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What is the real cost of a guilty plea in Overland Park DUI charge or an Overland Park DUI diversion?Before you decide to hire an Overland Park driving under the influence (DUI/DWI) attorney, you should understand all of the potential costs and penalties that may result from an Overland Park DUI conviction or diversion agreement. The total cost of an Overland Park DUI charge depends on your circumstances and the charge (1st, 2nd, 3rd, etc.). You will ultimately determine whether to go to trial, plead guilty in hopes of limiting your exposure, or choose diversion (for 1st time DUIs only), and you should know what your DUI could cost you. We are confident that once you know all of the ways an Overland Park DUI conviction can hurt you, you will want to find the best DUI attorney for you and your case. 2. The first expense people think of is attorney’s fees. This is certainly a very significant expense (my office charges $200/hr), but in many cases is not the biggest cost. My office’s fees depend on the time spent on a case – meaning a trial will cost more than a plea in most cases. Costs will go up or down depending on the number of issues that must be presented to the Court and in the administrative hearing – my office simply bills based on time spent on your case. We have represented people for as little as $500 (it was a VERY exceptional case, so please don’t expect that as a realistic cost for my office to represent you at trial) and as much as $10,000 for a very complex, 5th time DUI trial and the associated preparation. 3. There will be a fine with every conviction, as well as court costs. i. First time conviction: $500-$1000 fine ii. Second time conviction: $1000-$1500 fine iii. Third conviction: $1500-2500 fine iv. Fourth conviction: $2500 fine v. Fifth Conviction: $2500 fine 4. There will be a driver's license suspension between 30 days and 1 year for every Overland Park DUI conviction, even if you win your administrative hearing. Kansas does not grant hardships either – they do not care how you will get to work, how your kids will get to school, etc. Driving while suspended for DUI is a class A misdemeanor, punishable by up to a year in jail. The cost for a suspension is from $0 for some folks to hundreds of thousands of dollars for those who will lose their jobs when they can’t get to work on time. A diversion agreement may prevent a suspension in some cases. 5. An Overland Park DUI conviction will almost always cause your insurance rates to go through the roof. Just one DUI conviction can cause your insurance rates to TRIPLE. This can mean tens of thousands of dollars in additional premiums! The Kansas Insurance Commissioner's website indicates that a DUI can have a serious negative impact on your driving record. 6. Treatment costs will range from a few hundred dollars to tens of thousands of dollars. 7. Ignition interlocks will be required for most convictions once a person gets their license back. The companies providing these interlocks are gouging people required to get these devices, with the interlocks often costing more to install and to “lease” than folks insurance rates were before the DUI. Figure at least $1000 and up to $3000, depending on the length of your suspension. 8. Monitoring fees are typically ~$50/month for at least one year and UA’s are about $20 per time. 9. A conviction on your record could possibly hinder your efforts at obtaining future employment or promotions. The cost of this factor is obviously hard to ascertain, but will easily add up to tens or hundreds of thousands of dollars for many people. 10. A conviction will end up in jail time which will almost always result in lost wages. This cost can be tempered by contrasting the result of going to trial and losing which could result in more jail time and more lost wages. A trial conviction could also end up in serving so much time that one loses their job when they might not have if they had pled guilty. At the end of the day, the judge will decide the sentence for a person convicted and could give fewer days than the proposed plea agreement called for (I have personally had this happen to clients) or many more. 11. A conviction may subject you to embarrassment or ridicule with friends, family, and coworkers. 12. Conclusion: It is extremely important to consider all costs when deciding how to proceed on your case. Important Overland Park 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 Johnson County 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. |
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2. Fines - A first time DUI in Overland Park carries a fine between $500 and $1000, while subsequent fines range up to $2500. We have had success in ensuring that our Overland Park DUI clients pay no more than the minimum fine allowed by statute.
3. Suspension of your drivers license by the Kansas Department of Revenue's Driver Control Bureau - A first time Overland Park conviction or first time Intoxilyzer 8000 test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items) if you blow between a .08 and a .15 and a 1 year suspenstion if you blow over .15. Refusing to take the Intoxilyzer 8000 test carries a 1 year suspension if it is your first DUI "occurrence" as defined by the Kansas Department of Revenue. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. The penalties for subsequent breath test failures and refusals are listed on the back of the "pink sheet," called a DC-27 that is normally given to the driver in a DUI case.
