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Shawnee, KS Driving Under the Influence (DUI/DWI) Attorney/Lawyer/Law Firm |
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Shawnee, Kansas Driving Under the Influence charges/arrests involve two distinct and separate aspects:
(1) The Criminal Proceedings , which are resolved in the Shawnee Municipal Court or Johnson County District Court. This is the portion where the prosecuting jurisdiction is trying to put you in jail, force you to complete probation, levy significant fines, and require alcohol treatment and/or classes.
(2) The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureauwhich can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license.
The Dept. of Revenue is not concerned that you may not have any 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 Shawnee and Kansas in general - the suspension of a driver's 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 and taking it is only effective with the most serious repeat offenders.
You can win one and lose the other, win both, or lose both.
Our contact with a potential client begins with a no-cost meeting in our office to discuss the details of their case. At this meeting we will discuss the potential penalites involved, the facts as our potential client remembers them, and the legal issues that may come into play in the case. At this meeting, we provide a fee agreement which the potential client may take with them.
The first step in our representation involves entering an appearance in court and requesting an administrative hearing with the Kansas Department of Revenue which will almost always allow our clients to keep driving with a valid license. We also request discovery which includes the police reports, in-car videos, booking videos, and other relevant evidence in the case. We regularly provide our clients with copies of these documents for their records.
The next step involves evaluating the case for a potential resolution. This step really never ends, but it is focused when we get the police reports and videos back from the Shawnee police department and we analyze them for potential weaknesses in the prosecution's case.
If you are charged with a DUI in Shawnee, you are facing:
1. Jail time - A first time conviction is punishable by up to 6 months in the county jail. This office has had considerable success in reducing penalties levied for first time convictions to the statutorily minimum 48 hours in jail. In some cases, a skilled Shawnee DUI attorney can secure the CWIP (community weekend intervention program) class which allows the jail time to be served in a a facility other than the county jail. Jail may also be avoided by signing a diversion agreement with the City of Shawnee which does not count as a conviction on your record.
A second conviction for an Shawnee, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. KSA 8-1567 states that the defendant must serve at least five consecutive days in custody before probation is granted, but after hearing arguments from a skilled Shawnee DUI attorney, the Shawnee Municipal Court Judge can order the defendant to serve only 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the statutory 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required.
A third conviction for an Shawnee DUI (or any other Kansas DUI) is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Shawnee DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. A third time conviction will be prosecuted in Johnson County District Court as Shawnee Municipal Court does not usually have jurisdiction to preside over felony proceedings.
A fourth conviction for an Shawnee DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Shawnee DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordere to only serve 72 hours in jail before being eligible for a work release program. Penalties for a fifth or subsequent
2. Fines - A first time DUI in Shawnee carries a fine between $500 and $1000.
The fine for a second DUI conviction in Shawnee can range from $1,000 to $1,500.
The fine for a third conviction for DUI in Johnson County ranges from $1,500 to $2,500.
The fine for a fourth or subseqent DUI conviction in Johnson County is at least $2,500.
3. Suspension of your drivers license - a first time conviction or Intoxilyzer test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items), while refusing to take the Intoxilyzer carries a 1 year suspension. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. More details are available below, but the most important thing to remember is this: In most Shawnee DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long.
4. Probation Costs and Hassles - In cases where probation is granted, you will likely be ordered to meet with a probation officer one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Kansas DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars.
6. Social Effects - A Johnson County 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 Shawnee DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. 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.
How Long Will Your License Be Suspended?
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with a Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Kansas DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request.
In Johnson County, Shawnee DUI Administrative Hearings are usually scheduled at least 3 months after the Shawnee DUI is charged, although recent experience has suggested that the wait is as long as 4 months. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case. If your license was valid before the charge, it will likely remain valid until the hearing, regardless of its outcome or the outcome of your criminal case.
The Administrative Hearing
The difficult part of the Department of Revenue administrative hearing is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be uspended, you have to the burden of proving that your license should not be taken from you.
At the Kansas DUI administrative hearing regarding your Shawnee DUI charge, a number of issues can be raised by your DUI lawyer in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Shawnee 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 Shawnee, Kansas DUI defense lawyer as soon as possible after your Shawnee DUI arrest.
Possible Suspensions from a Shawnee DUI include:
INTOXILYZER 8000 TEST FAILURE IN SHAWNEE
1st time Intoxilyzer 5000/8000 test failure in Shawnee between .08 and .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.
