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DUI
Frequently Asked Questions
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| Q:
What is a DUI? |
| A:
In Kansas, the charge of Driving Under the Influence
of Alcohol or Drugs (DUI) means that you operated
or attempted to operate a vehicle when, because
of the ingestion of drugs or alcohol, you were incapable
of safely doing so. This incapability may be shown
either by proving that your blood alcohol level
was.08 or above, and/or from other evidence, such
as poor performance on field sobriety tests, poor
driving skills, your physical appearance, and statements
that you made to the officer.
In order to defend against such
a charge, you must be ready and able to demonstrate,
either through independent witnesses who can attest
to your lack of intoxication, or through critical
examination of the results of the Intoxilyzer
or blood tests; the precision and proficiency
with which the officer conducted the field sobriety
tests; the training and experience of the persons
who conducted the field sobriety tests; the constitutionality
of any stops, searches and seizures; and the credibility
and reliability of the statements of any witnesses.
As with any criminal charge, the
city or state bears the burden of proving the
charge against you. Because of an increased political
and public intolerance toward those who drink
and drive, however, defending against a DUI charge
has become more complicated, while the penalties
upon conviction have become more onerous.
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| Q:
What is the DUI Process? |
| A:
The most important thing to bear in mind with a
DUI is that it is a bifurcated proceeding. The Administrative
process pertains to your driving privileges and
is completely independent of the criminal process.
In other words, you might be able to win at one
level and lose at another. The burdens of proof
and evidence admissible are also completely different.
If you have been arrested for DUI, there are two
distinct and separate aspects of your case: the
criminal charges, which can result in fines, jail
time, and loss of driving privileges; and the administrative—or
civil—side, which can result in the suspension
of your driving privileges. It is extremely important
to pay attention to both tracks on which your case
is proceeding. |
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| Q:
What Are the Potential Criminal Penalties? |
| A:
Aside from the administrative suspension of your
driving privileges, the criminal charge of DUI carries
fines, potential jail time, suspension of your driving
privileges, and the potential impoundment of your
vehicle. The amount of fine and length of the jail
sentence are determined, in large part, by whether
you have previously been convicted, or placed on
a diversion for, DUI. It no longer matters whether
a prior conviction was within five years—now,
all prior DUI convictions and DUI diversions count,
regardless of how long ago they occurred.
First Convictions:
A first conviction for DUI is a Class B misdemeanor.
The potential sentence is 48 hours to six months
in jail. The person must serve at least 48 hours,
unless the court orders order that the person
complete 100 hours of community service instead
of the term of imprisonment. The fine for a first
conviction ranges between $500 and $1,000. Upon
a first conviction, driving privileges are suspended
for 30 days, followed by 330 days of restrictions.
You will also be required to undergo a drug and/or
alcohol evaluation and will have to complete whatever
treatment is recommended by the evaluator.
Second Conviction:
A second conviction for DUI is a Class A misdemeanor.
The potential sentence is 90 days to one year
in jail. The person must serve at least five days,
but after 48 hours the judge can order that the
remainder of the sentence be served on house arrest
or in a work release program. Completion of a
substance abuse treatment program is required.
The fine for a second conviction ranges from $1,000
to $1,500. Upon a second conviction, driving privileges
are suspended for one year followed by one year
of interlock restrictions.
Third Conviction:
A third conviction for DUI is a felony. The sentence
includes 90 days to one year in jail. Ninety days
imprisonment is mandatory, but after 48 hours
in jail, the judge can order that the remainder
of the sentence be served in work release or on
house arrest. The fine for a third conviction
ranges from $1,500 to $2,500. Upon a third conviction,
driving privileges are suspended for one year
followed by one year of interlock restrictions.
Fourth Conviction:
A fourth conviction for DUI is also a felony.
Like a third conviction, there is a minimum sentence
of 90 days. A person convicted of a fourth or
subsequent DUI, however, must serve 72 hours in
jail and then may be placed in a work release
program. The fine for a fourth conviction is $2,500.
Upon a fourth conviction, driving privileges are
suspended for one year followed by one year of
interlock restrictions. If there is a fifth conviction,
driving privileges are permanently revoked.
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| Q:
What are the Administrative Proceedings? |
| A:
The administrative proceedings are the proceedings
which are brought by the Department of Revenue,
Driver Control Bureau, and which affect the suspension
of your driving privileges.