4. Probation Costs and Hassles - If you're convicted of DUI in Overland Park through a guilty plea or by being found guilty at trial, probation is often granted. If it is, you will be ordered to meet with a probation officer with Overland Park Court Services one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
A probation in Overland Park can cause friction with your employer and your family. Oftentimes meetings are scheduled during the workday and completing a UA for Overland Park can also require you to leave your job. The Court Services officer may not care that doing so could cause you to lose your job or miss important events with your family. If you miss a meeting or a UA, you could find yourself facing a probation revocation proceeding where you could then be ordered to serve months in jail.
Thus you may find yourself in the dilemma of juggling a job necessary to pay your bills, take care of your family, and pay for the Overland Park court fines, while having to miss work frequently to take Court ordered UA's, probation meetings, or alcohol classes and having to complete all of the above without a valid driver's license. We truly understand that this is not easy.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Overland Park DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars. You will also have to pay for any classes or treatment that are ordered by the Court or your probation officer.
6. Social Effects - An Overland Park DUI can affect your job status and eligibility, can subject you to ridicule from family and friends and the penalties may seriously affect your daily life.
At the Law Offices of Jeremiah Johnson, LLC, we recognize that everyone is innocent until proven guilty and that being charged with a DUI is not remotely the same as being convicted of a DUI. While many people accept DUI tests as irrefutable evidence, in actuality Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we believe in exploring every angle relating to the FST's and Breathalyzer results when evaluating your case to ensure that your rights are protected.
In most Johnson County DUI cases, you only have 10 days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. Suspensions range from as short as 30 days (with a 330 day suspension) to lifetime suspensions with no eligibility for reinstatement. Thus, it is highly suggested that you retain an experienced Johnson County, Kansas DUI attorney immediately to protect your rights and driving privileges.
Regardless of which path you choose to take, the attorneys and staff of our law office will be happy to represent you in your Overland Park DUI case. Our representation typically starts with a free consultation in our office to discuss your DUI case. At that meeting we will discuss the details of your case as you remember then and along with the paperwork you have, including the DC-27 that the Overland Park officers gave you when they took your license. We will also draw up a free agreement for you to take home and review.
The first step in our actual representation almost always involves requesting an administrative hearing with the Kansas Department of Revenue that will allow you to at least temporarily avoid a driver’s license suspension. We will also request the police reports and in-car videos from the Overland Park 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 Overland Park and throughout Johnson County.
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with an Overland Park, Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Overland Park DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Overland Park DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request. The DC-27 or "pink sheet" will then serve as your license.
In Johnson County, DUI Administrative Hearings are usually scheduled at least 3 months after the Overland Park DUI arrest. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.
The Administrative Hearing
The difficult part of the Department of Revenue Administrative Hearings is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be suspended, you have to the burden of proving that your license should not be taken from you. This is contrary to all areas of criminal law where the doctrine of "guilty until proven innocent," is one of the hallmarks of our legal system.
At the Kansas DUI administrative hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Kansas DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you quickly retain a well-qualified Kansas DUI defense lawyer as soon as possible after the arrest.
Possible Driver's License Suspensions from a Overland Park DUI include:
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.
For experienced and aggressive representation in the defense of a DUI charge in Olathe, contact my offices to schedule a free initial consultation. My offices are open from 7 am until 6 pm, Monday through Friday and evening and weekend hours are available by appointment. I accept Visa, MasterCard, Discover and American Express.
The Kansas DUI Statute:
This is the statute adopted by Overland Park's municipal code.
Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.
(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.
(f) (1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.
(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(k) (1) Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation,maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(m) The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.
(n) For the purpose of determining whether a conviction is afirst, second, third, fourth or subsequent conviction in sentencing under this section:
(1) "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(3) any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;
(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense; and
(5) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.
(o) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.
(p) (1) Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.
Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(q) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.
(r) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alternative, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.
(s) Upon a fourth or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.
(t) For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.
(2) "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.
(u) The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.
(v) Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; July 1.
8-1001. Tests for alcohol or drugs; request by officer, grounds; consent implied; administration of tests, when; procedures; immunity from liability; duty to provide driver notice; refusal to comply or test result exceeding limit, license suspension; search warrant, admissibility of test; availability of test result; remedial nature of law. (a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. A person who is dead or unconscious shall be deemed not to have withdrawn the person's consent to such test or tests, which shall be administered in the manner provided by this section.
