DUI

Our Olathe law office's attorneys/lawyers handle all driving under the influence cases in Olathe Municipal Court and Johnson County District Court

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Every Olathe drunk driving (DUI/DWI) case is an extremely serious charge calling for legal representation by an experienced Olathe driving under the influence attorney/lawyer who can challenge every part of the prosecution's case to represent your interests and protect your rights. 

Our Olathe law office's lawyer has represented hundreds of drivers charged with driving under the influence (DUI) in Olathe Municipal Court, Johnson County District Court, and throughout the courts of Johnson County.  Whether you're looking for a DUI attorney to take your Olathe DUI case to trial, a lawyer to negotiate an advantageous plea agreement with the Olathe prosecutor, or an attorney to arrange a diversion agreement, we have an experienced DUI attorney who may be able to help you achieve the desired results from your Olathe or Johnson County DUI arrest.  Please call us at (913)764-5010 to set up a no-cost initial consultation with one of our DUI attorneys, or simply use the form at the top of our home page to send an inquiry.

Olathe driving under the influence charges are governed by Olathe and Kansas DUI laws (primarily KSA 8-1567) that call for jail time for all DUI convictions, even for first time offenders . Additionally, a driver's license suspension is levied in almost every Olathe & Johnson County DUI case.  As a result, a DUI charge in Olathe will put every driver's freedom, money, license, employment, and reputation in serious jeopardy.

The Olathe Municipal Court is one of the largest and most professionally run courts in the State of Kansas.  The Olathe Court processes thousands of DUI, misdemeanor, and traffic cases each year and employs 2 experienced and knowledgeable judges.  In addition, the Olathe Prosecutor's Office is made up of 4 seasoned, knowledgeable, and tough prosecutors who are supported by a significant number of highly trained staff members.  

If you have been arrested or charged with DUI/DWI in Olathe or elsewhere in Johnson County, Kansas, you want a lawyer with extensive knowledge of the drunk driving laws in Kansas and experience practicing in Olathe Municipal Court. You need an attorney familiar with the Olathe, Kansas DUI laws who understands 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 can effectively represent you at a driver's license suspension or driver's license revocation proceeding.  You want an attorney who will aggressively evaluate every aspect of your Olathe DUI case to make sure that your rights are protected.

If you are facing an Olathe DUI charge, you also want an attorney who you can communicate with and who will pick up the phone if you have questions.  You want a DUI lawyer who will treat you with the respect you deserve, not simply as another "file."  The lawyers and staff in our office strive to treat every Olathe DUI client with respect and compassion throughout our representation of them.  We understand that the vast majority of drivers charged with DUI in Olathe are good people who simply made a mistake and did not intend to drive while under the influence.

At the Law Offices of Jeremiah Johnson, PA, we represent men and women throughout Olathe and Johnson County in all matters related to or arising from an arrest for or charge of drinking and driving, including criminal charges in Johnson County District Court and Olathe Municipal Court, as well as administrative hearings with the Kansas Department of Revenue. Contact one of our Olathe DUI attorneys to schedule a free initial consultation.

The most important thing to remember in any Olathe DUI case is that in almost every instance you only have 14 calendar days (unless the 14th day falls on a holiday or weekend) 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 Department 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, then 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, PA we still believe that everyone is innocent until proven guilty and that being charged with a DUI is not even 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.

How do drinking and driving (DUI) charges in Olathe & Johnson County develop in court and with the Kansas Department of Revenue?

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 prohibit 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 whether it is because the defense attorney is a golf partner or 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 an 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 in 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, so acquittal is the only way to completely clear your name from an Olathe or Johnson County DUI charge.

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 an 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 agrees 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 original DUI charge.  The penalties associated with an 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 them and the details of your case according to 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 fee 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.  This hearing after your Olathe or Johnson County DUI arrest 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.

Factors that will be considered at a Kansas Department of Revenue  Administrative Driver's License Hearing for your Johnson County or Olathe DUI/DWI case:

If you took the breathalyzer 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 considered at the hearing, and if you can't prove any of these issues, then you lose your license.

When you refuse to take the breathalyzer test: When you refuse to take an Intoxilyzer 8000 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; (2) you were not arrested or were improperly arrested; (3) you were not given the implied consent notice; or (4) you did not refuse the test. Those are the only issues considered
at the hearing, and if you can't prove any of these issues, then 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 drivers who took the test. If the underage person tested between .02 and .08, then 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, then the suspension period is one year. If the test result is .150 or higher, then the license is suspended for one year followed by one year of restriction to only operate a motor vehicle equipped with an ignition interlock device.