1st time Intoxilyzer 5000/8000 test failure in Shawnee above .150: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
2nd and 3rd test failures in Shawnee between .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
2nd test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
3rd test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
4th test failure in Shawnee of .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
4th test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
5th test failure in Shawnee : Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
TEST REFUSAL IN SHAWNEE
1st Time Refusal in Shawnee: Driving privileges are suspended for one year. The reinstatement fee is $400.00.
2nd Time Refusal in Shawnee: Driving privileges are suspended for two years. The reinstatement fee is $600.00.
3rd Time Refusal in Shawnee: Driving privileges are suspended for three years. The reinstatement fee is $800.00
4th Time Refusal in Shawnee: Driving privileges are suspended for ten years. The reinstatement fee is $1,000.00
5th Time Refusal in Shawnee: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
For experienced and aggressive legal representation in the defense of a DUI charge in Shawnee, 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 which the City of Shawnee has adopted:
8-1567. Driving under influence of alcohol or drugs; blood alcohol concentration; penalties. [See Revisor's Note] (a) No person shall operate or attempt to operate any vehicle within this state while:
(1) The alcohol concentration in the person's blood or breath as shown by any competent evidence, including other competent evidence, as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
(2) the alcohol concentration in the person's blood or breath, as measured within two hours of the time of operating or attempting to operate a vehicle, is .08 or more;
(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
(b) No person shall operate or attempt to operate any vehicle within this state if the person is a habitual user of any narcotic, hypnotic, somnifacient or stimulating drug.
(c) If a person is charged with a violation of this section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
(d) Upon a first conviction of a violation of this section, a person shall be guilty of a class B, nonperson misdemeanor and sentenced to not less than 48 consecutive hours nor more than six months' imprisonment, or in the court's discretion 100 hours of public service, and fined not less than $500 nor more than $1,000. The person convicted must serve at least 48 consecutive hours' imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole.
In addition, the court shall enter an order which requires that the person enroll in and successfully complete an alcohol and drug safety action education program or treatment program as provided in K.S.A. 8-1008, and amendments thereto, or both the education and treatment programs.
(e) On a second conviction of a violation of this section, a person shall be guilty of a class A, nonperson misdemeanor and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,000 nor more than $1,500. The person convicted must serve at least five consecutive days' imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days' imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
As a condition of any grant of probation, suspension of sentence or parole or of any other release, the person shall be required to enter into and complete a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008, and amendments thereto.
(f) (1) On the third conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined not less than $1,500 nor more than $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 48 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-4603b, and amendments thereto, to serve the remainder of the minimum sentence only after such person has served 48 consecutive hours' imprisonment.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or isto be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
The court shall also require as a condition of parole that such person enter into and complete a treatment program for alcohol and drug abuse as provided by K.S.A. 8-1008, and amendments thereto.
(g) (1) On the fourth or subsequent conviction of a violation of this section, a person shall be guilty of a nonperson felony and sentenced to not less than 90 days nor more than one year's imprisonment and fined $2,500. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days' imprisonment. The 90 days' imprisonment mandated by this paragraph may be served in a work release program only after such person has served 72 consecutive hours' imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program.
(2) The court may order that the term of imprisonment imposed pursuant to paragraph (1) be served in a state facility in the custody of the secretary of corrections in a facility designated by the secretary for the provision of substance abuse treatment pursuant to the provisions of K.S.A. 21-4704, and amendments thereto. The person shall remain imprisoned at the state facility only while participating in the substance abuse treatment program designated by the secretary and shall be returned to the custody of the sheriff for execution of the balance of the term of imprisonment upon completion of or the person's discharge from the substance abuse treatment program. Custody of the person shall be returned to the sheriff for execution of the sentence imposed in the event the secretary of corrections determines: (A) That substance abuse treatment resources or the capacity of the facility designated by the secretary for the incarceration and treatment of the person is not available; (B) the person fails to meaningfully participate in the treatment program of the designated facility; (C) the person is disruptive to the security or operation of the designated facility; or (D) the medical or mental health condition of the person renders the person unsuitable for confinement at the designated facility. The determination by the secretary that the person either is not to be admitted into the designated facility or is to be transferred from the designated facility is not subject to review. The sheriff shall be responsible for all transportation expenses to and from the state correctional facility.