(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a): (1) If the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, or was under the age of 21 years while having alcohol or other drugs in such person's system; and one of the following conditions exists: (A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a, and amendments thereto, or involving driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, in violation of a state statute or a city ordinance; or (B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or (2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense, as defined in K.S.A. 8-2117, and amendments thereto. The traffic offense violation shall constitute probable cause for purposes of paragraph (2). The test or tests under paragraph (2) shall not be required if a law enforcement officer has reasonable grounds to believe the actions of the operator did not contribute to the accident or collision. The law enforcement officer directing administration of the test or tests may act on personal knowledge or on the basis of the collective information available to law enforcement officers involved in the accident investigation or arrest.
(c) If a law enforcement officer requests a person to submit to a test of blood under this section, the withdrawal of blood at the direction of the officer may be performed only by: (1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65-6112, and amendments thereto, authorized by medical protocol or (4) a phlebotomist.
(d) A law enforcement officer may direct a medical professional described in this section to draw a sample of blood from a person:
(1) If the person has given consent and meets the requirements of subsection (b);
(2) if medically unable to consent, if the person meets the requirements of paragraph (2) of subsection (b); or
(3) if the person refuses to submit to and complete a test, if the person meets the requirements of paragraph (2) of subsection (b).
(e) When so directed by a law enforcement officer through a written statement, the medical professional shall withdraw the sample as soon as practical and shall deliver the sample to the law enforcement officer or another law enforcement officer as directed by the requesting law enforcement officer as soon as practical, provided the collection of the sample does not jeopardize the person's life, cause serious injury to the person or seriously impede the person's medical assessment, care or treatment. The medical professional authorized herein to withdraw the blood and the medical care facility where the blood is drawn may act on good faith that the requirements have been met for directing the withdrawing of blood once presented with the written statement provided for under this subsection. The medical professional shall not require the person to sign any additional consent or waiver form. In such a case, the person authorized to withdraw blood and the medical care facility shall not be liable in any action alleging lack of consent or lack of informed consent.
(f) Such sample or samples shall be an independent sample and not be a portion of a sample collected for medical purposes. The person collecting the blood sample shall complete the collection portion of a document provided by law enforcement.
(g) If a person must be restrained to collect the sample pursuant to this section, law enforcement shall be responsible for applying any such restraint utilizing acceptable law enforcement restraint practices. The restraint shall be effective in controlling the person in a manner not to jeopardize the person's safety or that of the medical professional or attending medical or health care staff during the drawing of the sample and without interfering with medical treatment.
(h) A law enforcement officer may request a urine sample upon meeting the requirements of paragraph (1) of subsection (b) and shall request a urine sample upon meeting the requirements of paragraph (2) of subsection (b).
(i) If a law enforcement officer requests a person to submit to a test of urine under this section, the collection of the urine sample shall be supervised by persons of the same sex as the person being tested and shall be conducted out of the view of any person other than the persons supervising the collection of the sample and the person being tested, unless the right to privacy is waived by the person being tested. When possible, the supervising person shall be a law enforcement officer. The results of qualitative testing for drug presence shall be admissible in evidence and questions of accuracy or reliability shall go to the weight rather than the admissibility of the evidence. If the person is medically unable to provide a urine sample in such manner due to the injuries or treatment of the injuries, the same authorization and procedure as used for the collection of blood in subsections (d) and (e) shall apply to the collection of a urine sample.
(j) No law enforcement officer who is acting in accordance with this section shall be liable in any civil or criminal proceeding involving the action.
(k) Before a test or tests are administered under this section, the person shall be given oral and written notice that: (1) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both;
(2) the opportunity to consent to or refuse a test is not a constitutional right;
(3) there is no constitutional right to consult with an attorney regarding whether to submit to testing;
(4) if the person refuses to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, the person's driving privileges will be suspended for one year for the first occurrence, two years for the second occurrence, three years for the third occurrence, 10 years for the fourth occurrence and permanently revoked for a fifth or subsequent occurrence;
(5) if the person submits to and completes the test or tests and the test results show for the first occurrence:
(A) An alcohol concentration of .08 or greater, the person's driving privileges will be suspended for 30 days for the first occurrence; or
(B) an alcohol concentration of .15 or greater, the person's driving privileges will be suspended for one year;
(6) if the person submits to and completes the test or tests and the test results show an alcohol concentration of .08 or greater, the person's driving privileges will be suspended for one year for the second, third or fourth occurrence and permanently revoked for a fifth or subsequent occurrence;
(7) if the person is less than 21 years of age at the time of the test request and submits to and completes the tests and the test results show an alcohol concentration of .08 or greater, the person's driving privileges will be suspended for one year except the person's driving privileges will be permanently revoked for a fifth or subsequent occurrence;
(8) refusal to submit to testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both;
(9) the results of the testing may be used against the person at any trial on a charge arising out of the operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both; and
(10) after the completion of the testing, the person has the right to consult with an attorney and may secure additional testing, which, if desired, should be done as soon as possible and is customarily available from medical care facilities willing to conduct such testing.