Our Olathe DUI lawyers will take your Olathe DUI case to trial when appropriate and will work to limit your exposure when appropriate. 

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, then 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 be 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

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

While investigating whether a driver is driving under the influence (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 consecutive 48-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 and 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 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 the 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 exemption 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 and 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 and 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, those people who took a test and were under a .150 will have their driver's license 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"cop

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.

Development and Validation of the SFST Battery

During the late 1960s and early 1970s more than 50,000 people lost their lives each year on our nation's public roads; more than half of the fatalities involved an alcohol-impaired driver. Traffic safety has improved considerably since that time: the annual death toll has declined to about 40,000, even though the numbers of drivers, vehicles, and miles driven all have greatly increased. When miles traveled are considered, the likelihood of being killed in traffic in 1966 was more than three times what it is today.

Research sponsored by the National Highway Traffic Safety Administration (NHTSA) has contributed to the improved condition, in part, by providing law enforcement officers with useful and scientifically valid information and training materials to assist in the enforcement of drinking and driving laws. Beginning in 1975, NHTSA sponsored research that led to the development of a Driving While Impaired (DWI) 1 detection guide that listed 20 driving cues and the probabilities that a driver exhibiting a cue would have a BAC of at least 0.10 percent (Harris et al., 1980; Harris, 1980). A similar study was conducted more recently that identified 24 driving cues that are predictive of DWI at the 0.08 level (Stuster, 1997); the latter study also identified ten post-stop cues with probabilities of DWI of at least 90 percent. NHTSA previously sponsored research that led to the development of a motorcycle DWI detection guide and training program (Stuster, 1993). NHTSA's DWI training materials, based on the results of these studies, have exposed the current generation of law enforcement officers in the U.S. to information critical to DWI enforcement by providing a systematic, scientifically valid, and defensible approach to on-the-road DWI detection.

At the same time NHTSA was providing officers with information concerning the driving behaviors that are the most predictive of impairment, the agency also sponsored research that led to the development of a standardized battery of tests for officers to administer to assess driver impairment after an enforcement stop has been made. Marcelline Burns and Herbert Moskowitz conducted laboratory evaluations of several of the tests that were most frequently-used by law enforcement officers at the time (Burns and Moskowitz, 1977). In addition to a variety of customary roadside tests (e.g., finger-to-nose, maze tracing, backward counting), the researchers evaluated measures of an autonomic reaction to central nervous system depressants, known as Horizontal Gaze Nystagmus. Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. Aschan (1958) described studies that linked various forms of nystagmus to BAC, and Wilkinson, Kime, and Purnell (1974) reported consistent changes in Horizontal Gaze Nystagmus with increasing doses of alcohol. At the time Burns and Moskowitz were conducting their seminal research for NHTSA, Horizontal Gaze Nystagmus recently had been found to reliably predict BACs in a study conducted in Finland (Pentilla, Tenhu, and Kataja, 1974). Further, Lehti (1976) had just calculated a strong correlation between BAC and the onset of nystagmus.

All of the field sobriety tests evaluated by Burns and Moskowitz were found to be sensitive to BAC in varying degrees, at least under laboratory conditions. In addition, all of the tests showed a consistent increase in correlations with increasing BACs. Statistical analyses found the Horizontal Gaze Nystagmus test to be the most predictive of the individual measures. However, the combined scores of two of the tests provided a slightly higher correlation than the Horizontal Gaze Nystagmus test by itself (Burns and Moskowitz, 1977); three tests were recommended to become the components of the SFST battery.

NHTSA immediately sponsored a subsequent study to standardize the test administration and scoring procedures and conduct further laboratory and field evaluations of the new battery of three tests. The researchers found that law enforcement officers tended to increase their arrest rates and were more effective in estimating the BACs of stopped drivers after they had been trained in the administration and scoring of the Standardized Field Sobriety Test battery. The results of the study were documented in the technical report, Development and Field Test of Psychophysical Tests for DWI Arrest (Tharp, Burns, and Moskowitz, 1981). That report was cited throughout the U.S. to establish the scientific validity of the SFST battery and to support officers' testimony in court.