At the time of the filing of the judgment form or journal entry as required by K.S.A. 21-4620 or 22-3426, and amendments thereto, the court shall cause a certified copy to be sent to the officer having the offender in charge. The law enforcement agency maintaining custody and control of a defendant for imprisonment shall cause a certified copy of the judgment form or journal entry to be sent to the secretary of corrections within three business days of receipt of the judgment form or journal entry from the court and notify the secretary of corrections when the term of imprisonment expires and upon expiration of the term of imprisonment shall deliver the defendant to a location designated by the secretary. After the term of imprisonment imposed by the court, the person shall be placed in the custody of the secretary of corrections for a mandatory one-year period of postrelease supervision, which such period of postrelease supervision shall not be reduced. During such postrelease supervision, the person shall be required to participate in an inpatient or outpatient program for alcohol and drug abuse, including, but not limited to, an approved aftercare plan or mental health counseling, as determined by the secretary and satisfy conditions imposed by the Kansas parole board as provided by K.S.A. 22-3717, and amendments thereto. Any violation of the conditions of such postrelease supervision may subject such person to revocation of postrelease supervision pursuant to K.S.A. 75-5217 et seq., and amendments thereto and as otherwise provided by law.
(h) Any person convicted of violating this section or an ordinance which prohibits the acts that this section prohibits who had one or more children under the age of 14 years in the vehicle at the time of the offense shall have such person's punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this section or an ordinance which prohibits the acts that this section prohibits. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
(i) The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
(j) In lieu of payment of a fine imposed pursuant to this section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
(k) (1) Except as provided in paragraph (5), in addition to any other penalty which may be imposed upon a first conviction of a violation of this section, the court may order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(l) (1) Except as provided in paragraph (3), in addition to any other penalty which may be imposed upon a second or subsequent conviction of a violation of this section, the court shall order that each motor vehicle owned or leased by the convicted person shall either be equipped with an ignition interlock device or be impounded or immobilized for a period of two years. The convicted person shall pay all costs associated with the installation, maintenance and removal of the ignition interlock device and all towing, impoundment and storage fees or other immobilization costs.
(2) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(3) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than two years from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(m) The court shall report every conviction of a violation of this section and every diversion agreement entered into in lieu of further criminal proceedings or a complaint alleging a violation of this section to the division. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.
(n) For the purpose of determining whether a conviction is afirst, second, third, fourth or subsequent conviction in sentencing under this section:
(1) "Conviction" includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(2) "conviction" includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(3) any convictions occurring during a person's lifetime shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender;
(4) it is irrelevant whether an offense occurred before or after conviction for a previous offense; and
(5) a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of this section, and amendments thereto, or an ordinance which prohibits the acts of this section, and amendments thereto, only once during the person's lifetime.
(o) Upon conviction of a person of a violation of this section or a violation of a city ordinance or county resolution prohibiting the acts prohibited by this section, the division, upon receiving a report of conviction, shall suspend, restrict or suspend and restrict the person's driving privileges as provided by K.S.A. 8-1014, and amendments thereto.
(p) (1) Nothing contained in this section shall be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited or made unlawful by this act as unlawful or prohibited in such city or county and prescribing penalties for violation thereof. Except as specifically provided by this subsection, the minimum penalty prescribed by any such ordinance or resolution shall not be less than the minimum penalty prescribed by this act for the same violation, and the maximum penalty in any such ordinance or resolution shall not exceed the maximum penalty prescribed for the same violation.
Any such ordinance or resolution shall authorize the court to order that the convicted person pay restitution to any victim who suffered loss due to the violation for which the person was convicted. Except as provided in paragraph (5), any such ordinance or resolution may require or authorize the court to order that the convicted person's motor vehicle or vehicles be impounded or immobilized for a period not to exceed one year and that the convicted person pay all towing, impoundment and storage fees or other immobilization costs.
(2) The court shall not order the impoundment or immobilization of a motor vehicle driven by a person convicted of a violation of this section if the motor vehicle had been stolen or converted at the time it was driven in violation of this section.
(3) Prior to ordering the impoundment or immobilization of a motor vehicle or vehicles owned by a person convicted of a violation of this section, the court shall consider, but not be limited to, the following:
(A) Whether the impoundment or immobilization of the motor vehicle would result in the loss of employment by the convicted person or a member of such person's family; and
(B) whether the ability of the convicted person or a member of such person's family to attend school or obtain medical care would be impaired.
(4) Any personal property in a vehicle impounded or immobilized pursuant to this subsection may be retrieved prior to or during the period of such impoundment or immobilization.