(l) If a law enforcement officer has reasonable grounds to believe that the person has been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person's system, the person shall also be provided the oral and written notice pursuant to K.S.A. 8-2,145 and amendments thereto. Any failure to give the notices required by K.S.A. 8-2,145 and amendments thereto shall not invalidate any action taken as a result of the requirements of this section. If a law enforcement officer has reasonable grounds to believe that the person has been driving or attempting to drive a vehicle while having alcohol or other drugs in such person's system and such person was under 21 years of age, the person also shall be given the notices required by K.S.A. 8-1567a, and amendments thereto. Any failure to give the notices required by K.S.A. 8-1567a, and amendments thereto, shall not invalidate any action taken as a result of the requirements of this section.
(m) After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the test results show a blood or breath alcohol concentration of .08 or greater, the person's driving privileges shall be subject to suspension, or suspension and restriction, as provided in K.S.A. 8-1002 and 8-1014, and amendments thereto.
(n) The person's refusal shall be admissible in evidence against the person at any trial on a charge arising out of the alleged operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both.
(o) If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .04 or greater, the person shall be disqualified from driving a commercial motor vehicle, pursuant to K.S.A. 8-2,142, and amendments thereto. If a law enforcement officer had reasonable grounds to believe the person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, and the test results show a blood or breath alcohol concentration of .08 or greater, or the person refuses a test, the person's driving privileges shall be subject to suspension, or suspension and restriction, pursuant to this section, in addition to being disqualified from driving a commercial motor vehicle pursuant to K.S.A. 8-2,142, and amendments thereto.
(p) An officer shall have probable cause to believe that the person operated a vehicle while under the influence of alcohol or drugs, or both, if the vehicle was operated by such person in such a manner as to have caused the death of or serious injury to a person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a search warrant under the authority of K.S.A. 22-2501, and amendments thereto.
(q) Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.
(r) It shall not be a defense that the person did not understand the written or oral notice required by this section.
(s) No test results shall be suppressed because of technical irregularities in the consent or notice required pursuant to this act.
(t) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.
(u) Upon the request of any person submitting to testing under this section, a report of the results of the testing shall be made available to such person.
(v) This act is remedial law and shall be liberally construed to promote public health, safety and welfare.
(w) As used in this section, "serious injury" means a physical injury to a person, as determined by law enforcement, which has the effect of, prior to the request for testing:
(1) Disabling a person from the physical capacity to remove themselves from the scene;
(2) renders a person unconscious;
(3) the immediate loss of or absence of the normal use of at least one limb;
(4) an injury determined by a physician to require surgery; or
(5) otherwise indicates the person may die or be permanently disabled by the injury.
The Law Offices of Jeremiah Johnson, LLC
104 E. Poplar
Olathe, KS 66061
Phone:(866) 656-1268
Fax: (913) 764-5012
| Recent News regarding our law office's Johnson County DUI/DWI representation: (Results involve unique DUI/DWI clients with unique circumstances for their Johnson County DUI/DWI cases. These results should not be construed as a promise of similar results in your case) 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. 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 (the newest attorney working on 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 3/1/08 - Today this office won an Administrative Hearing against eh Kansas Department of Revenue Driver's License Bureau.
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.
5/12/08 - Arguing a Motion to Suppress in Overland Park Municipal Court based on State v. Schmitter and U.S. v. Gonzalez, we secured a not guilty verdict for our client. 5/1/08 -This office secured a win on a first time DUI in Johnson County District Court (magistrate division) 4/23/08 - Another Driver's License Administrative Hearing, another dismissal allowing our client - facing a 3 year license suspension - to keep his license. Today we relied on KSA 8-1002 4/21/08 - Today we successfully argued at sentencing for an advantageous sentence for a felony DUI client who had been charged and pled to a felony DUI and several associated charges. Originally facing over 5 years in prison, we argued for, and the court sentenced him to 12 months with 6 months of work release. 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 . |
If you have been arrested or charged with driving under the influence (DUI) in Overland Park, you want a DUI lawyer with extensive knowledge of the drunk driving laws in Overland Park and Kansas. You want a DUI attorney who has experience with DUI trials, pleas, and diversions in Overland Park Municipal Court and Johnson County District Court. You need an attorney who understands how to interpret and challenge breathalyzer results, and who can effectively represent you at a drivers license suspension hearing with the Kansas Department of Revenue.