Beginning in 1981, law enforcement officers used NHTSA's Standardized Field Sobriety Test (SFST) battery at roadside to help determine whether motorists who are suspected of DWI have blood alcohol concentrations (BACs) greater than 0.10 percent. Since 1981, however, many states have implemented laws that define DWI at BACs below 0.10. For this reason, NHTSA sponsored additional research to systematically evaluate the accuracy of the SFST battery to discriminate above or below 0.08 percent and above or below 0.04 percent BAC. In that study, Jack Stuster and Marcelline Burns (Stuster and Burns,1998) found the SFSTs to be extremely accurate. Decision analyses revealed that officers' estimates of whether a motorist's BAC was above or below 0.08 were accurate in 91 percent of the cases, and estimates of whether a motorist's BAC was above 0.04 but under 0.08 were accurate in 94 percent of the decisions to arrest and in 80 percent of the relevant cases, overall. 2

The SFST battery is composed of three tests: Horizontal Gaze Nystagmus (HGN), Walk-and-Turn (WAT), and One-Leg Stand (OLS); the tests and scoring procedures are described in Appendix A. Table 1 compares the accuracy of the SFSTs during the 1981 and 1998 validation studies. In the 1998 study, HGN was again found to be the most accurate of the component tests in discriminating above and below the criterion BAC, and the results of the three SFSTs combined provided slightly greater accuracy than the HGN test alone. The most salient difference between the results of the 1981 and the 1998 validation studies is the substantial increase in theaccuracy of officers' decisions, despite the lower criterion BAC in the 1998 study (0.10 percent BAC in 1981; 0.08 percent BAC in 1998). The greater accuracies of the SFST battery and component tests during the 1998 study are attributable to the differential experience of the officers who participated in the two studies. That is, the officers who participated in the original research had learned the procedures as part of the 1981 laboratory study; in contrast, the officers who participated in the 1998 study had been using the SFSTs for several years to help make arrest decisions under operational conditions. Thus, the levels of accuracy observed during the 1998 study reflect current conditions and should be considered the validated measures of SFST accuracy.

Table 1
Comparison of SFST Accuracy
During the 1981 and 1998 Validation Studies
SFST(s)% Correct
Decisions 
1981
% Correct
Decisions
1998

SFST(s) 1981 1998 SFST Battery 
(the 3 tests combined)

8191

Horizontal Gaze Nystagmus (HGN)

7788

Walk-and-Turn (WAT)

6879

One-Leg Stand (OLS)

6583

Other studies have confirmed the considerable accuracy of the SFSTs to assist officers in making arrest decisions for DWI (Arend, et. al., 1999; Anderson and Burns, 1997; Burns and Anderson, 1995). Officers have found the SFSTs to be fully-acceptable for field use and they appreciate the diagnostic value of test results. Further, many prosecutors prefer officers to administer only the SFSTs to help make arrest decisions for DWI because the tests have been scientifically validated and are defensible in court.

NHTSA's SFSTs largely have replaced the unvalidated performance tests of unknown merit that once were the patrol officer's only tools in helping to make post-stop DWI arrest decisions. Regional and local preferences for other performance tests still exist, even though some of the tests have not been validated. Despite regional differences in what tests are used to assist officers in making DWI arrest decisions, NHTSA's SFSTs presently are used in all 50 states. NHTSA's SFSTs have become the standard pre-arrest procedures for evaluating DWI in most law enforcement agencies. 3

The Horizontal Gaze Nystagmus (HGN) test is considered by many law enforcement officers to be the most effective technique to provide evidence of alcohol in a motorist's system. The normal variation in human physical and cognitive capabilities, and the effects of alcohol tolerance, can result in uncertainties when arrest decisions are made exclusively on the basis of physical and/or cognitive performance tests. These uncertainties have resulted in many DWI suspects being released rather than detained and transported to another location for evidentiary chemical testing. This is because some experienced drinkers can perform physical and cognitive tests acceptably, even with a BAC greater than 0.10 percent. However, experienced drinkers cannot conceal the physiological effects of alcohol from an officer who is skilled in HGN administration, because Horizontal Gaze Nystagmus is an involuntary reaction over which an individual has absolutely no control.

The Importance of Standardization

The validity of SFST results is dependent upon practitioners following the established, standardized procedures for test administration and scoring. NHTSA's SFST Student Manual states that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.