(5) As used in this subsection, the convicted person's motor vehicle or vehicles shall include any vehicle leased by such person. If the lease on the convicted person's motor vehicle subject to impoundment or immobilization expires in less than one year from the date of the impoundment or immobilization, the time of impoundment or immobilization of such vehicle shall be the amount of time remaining on the lease.
(q) No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq. or 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.
(r) The alternatives set out in subsections (a)(1), (a)(2) and (a)(3) may be pleaded in the alternative, and the state, city or county, but shall not be required to, may elect one or two of the three prior to submission of the case to the fact finder.
(s) Upon a fourth or subsequent conviction, the judge of any court in which any person is convicted of violating this section, may revoke the person's license plate or temporary registration certificate of the motor vehicle driven during the violation of this section for a period of one year. Upon revoking any license plate or temporary registration certificate pursuant to this subsection, the court shall require that such license plate or temporary registration certificate be surrendered to the court.
(t) For the purpose of this section: (1) "Alcohol concentration" means the number of grams of alcohol per 100 milliliters of blood or per 210 liters of breath.
(2) "Imprisonment" shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the board of county commissioners or the governing body of a city.
(3) "Drug" includes toxic vapors as such term is defined in K.S.A. 65-4165, and amendments thereto.
(u) The amount of the increase in fines as specified in this section shall be remitted by the clerk of the district court to the state treasurer in accordance with the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt of remittance of the increase provided in this act, the state treasurer shall deposit the entire amount in the state treasury and the state treasurer shall credit 50% to the community alcoholism and intoxication programs fund and 50% to the department of corrections alcohol and drug abuse treatment fund, which is hereby created in the state treasury.
(v) Upon every conviction of a violation of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.
History: L. 1974, ch. 33, § 8-1567; L. 1976, ch. 50, § 1; L. 1982, ch. 144, § 5; L. 1983, ch. 37, § 2; L. 1984, ch. 37, § 4; L. 1984, ch. 39, § 9; L. 1985, ch. 48, § 9; L. 1985, ch. 50, § 5; L. 1988, ch. 48, § 6; L. 1988, ch. 47, § 17; L. 1989, ch. 92, § 16; L. 1990, ch. 44, § 6; L. 1990, ch. 47, § 3; L. 1991, ch. 36, § 20; L. 1992, ch. 298, § 1; L. 1993, ch. 259, § 8; L. 1993, ch. 291, § 270; L. 1994, ch. 291, § 2; L. 2001, ch. 200, § 14; L. 2002, ch. 50, § 1; L. 2002, ch. 166, § 2; L. 2003, ch. 100, § 1; L. 2007, ch. 181, § 9; July 1.
The Law Offices of Jeremiah Johnson, LLC
104 E. Poplar
Olathe, KS 6606
Phone:(866) 656-1268
Fax: (913) 764-5012
Recent NewsResults involve unique clients with unique circumstances and should not be construed as a promise of similar results in your case) |
The Shawnee and Kansas DUI statutes are some of the toughest in the entire country with license suspensions and jail time required for every DUI conviction in Kansas - even for first time convictions of people with no record! While this site contains a good summary of the laws you'll be encountering, every DUI case is unique and you should contact a Shawnee DUI attorney to get the information relevant to your unique case and your circumstances .
If you have been arrested or charged with DUI in Shawnee, you want a lawyer with extensive knowledge of the drunk driving laws in Kansas. You need an attorney who understands how to interpret and challenge breathalyzer results, and who can effectively represent you at a drivers license suspension or drivers license revocation proceeding.
You want a DUI lawyer who will work every aspect of your case and has experience with DUI cases throughout Johnson County. Most importantly, when looking for reprentation for your Shawnee DUI, you want a DUI lawyer who will treat you with courtesy and respect and not just as another file.
The attorneys and staff at the Law Offices of Jeremiah Johnson, LLC understand that being charged with a DUI in Kansas can leave you confused, scared, and stressed. We take care to communicate with our clients throughout the DUI process in Overland Park Municipal Court and to answer any questions they may have. We strive to be accessible beyond business hours, even providing our cell phone numbers and email addresses to our clients to facilitate after hours communication. Contact us to schedule a free initial consultation to discuss the circumstances surrounding your Shawnee DUI charge. After hours appointments are available upon request.
The most important thing to remember in any Shawnee 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 Shawnee DUI attorney.