You also want an attorney who will keep you informed about your Overland Park DUI case and its progression. You want an attorney who will send you copies of important corrrespondence, documents, or videos in your case, and you want an attorney who will respond to your phone calls and other communication.
At the Law Offices of Jeremiah Johnson, LLC, we strive to represent all of our clients in the best manner possible, fighting for their rights and well being at every opportunity while treating them with the respect they deserve. We are well versed in all of the relevant DUI and COnstiutional law that surrounds each and every Overland Park DUI case. Perhaps more importantly, however, we care about our clients and their well being. We understand that an Overland Park DUI charge can leave you feeling a number of emotions and we do our best to make sure our clients are well informed about the law surrounding their Overland Park DUI case as well as about their case progress. Contact us to schedule a free initial consultation to discuss your Overland Park DUI charge.
Before you read any further, please notethe following: The most important thing to remember in any Overland Park DUI case is that you only have 10 business days from the date of your arrest to request an Administrative Hearing with the Kansas Department of Revenue or your license will be automatically suspended for a period between 30 days and life, with no "hardship licenses," being granted. This 10 day period is an ABSOLUTE deadline - if you're even a day late, the Department of Revenue will ignore your request and automatically suspend you license, whether you're guilty or not! This makes it crucial to immediately contact an experienced Overland Park DUI attorney.
Overland Park, Kansas driving under the influence (DUI) charges/arrests almost always involve two distinct and separate parts:
(1) the criminal proceedings in Overland Park Municipal Court or Johnson County District Court and can result in fines and/or jail time, probation, and court ordered treatment; and
(2) the administrative proceedings with the Kansas Department of Revenue, which can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you.
The Dept. of Revenue does not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license. They do not consider it their problem that without a license you may nto be able to get to work or attend court ordered treatment. In fact, Kansas does not grant hardship licenses - you will either be suspended for the time period proposed by the Department of Revenue or you won't.
This is probably the most frustrating part of the entire DUI process in Overland Park and Kansas in general - the suspension of a license necessary for a person to complete their probation, treatment and other Court ordered aspects and also necessary for a person to get to work so they can take care of themselves, their family and pay their Court ordered costs. This area of the country demands that a person have a license to live their daily lives.
The Kansas DUI statutes are some of the toughest in the entire country with license suspensions and jail time required for every driving under the influence (DUI) conviction in Overland Park. If you are charged with a DUI in Overland Park, you face the following consequences:
1. Jail time - A first time conviction in Overland Park is punishable by up to 6 months in the Johnson County jail and subsequent offenses are punishable by up to 1 year. Probation is granted for most Overland Park DUI convictions, but the amount of jail time to be served before probation is granted will depend on the circumstances surrounding the charge. This law office has had considerable success in arguing to courts that our clients convicted in Overland Park should only be required to serve the statutory minimum jail time instead of the maxiumum sentence allowed by law. Depending on the circumstances, we may be also to secure a diversion (which carries no jail time and does not techinically count as a conviction), or enrollment in the CWIP class which is a non-traditional jail facility which some of our clients find very preferable to jail.
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2. Fines - A first time DUI in Overland Park carries a fine between $500 and $1000, while subsequent fines range up to $2500. We have had success in ensuring that our Overland Park DUI clients pay no more than the minimum fine allowed by statute.
3. Suspension of your drivers license by the Kansas Department of Revenue's Driver Control Bureau - A first time Overland Park conviction or first time Intoxilyzer 8000 test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items) if you blow between a .08 and a .15 and a 1 year suspenstion if you blow over .15. Refusing to take the Intoxilyzer 8000 test carries a 1 year suspension if it is your first DUI "occurrence" as defined by the Kansas Departmentof Revenue. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. The penalties for subsequent breath test failures and refusals are listed on the back of the "pink sheet," called a DC-27 that is normally given to the driver in a DUI case.