Courts in several states have reviewed the admissibility of field sobriety tests that assess physical coordination and have held that deviations in the administration of the tests should not result in the suppression of test results. These courts have found that field sobriety tests, including the Walk-and-Turn and the One-Leg-Stand of the SFST battery, are simple physical dexterity exercises that can be interpreted by an officer in the field, and by others in a court of law. However, courts have ruled that the admissibility of the HGN test may be treated differently due to its "scientific nature." For this reason, HGN results are vulnerable to challenge, and likely to be excluded by the court, if the test was not administered in strict compliance with established protocols.

Other states have been even less accommodating to deviations from the standardized procedures. In particular, the Ohio State Supreme Court ruled that law enforcement officers have no discretion in the administration of SFSTs. In a four-to-two decision, the Ohio State Supreme Court held in Ohio v. Homan, 732 N.E.2d 952 (Ohio 2000), that Standardized Field Sobriety Tests conducted in a manner that departs from the methods established by NHTSA "are inherently unreliable" and thus inadmissible. 4

The SFST battery is composed of three separate tests with three independent predictive validities that range from 79 to 88 percent. Depending on the physical characteristics of the subject and roadside conditions, an officer might choose to refrain from administering the entire SFST battery, as directed by the training materials (e.g., a leg injury that might affect a person's ability to perform the OLS test). Because an officer is permitted the discretion to withhold a test, it is reasonable to question why a deviation in the administration of one of the three tests would disqualify the entire battery. Although it is not recommended to do so under ideal conditions, the data show that accurate arrest decisions reliably can be made on the basis of two of the SFSTs, or on the basis of HGN test results, alone.

The International Association of Chiefs of Police (IACP) adopted uniform procedures in 1992 to guide the training of SFST instructors and practitioners. Those standards include 24-hours of NHTSA-approved SFST instruction. The procedures for administering and interpreting SFST results can be readily learned and, generally, proficiency increases with experience. However, it is possible for SFST skills to degrade if they are not exercised regularly (e.g., during a prolonged absence from patrol work). Also, the SFST procedures have evolved since they were first developed in 1981. Modifications to the standardized procedures could result in an officer administering SFSTs according to outdated protocols. 5 For these reasons, NHTSA recommends that law enforcement agencies conduct refresher training for SFST instructors and practitioners.

  1.  
    • Various terms are used throughout the United States for offenses involving drinking and driving. In this report, Driving While Impaired (DWI) is used to refer to all occurrences of driving at or above the illegal blood alcohol concentratiion (BAC) limit of a jurisdiction.
    • In addition to the results of the decision analysis, the study found statistically significant correlations between SFST results and measured BACs (p=.005); also, the difference between the mean estimated and measured BACs of the 297 motorists tested at roadside during the field study was very small and operationally irrelevant (i.e., 0.117 vs. 0.122 percent BAC, respectively).
    • The Advisory Committee on Highway Safety of the International Association of Chiefs of Police (IACP) recommended in 1986 that law enforcement agencies adopt and implement NHTSA's SFSTs and the associated training program.
    • Officers always should fully comply with NHTSA's guidelines when administering the SFSTs. However, if deviations occur, officers and the courts should understand that any deviation from established procedures relates to the weight of the evidence, not its admissibility.
    • For example, the original SFST procedures specified that the HGN test not be administered to individuals who were wearing hard contact lenses. The stipulation was made to avoid the possibility of losing a lens as a consequence of the required eye movements. The stipulation eventually was removed when it was recognized that the possibility of dislodging a contact lens was minimal.

K.S.A. 8-1567

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

K.S.A. 8-1001

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      (10)   after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.

      (l)   If a law enforcement officer has reasonable grounds to believe that the person has been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, the person shall also be provided the oral and written notice pursuant to K.S.A. 8-2,145 and amendments thereto. Any failure to give the noticesrequired by K.S.A. 8-2,145 and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. If a law enforcement officer has reasonable grounds to believe that the person has been driving or attempting to drive a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age, the person also shall be given the notices required by K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section.

      (m)   After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the test results show a blood or breath alcohol concentration of .08 or greater, the person's driving privileges shall be subject to suspension, or suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.

      (n)   The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.

      (o)   If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .04 or greater, the person shall be disqualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .08 or greater, or the person refuses a test, the person's driving privileges shall be subject to suspension, or suspension and restriction, pursuant to this section, in addition to being disqualified from driving a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.

      (p)   An officer shall have probable cause to believe that the person operated a vehicle while under the influence of alcohol or drugs, or both, if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to a person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a search warrant under the authority of K.S.A. 22-2501, and amendments thereto.