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Shawnee, Kansas Driving Under the Influence charges/arrests involve two distinct and separate aspects:
(1) The Criminal Proceedings , which are resolved in the Shawnee Municipal Court or Johnson County District Court. This is the portion where the prosecuting jurisdiction is trying to put you in jail, force you to complete probation, levy significant fines, and require alcohol treatment and/or classes.
(2) The Administrative Hearing with the Kansas Department of Revenue's Driver's License Bureauwhich can result in the suspension of your driving privileges. It is extremely important to pay attention to both the criminal court case and the administrative driver's license case, as the deadlines, rules, procedures and burdens of proof are entirely different and usually unrelated. At the administrative level, the Kansas Department of Revenue seeks to take your license from you. They do not care if you have no other means to get to work and they do not care if your family will be affected by the loss of your license.
The Dept. of Revenue is not concerned that you may not have any 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 Shawnee and Kansas in general - the suspension of a driver's 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 and taking it is only effective with the most serious repeat offenders.
You can win one and lose the other, win both, or lose both.
Our contact with a potential client begins with a no-cost meeting in our office to discuss the details of their case. At this meeting we will discuss the potential penalites involved, the facts as our potential client remembers them, and the legal issues that may come into play in the case. At this meeting, we provide a fee agreement which the potential client may take with them.
The first step in our representation involves entering an appearance in court and requesting an administrative hearing with the Kansas Department of Revenue which will almost always allow our clients to keep driving with a valid license. We also request discovery which includes the police reports, in-car videos, booking videos, and other relevant evidence in the case. We regularly provide our clients with copies of these documents for their records.
The next step involves evaluating the case for a potential resolution. This step really never ends, but it is focused when we get the police reports and videos back from the Shawnee police department and we analyze them for potential weaknesses in the prosecution's case.
If you are charged with a DUI in Shawnee, you are facing:
1. Jail time - A first time conviction is punishable by up to 6 months in the county jail. This office has had considerable success in reducing penalties levied for first time convictions to the statutorily minimum 48 hours in jail. In some cases, a skilled Shawnee DUI attorney can secure the CWIP (community weekend intervention program) class which allows the jail time to be served in a a facility other than the county jail. Jail may also be avoided by signing a diversion agreement with the City of Shawnee which does not count as a conviction on your record.
A second conviction for an Shawnee, DUI (or any other DUI in Kansas) is a Class A misdemeanor offense with a sentence as long as one full year. KSA 8-1567 states that the defendant must serve at least five consecutive days in custody before probation is granted, but after hearing arguments from a skilled Shawnee DUI attorney, the Shawnee Municipal Court Judge can order the defendant to serve only 48 hours in custody followed immediately by at least 3 consecutive days of work release or house arrest to satisfy the statutory 5-day requirement. As with a first offense, completion of a substance abuse treatment program is required.
A third conviction for an Shawnee DUI (or any other Kansas DUI) is a felony punishable by up to 12 months in prison. The mandatory minimum underlying sentence is 90 days; however, after hearing arguments from a skilled Shawnee DUI attorney, the judge can order the defendant to serve 48 hours in custody followed immediately by at least 88 consecutive days of work release or house arrest to satisfy the 90-day custody requirement. A third time conviction will be prosecuted in Johnson County District Court as Shawnee Municipal Court does not usually have jurisdiction to preside over felony proceedings.
A fourth conviction for an Shawnee DUI is also a felony. Like a third conviction, there is a minimum sentence of 90 days and a maximum sentence of 12 months in prison. However, after arguments by an Shawnee DUI attorney are made, a person convicted of a fourth or subsequent DUI, might be ordere to only serve 72 hours in jail before being eligible for a work release program. Penalties for a fifth or subsequent
2. Fines - A first time DUI in Shawnee carries a fine between $500 and $1000.
The fine for a second DUI conviction in Shawnee can range from $1,000 to $1,500.
The fine for a third conviction for DUI in Johnson County ranges from $1,500 to $2,500.
The fine for a fourth or subseqent DUI conviction in Johnson County is at least $2,500.
3. Suspension of your drivers license - a first time conviction or Intoxilyzer test failure carries a minimum suspension of 30 days with a 330 day restriction (school, work and a few other items), while refusing to take the Intoxilyzer carries a 1 year suspension. Subsequent breath test failures or refusals can result in a lifetime driver's license revocation. More details are available below, but the most important thing to remember is this: In most Shawnee DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long.