The length of suspension that
you face depends upon whether you refused the
chemical test or whether you failed the test,
whether this is your first test failure, and whether
you are over or under 21 years of age. The time
of suspension of driving privileges, depending
on these factors, ranges from 30 days to one year.
You have a right, however, to an administrative
hearing in which you can challenge the grounds
upon which your license is being suspended. If
you are successful at the hearing, your license
may not be administratively suspended at all.
When you were arrested, the officer
should have given you a pink form, called the
DC-27. As described on the back of that form,
you must send a letter requesting an administrative
hearing to the Kansas Department of Revenue within
10 days of the day you received the DC-27 or your
driving privileges will automatically be suspended.
If you request an administrative
hearing in a timely manner, your driving privileges
cannot be suspended until a decision has been
made by the hearing officer. Prior to the hearing,
you can subpoena certain documents and witnesses
who may have information about your case. At the
hearing, a number of issues can be raised in your
defense—depending on the facts of your case—including,
but not limited to, whether 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, whether you were
given the statutorily required notices, whether
your actions constituted a legal refusal to take
the test, whether the testing equipment and the
officer operating the machine were certified by
the Kansas Department of Health and Environment
(KDHE), whether the testing procedures were in
substantial compliance with KDHE rules and regulations,
whether the test result was .08 or greater, and
whether you were operating or attempting to operate
a vehicle, and due process or other constitutional
issues.
Again, it is extremely important
to request the administrative hearing within 10
days. Failure to do this will result in the suspension
of your driving privileges without a hearing.
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| Q:
What Happens to Juvenile Drivers with a DUI? |
| A:
Juveniles who are at least 14 but not yet 18 years
of age, who are charged with DUI, are tried in adult
court, rather than juvenile court. A juvenile’s
sentence, however, cannot be longer than 10 days
and can only be served in a juvenile detention facility.
The court has the authority to revoke or suspend
a juvenile’s driving privileges, upon conviction
for DUI, for a period of up to one year. Instead
of suspension, the court may impose restrictions
on a juvenile’s driving privileges. |
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| Q:
What About Drivers Under 21 and DUIs? |
| A:
It is unlawful for any person under 21 to operate
or attempt to operate a vehicle with a breath or
blood alcohol content of .02 or greater. If a driver
under 21 has a BAT of .02 to .079 there are no criminal
penalties, but driving privileges can be suspended.
If the BAT is between .02 and .08, driving privileges
may be suspended for 30 days on the first occurrence,
and one year on any subsequent occurrence. If a
driver has a BAC of .08 or above, driving privileges
can be suspended for one year.
In order to avoid an automatic
suspension of driving privileges, you must request
an administrative hearing within 10 days of the
day you were stopped. If you request a hearing,
the basis for the suspension may be challenged.
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| Q:
If the case against me is so strong that is not
possible to beat the charges in the court of law,
what other options do I have? Will I go to jail
for a minimum of 48 hours? |
| A:
No, you may qualify for a Diversion. If you have
never been convicted of DUI, have never entered
into a diversion contract for DUI before, and were
not involved in an accident or collision resulting
in personal injury or death, you may be eligible
to participate in a DUI diversion program. Diversion
is essentially a contract between the county or
city and the person charged with DUI in which the
person charged gives up his or her right to a speedy
trial and his or her right to a jury trial, in exchange
for an opportunity to avoid a conviction for DUI.
Under the diversion agreement, you will be required
to pay a fine; attend an alcohol and drug safety
action program or treatment program, or both; use
no alcohol or drugs; and fulfill whatever other
terms and conditions the city or state requires.
If, at the completion of the diversion period—usually
one year—you have completed all the requirements
of the contract, the criminal charge of DUI is dismissed.
If you do not successfully do all that is required
of you under the contract, your case will be placed
back on the trial docket and the criminal case against
you will be reinstated and your trial will be conducted
on stipulated facts. |
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| Q:
What About Expungement of a Prior DUI Conviction? |
| A:
A conviction for a DUI can be expunged, or eliminated
from your criminal record—for most purposes,
five years after you have either been released from
custody or completed your term or probation or postrelease
supervision—whichever came last. The expungement
does not occur automatically, but will only happen
if you file a motion with the court, and demonstrate
that it is in the best interest of justice to expunge
your conviction. Once your arrest and conviction
is expunged, you need not reveal the fact that you
were arrested or convicted except under very specific
situations that are provided by law. The expunged
conviction, however, will still be included in your
criminal history if you are ever again convicted
of a crime. |
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