4. Probation Costs and Hassles - If you're convicted of DUI in Overland Park through a guilty plea or by being found guilty at trial, probation is often granted. If it is, you will be ordered to meet with a probation officer with Overland Park Court Services one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
A probation in Overland Park can cause friction with your employer and your family. Oftentimes meetings are scheduled during the workday and completing a UA for Overland Park can also require you to leave your job. The Court Services officer may not care that doing so could cause you to lose your job or miss important events with your family. If you miss a meeting or a UA, you could find yourself facing a probation revocation proceeding where you could then be ordered to serve months in jail.
Thus you may find yourself in the dilemma of juggling a job necessary to pay your bills, take care of your family, and pay for the Overland Park court fines, while having to miss work frequently to take Court ordered UA's, probation meetings, or alcohol classes and having to complete all of the above without a valid driver's license. We truly understand that this is not easy.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Overland Park DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars. You will also have to pay for any classes or treatment that are ordered by the Court or your probation officer.
6. Social Effects - An Overland Park DUI can affect your job status and eligibility, can subject you to ridicule from family and friends and the penalties may seriously affect your daily life.
At the Law Offices of Jeremiah Johnson, LLC, we recognize that everyone is innocent until proven guilty and that being charged with a DUI is not remotely the same as being convicted of a DUI. While many people accept DUI tests as irrefutable evidence, in actuality Breathalyzers and field side sobriety tests (FST's) can be highly inaccurate under certain conditions. We believe that the FST's and Breathalyzers used are some of the most inaccurate and unreliable methods of gathering evidence in all of law enforcement. As a result, we believe in exploring every angle relating to the FST's and Breathalyzer results when evaluating your case to ensure that your rights are protected.
In most Johnson County DUI cases, you only have 10 days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. Suspensions range from as short as 30 days (with a 330 day suspension) to lifetime suspensions with no eligibility for reinstatement. Thus, it is highly suggested that you retain an experienced Johnson County, Kansas DUI attorney immediately to protect your rights and driving privileges.
Regardless of which path you choose to take, the attorneys and staff of our law office will be happy to represent you in your Overland Park DUI case. Our representation typically starts with a free consultation in our office to discuss your DUI case. At that meeting we will discuss the details of your case as you remember then and along with the paperwork you have, including the DC-27 that the Overland Park officers gave you when they took your license. We will also draw up a free agreement for you to take home and review.
The first step in our actual representation almost always involves requesting an administrative hearing with the Kansas Department of Revenue that will allow you to at least temporarily avoid a driver’s license suspension. We will also request the police reports and in-car videos from the Overland Park 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 Overland Park and throughout Johnson County.
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with an Overland Park, Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Overland Park DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Overland Park DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request. The DC-27 or "pink sheet" will then serve as your license.
In Johnson County, DUI Administrative Hearings are usually scheduled at least 3 months after the Overland Park DUI arrest. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.
The Administrative Hearing
The difficult part of the Department of Revenue Administrative Hearings is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be suspended, you have to the burden of proving that your license should not be taken from you. This is contrary to all areas of criminal law where the doctrine of "guilty until proven innocent," is one of the hallmarks of our legal system.
At the Kansas DUI administrative hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Kansas DUI attorney must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 10 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you quickly retain a well-qualified Kansas DUI defense lawyer as soon as possible after the arrest.
Possible Driver's License Suspensions from a Overland Park DUI include:
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.
For experienced and aggressive representation in the defense of a DUI charge in Olathe, contact my offices to schedule a free initial consultation. My offices are open from 7 am until 6 pm, Monday through Friday and evening and weekend hours are available by appointment. I accept Visa, MasterCard, Discover and American Express.
The Kansas DUI Statute:
This is the statute adopted by Overland Park's municipal code.
Chapter 8.--AUTOMOBILES AND OTHER VEHICLES Article 15.--UNIFORM ACT REGULATING TRAFFIC; RULES OF THE ROAD8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.
(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.
(f) (1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.
(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(k) (1) Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(m) The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.
(n) For the purpose of determining whether a conviction is afirst, second, third, fourth or subsequent conviction in sentencing under this section:
(1) "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(3) any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;
(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense; and
(5) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.
(o) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.
(p) (1) Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.
Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(q) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.
(r) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alternative, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.
(s) Upon a fourth or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.
(t) For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.
(2) "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.
(u) The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.
(v) Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drugabuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; July 1.
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