      (q)   Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.

      (r)   It shall not be a defense that the person did not understand the written or oral notice required by this section.

      (s)   No test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.

      (t)   Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.

      (u)   Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.

      (v)   This act is remedial law and shall be liberally construed to promote public health, safety and welfare.

      (w)   As used in this section, "serious injury" means a physical injury to a person, as determined by law enforcement, which has the effect of, prior to the request for testing:

      (1)   Disabling a person from the physical capacity to remove themselves from the scene;

      (2)   renders a person unconscious;

      (3)   the immediate loss of or absence of the normal use of at least one limb;

      (4)   an injury determined by a physician to require surgery; or

      (5)   otherwise indicates the person may die or be permanently disabled by the injury.

K.S.A. 8-1002

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

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

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

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

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

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

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

      (e)   If a person refuses a test or if a person is still in custody when it is determined that the person has failed a test, the officer shall take any license in the possession of the person and, if the license is not expired, suspended, revoked or canceled, shall issue a temporary license effective until the 30th day after the date of service set out in the law enforcement officer's certification and notice of suspension. If the test failure is established by a subsequent analysis of a breath or blood sample, the temporary license shall be served together with the copy of the law enforcement officer's certification and notice of suspension. A temporary license issued pursuant to this subsection shall bear the same restrictions and limitations as the license for which it was exchanged. Within five days after the date of service of a copy of the law enforcement officer's certification and notice of suspension the officer's certification and notice of suspension, along with any licenses taken, shall be forwarded to the division.

      (f)   Upon receipt of the law enforcement officer's certification, the division shall review the certification to determine that it meets the requirements of subsection (a). Upon so determining, the division shall proceed to suspend the person's driving privileges in accordance with the notice of suspension previously served. If the requirements of subsection (a) are not met, the division shall dismiss the administrative proceeding and return any license surrendered by the person.

      (g)   The division shall prepare and distribute forms for use by law enforcement officers in giving the notice required by this section.

      (h)   The provisions of K.S.A. 60-206 and amendments thereto regarding the computation of time shall be applicable in determining the effective date of suspension set out in subsection (d).

K.S.A. 8-1014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

K.S.A. 8-1020

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

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

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

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

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

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

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

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

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

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

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

      (f)   At or prior to the time the notice of hearing is sent, the division shall issue an order allowing the licensee or the licensee's attorney to review any video or audio tape record made of the events upon which the administrative action is based. Such review shall take place at a reasonable time designated by the law enforcement agency and shall be made at the location where the video or audio tape is kept. The licensee may obtain a copy of any such video or audio tape upon request and upon payment of a reasonable fee to the law enforcement agency, not to exceed $25 per tape.

      (g)   Witnesses at the hearing shall be limited to the licensee, to any law enforcement officer who signed the certification form and to one other witness who was present at the time of the issuance of the certification and called by the licensee. The presence of the certifying officer or officers shall not be required, unless requested by the licensee at the time of making the request for the hearing. The examination of a law enforcement officer shall be restricted to the factual circumstances relied upon in the officer's certification.

      (h) (1)   If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether:

      (A)   A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;

      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and

      (D)   the person refused to submit to and complete a test as requested by a law enforcement officer.

      (2)   If the officer certifies that the person failed a breath test, the scope of the hearing shall be limited to whether:

      (A)   A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;

      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;

      (D)   the testing equipment used was certified by the Kansas department of health and environment;

      (E)   the person who operated the testing equipment was certified by the Kansas department of health and environment;

      (F)   the testing procedures used substantially complied with the procedures set out by the Kansas department of health and environment;

      (G)   the test result determined that the person had an alcohol concentration of .08 or greater in such person's breath; and

      (H)   the person was operating or attempting to operate a vehicle.

      (3)   If the officer certifies that the person failed a blood test, the scope of the hearing shall be limited to whether:

      (A)   A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system;

      (B)   the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death;

      (C)   a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto;

      (D)   the testing equipment used was reliable;

      (E)   the person who operated the testing equipment was qualified;

      (F)   the testing procedures used were reliable;

      (G)   the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood; and

      (H)   the person was operating or attempting to operate a vehicle.

      (i)   At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, an affidavit of the custodian of records at the Kansas department of health and environment stating that the breath testing device was certified and the operator of such device was certified on the date of the test shall be admissible into evidence in the same manner and with the same force and effect as if the certifying officer or employee of the Kansas department of health and environment had testified in person. A certified operator of a breath testing device shall be competent to testify regarding the proper procedures to be used in conducting the test.