4. Probation Costs and Hassles - In cases where probation is granted, you will likely be ordered to meet with a probation officer one or more times each month. You may also be required to submit to urinalysis (UA's) and breathalyzers upon demand. You will be ordered by the court to stay out of establishments that serve alcohol. You will also be ordered to complete a "drug and alcohol evaluation" and follow the recommendations which will likely include classes and inpatient or outpatient treatment.
5. Court Costs and Monitoring Fees - In addition to the fines prescribed by the Kansas DUI statutes, you will be responsible for court costs and monitoring fees which can range into hundreds or even thousands of dollars.
6. Social Effects - A Johnson County 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 convictedof 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 Shawnee DUI cases, you only have 10 business days from your arrest to request a hearing to determine if your license will be suspended, and if so, for how long. 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.
How Long Will Your License Be Suspended?
The term of driver's license suspension that you face depends upon several factors: (1)whether you failed the chemical test or whether you refused to submit to it; (2)whether this is your first or subsequent test failure or refusal; and (3)whether you are over or under 21 years of age. The length of the suspension ranges from 30 days to permanent revocation of driving privileges, please call us for more information about your specific case. People charged with a Kansas DUI are entitled to an administrative hearing with the Kansas Department of Revenue where the driver or their Kansas DUI lawyer can challenge the grounds upon which your license is suspended.
If you or your Kansas DUI attorney requests an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing which is frequently scheduled months after the request.
In Johnson County, Shawnee DUI Administrative Hearings are usually scheduled at least 3 months after the Shawnee DUI is charged, although recent experience has suggested that the wait is as long as 4 months. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case. If your license was valid before the charge, it will likely remain valid until the hearing, regardless of its outcome or the outcome of your criminal case.
The Administrative Hearing
The difficult part of the Department of Revenue administrative hearing is that the burden of proof is shifted- instead of the state having to prove that you are guilty and your license should be uspended, you have to the burden of proving that your license should not be taken from you.
At the Kansas DUI administrative hearing regarding your Shawnee DUI charge, a number of issues can be raised by your DUI lawyer in your defense, depending on the facts of your case. These issues include:
(1)whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs;
(2)whether you were given the legally required notices before being asked to submit to testing;
(3)whether your actions constituted a legal refusal to take the test;
(4)whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE);
(5)whether there were other due process or constitutional issues.
If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you or your Shawnee 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 Shawnee, Kansas DUI defense lawyer as soon as possible after your Shawnee DUI arrest.
Possible Suspensions from a Shawnee DUI include:
INTOXILYZER 8000 TEST FAILURE IN SHAWNEE
1st time Intoxilyzer 5000/8000 test failure in Shawnee between .08 and .149: Driving privileges are suspended for 30 days and restricted to driving to and from work, during the course of employment, and to school for 330 days. The reinstatement fee is $100.00.
1st time Intoxilyzer 5000/8000 test failure in Shawnee above .150: Driving privileges are suspended for one year followed by one year of restriction to only driving a vehicle equipped with an ignition interlock device.
2nd and 3rd test failures in Shawnee between .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $200.00.
2nd test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 2 years of ignition interlock.
3rd test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 3 years of ignition interlock.
4th test failure in Shawnee of .08 and .149: Driving privileges are suspended for one year followed by one year of restriction to driving only a motor vehicle equipped with an ignition interlock device. The reinstatement fee is $300.00.
4th test failure in Shawnee of .150 or higher: Driving privileges are suspended for one year followed by 4 years of ignition interlock.
5th test failure in Shawnee : Permanent revocation. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
TEST REFUSAL IN SHAWNEE
1st Time Refusal in Shawnee: Driving privileges are suspended for one year. The reinstatement fee is $400.00.
2nd Time Refusal in Shawnee: Driving privileges are suspended for two years. The reinstatement fee is $600.00.
3rd Time Refusal in Shawnee: Driving privileges are suspended for three years. The reinstatement fee is $800.00
4th Time Refusal in Shawnee: Driving privileges are suspended for ten years. The reinstatement fee is $1,000.00
5th Time Refusal in Shawnee: Driving privileges are suspended FOREVER. The license is suspended for the rest of the person's lifetime and there is no provision currently provided in the law for reinstatement.
For experienced and aggressive legal representation in the defense of a DUI charge in Shawnee, 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 which the City of Shawnee has adopted:
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.
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