      (j)   At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, in which the report of blood test results have been prepared by the Kansas bureau of investigation or other forensic laboratory of a state or local law enforcement agency are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.

      (k)   At the hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification are false or insufficient and that the order suspending or suspending and restricting the licensee's driving privileges should be dismissed.

      (l)   Evidence at the hearing shall be limited to the following:

      (1)   The documents set out in subsection (e);

      (2)   the testimony of the licensee;

      (3)   the testimony of any certifying officer;

      (4)   the testimony of any witness present at the time of the issuance of the certification and called by the licensee;

      (5)   any affidavits submitted from other witnesses;

      (6)   any documents submitted by the licensee to show the existence of a medical condition, as described in K.S.A. 8-1001, and amendments thereto; and

      (7)   any video or audio tape record of the events upon which the administrative action is based.

      (m)   After the hearing, the representative of the director shall enter an order affirming the order of suspension or suspension and restriction of driving privileges or for good cause appearing therefor, dismiss the administrative action. If the representative of the director enters an order affirming the order of suspension or suspension and restriction of driving privileges, the suspension or suspension and restriction shall begin on the 30th day after the effective date of the order of suspension or suspension and restriction. If the person whose privileges are suspended is a nonresident licensee, the license of the person shall be forwarded to the appropriate licensing authority in the person's state of residence if the result at the hearing is adverse to such person or if no timely request for a hearing is received.

      (n)   The representative of the director may issue an order at the close of the hearing or may take the matter under advisement and issue a hearing order at a later date. If the order is made at the close of the hearing, the licensee or the licensee's attorney shall be served with a copy of the order by the representative of the director. If the matter is taken under advisement or if the hearing was by telephone conference call, the licensee and any attorney who appeared at the administrative hearing upon behalf of the licensee each shall be served with a copy of the hearing order by mail. Any law enforcement officer who appeared at the hearing also may be mailed a copy of the hearing order. The effective date of the hearing order shall be the date upon which the hearing order is served, whether served in person or by mail.

      (o)   The licensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the licensee shall serve the secretary of revenue with a copy of the petition and summons. Upon receipt of a copy of the petition for review by the secretary, the temporary license issued pursuant to subsection (b) shall be extended until the decision on the petition for review is final.

      (p)   Such review shall be in accordance with this section and the act for judicial review and civil enforcement of agency actions. To the extent that this section and any other provision of law conflicts, this section shall prevail. The petition for review shall be filed within 10 days after the effective date of the order. Venue of the action for review is the county where the person was arrested or the accident occurred, or, if the hearing was not conducted by telephone conference call, the county where the administrative proceeding was held. The action for review shall be by trial de novo to the court and the evidentiary restrictions of subsection (l) shall not apply to the trial de novo. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner's driving privileges are subject to suspension or suspension and restriction under the provisions of this act. If the court finds that the grounds for action by the agency have been met, the court shall affirm the agency action.

      (q)   Upon review, the licensee shall have the burden to show that the decision of the agency should be set aside.

      (r)   Notwithstanding the requirement to issue a temporary license in K.S.A. 8-1002, and amendments thereto, and the requirements to extend the temporary license in this section, any such temporary driving privileges are subject to restriction, suspension, revocation or cancellation as provided in K.S.A. 8-1014, and amendments thereto, or for other cause.

      (s)   Upon motion by a party, or on the court's own motion, the court may enter an order restricting the driving privileges allowed by the temporary license provided for in K.S.A. 8-1002, and amendments thereto, and in this section. The temporary license also shall be subject to restriction, suspension, revocation or cancellation, as set out in K.S.A. 8-1014, and amendments thereto, or for other cause.

      (t)   The facts found by the hearing officer or by the district court upon a petition for review shall be independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect the suspension or suspension and restriction to be imposed under this section.

      (u)   All notices affirming or canceling a suspension under this section, all notices of a hearing held under this section and all issuances of temporary driving privileges pursuant to this section shall be sent by first-class mail and a United States post office certificate of mailing shall be obtained therefor. All notices so mailed shall be deemed received three days after mailing, except that this provision shall not apply to any licensee where such application would result in a manifest injustice.

      (v)   The provisions of K.S.A. 60-206, and amendments thereto, regarding the computation of time shall be applicable in determining the time for requesting an administrative hearing as set out in subsection (a) and to the time for filing a petition for review pursuant to subsection (o) and K.S.A. 8-259, and amendments thereto.

K.S.A. 8-1021

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

 

 

 

 

 

 

 

 

 

Important Points regarding Kansas DUI charges:

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

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

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

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

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

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

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

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

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

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

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

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.

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Learn about Olathe driving under the influence (DUI/DWI) charges & hiring an Olathe DUI attorney/lawyer/law firm:

1. Almost every Olathe DUI case will involve 2 separate components: (1) the criminal case in Olathe Municipal Court (for misdemeanor DUI cases) or Johnson County District Court (for felony DUI cases) where every conviction will include a jail sentence, fines, couert ordered probation, and other penalties; and (2) a driver's license hearing with the Kansas Department of Revenue ("KDR") where your driver's license can be suspended for 1 year, 2 years, 3 years, 10 years, or life, depending on the circumstances of the case and your driving history. 

The results of the two proceedings are not related - a defendant can win one, and lose the other, win both, or lose both.  You have a constitutional right to be represented by an Olathe DUI/DWI lawyer in both proceedings.  

If you have had two or more prior DUI/DWI convictions or diversions in Kansas or elsewhere, then the case will likely be sent to Johnson County District Court to be prosecuted as a felony.  Felony driving under the influence charges carry much higher penalties than misdemeanors, as a result felony DUI/DWI cases in Johnson County are much more complex than misdemeanor DUI/DWI cases in Olathe Municipal Court.

2.  In nearly every Olathe DUI case, you only have 14 calendar days from the date of your arrest to request an administrative hearing with the Kansas Department of Revenue, or your driver's license will be automatically suspended for a period from 30 days (for 1st time DUI charges with a breath test below .15) to life, depending on your driving record.  

One of our Olathe law office's experienced DUI attorneys can temporarily or permanently preserve your driving privileges by requesting a hearing.  Our law firm's Olathe DUI lawyers can then challenge the proposed driver's license suspension at the administrative hearing by pointing out flaws with the arrest, testing equipment, and other factors.

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

4.  There are 3 possible outcomes for most Olathe DUI charges:   (1) Acquittal/Dismissal of an Olathe DUI charge :  Once a DUI case has been charged in Olathe, the only way to truly clear your record is to fight the case and secure an acquittal or dismissal of the charge.  This is done through trial or through pre-trial practice and procedures.  we have experience taking Olathe DUI cases to trial in Olathe Municipal Court and Johnson County District Court; (2) An Olathe DUI diversion agreement :  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 pleading guilty to an Olathe DUI in Olathe Municipal Court or Johnson County District Court 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 driving under the influence (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.

Recent News regarding our Olathe law office's DUI/DWI representation:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11/05/09 - Today we received confirmation from the Kansas Department of Revenue that our client's proposed 1 year driver's license suspension was dismissed.  This win was crucial as our client must drive a vehicle for his employment.

10/20/09 - Today we secured the dismissal of two felony charges filed in Johnson County District Court against our client.  These charges were a result of a driving under the influence stop in Gardner, KS.  We felt that they were added in an attempt to "strongarm" our client into accepting a plea deal on the DUI charge and we refused to cave into the prosecutor's demands.  The dismissal of the charges means that our cleint is no longer facing a lengthy prison sentence.
9/10/09 - Today we helped our client avoid a 3 year driver's license suspension proposed by the   Kansas Department of Revenue.  Our defense focused on the personal service (or lack of in this case) which did not comply with the statute governing DUI driver's license suspensions.
8/20/09 - Scott McFall won a trial in Olathe Municipal Court.  This case involved an auto accident in Olathe where the City was attempting to also assess over $3000 in restitution as a result of the auto accident invovled in this case.  In convincing the Court that our client was not guilty, we not only kept a conviction from marring their driving record, but we also saved them over $3000!
8/10/09 - Today we received notice from The Kansas Department of Revenue that one of our Johnson County District Court clients, who was facing a 1 year driver's license suspension had prevailed.  We successfully pointed out that the State Trooper who had certified the document used to trigger the license suspension process - called a DC-27 - was incorrectly certified.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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


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


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


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


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


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


2/9/07 Although we were retained only 6 weeks before a trial, the divorce order attorney Johnson obtained for our client was significantly better than the final settlement offer the client rejected.