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Summary of Kansas Impaired Driving Statutes.

COMMON ACRONYM(S) USED TO DESCRIBE "DRUNK DRIVING":
Driving under the influence (DUI), driving while impaired (DWI), operating under the influence (OUI)

SOURCE OF LAW:
State criminal law is found at K.S.A. 8-1567. Many municipalities have adopted the Standard Traffic Ordinances (STO), wherein the DUI ordinance is found at STO § 30, which is very similar to the state statute. Driver's license law and administrative procedures are found at K.S.A. 8-1001 et. seq.

PROHIBITED VEHICULAR ACTIVITY:
"Operate or attempt to operate any vehicle." Operate is defined to mean driving, which may be proven by circumstantial evidence. Driving requires movement of the car whereas attempting to drive required trying to move the car but failing.

COVERED VEHICLES OR DEVICES:
Kansas statute covers a "vehicle", which means a motor vehicle. Municipalities can broaden the definition of covered devices, with the City of Wichita even outlawing non-motorized devices.

COVERED LOCATIONS:
Public or private property.

IMPAIRED DRIVING OFFENSES:

1. Driving or attempting to drive with an alcohol concentration in the person's blood or breath as shown by competent evidence is .08 or more.
2. Driving or attempting to drive with an alcohol concentration of the person's blood or breath is .08 or more as measured with in 2 hours of time of operating or attempting to operate a vehicle.
3. Driving or attempting to drive while under the influence of alcohol to the degree that renders the person incapable of safely driving a vehicle.
4. Driving or attempting to drive under the influence of any drug or a combination of drugs to a degree that renders the person incapable of safely driving a vehicle.
5. Driving or attempting to drive 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.

 

ALTERNATIVE PLEADING:
The first 3 categories of driving under the influence of alcohol found in footnote 7, 8, and 9 may be alternatively pled.

DEGREE OF IMPAIRMENT REQUIRED:
The person must be under the influence of alcohol alone, drugs alone, or the combination of alcohol and drugs to a degree that renders them incapable of safely driving.

PENALTIES FOR OFFENSES:

1. 1st conviction: Jail-minimum 48 consecutive hours in jail to maximum 6 months or 100 hours of public service, fine $500.00 to $1000.00, alcohol evaluation - $150.00, alcohol classes - $150.00, court costs, regular driver's license suspended 30 days and restricted 330 days, CDL revoked 1 year.
2. 2nd offense: Jail-minimum of 90 days that may be paroled to 5 consecutive days to maximum 1 year, house arrest or work release may be granted after 48 consecutive hours imprisonment, fine $1000.00 to $1500.00, alcohol evaluation - $150.00, treatment, court costs, regular driver's license suspended 1 year and interlock 1 year thereafter, CDL permanently revoked.
3. 3rd offense: Jail-minimum 90 days to maximum 1 year, house arrest or work release may be granted after 48 consecutive hours for a 3rd offense, fine $1500.00 minimum to $2500.00 maximum, treatment, costs, regular driver's license - 1 year suspension followed by 1 year interlock, CDL - permanent revocation .
4. 4th and greater offense: Jail-90 days minimum and 1 year maximum, work release may be ordered after 72 consecutive hours imprisonment, post-release supervision of 1 year by Kansas Secretary of Corrections, $2500.00 fine, costs, treatment, regular driver's license - 1 year suspension followed by 1 year interlock for 4th offense, 5th offense requires permanent driver's license revocation. CDL-permanent revocation.

 

DIVERSION: This form of deferred prosecution is offered for person never having been diverted or convicted of DUI who was not involved in an accident involving personal injury or death. Some counties and municipalities have other rules and some do not offer a diversion. Costs and terms of diversions vary but typically include a diversion fee, an application fee, the evaluation, classes or treatment, court costs, and supervision fee. Driver's license is not suspended although it can be suspended by ancillary administrative action. According to a Kansas Attorney General Opinion, CDL drivers are not eligible for diversion.

ADMINISTRATIVE DRIVER'S LICENSE PENALTIES:
Administrative driver's license suspensions and restrictions are served concurrently with criminal sanctions.
They are as follows:

1. 1st occurrence - test failure: 30-day suspension followed by 330-day restriction to and from employment or schooling, in the course of employment, during a medical emergency, or to and from probation or parole meetings, drug or alcohol counseling, or alcohol and drug safety action program. In lieu of restriction described above, ignition interlock device may be substituted upon request of licensee.
2. 2nd, 3rd, and 4th occurrence - test failure: 1 year suspension followed by 1 year interlock.
3. 5th occurrence - test failure: permanent revocation
4. 1st occurrence - refusal to take or complete test: 1 year suspension
5. 2nd occurrence - test refusal: 2 year suspension
6. 3rd occurrence - test refusal: 3 year suspension
7. 4th occurrence - test refusal: 10 year suspension
8. 5th occurrence - test refusal: life time suspension
9. 1st occurrence - Under 21 years of age - .02 to .079 - 30 day suspension and 330 day restriction
10. Under 21 years of age - .08 or greater or 2nd occurrence over .02 - 1 year suspension
11. Commercial driver's licensee - 1st occurrence - 1 year revocation of CDL
12. CDL 2nd occurrence - lifetime revocation

LOOK BACK PERIOD: Lifetime for driver's license and criminal DUI.

STATUTORY PRESUMPTIONS: Breath test of .08 or greater is prima facie evidence that under the influence to the degree that renders a person incapable of safely driving. Breath test below .08 may be considered.

IMPLIED CONSENT LAWS:

1. Test permitted: blood, breath, or urine - one or more samples as designated by law enforcement officer
2. Type of advisement required - statutorily defined implied consent advisory must be given in writing and verbally
3. Admissibility of test result: it is admissible
4. Admissibility of refusal: it is admissible

 

BLOOD DRAW: Blood must be drawn by a person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person, a registered nurse or licensed practical nurse, or any qualified medical technician, including but not limited to, an emergency medical technician-intermediate or mobile intensive care technician or a phlebotomist. There are no statutes or regulations governing method of collection, chain of custody, or testing. You need to look to procedures of the collection entity and the testing facility.

POST-TEST RIGHTS: After the completion of testing, you are entitled to consult with an attorney or obtain an independent test. Sample capture is not required and is de facto extinct.

PLEA BARGAINING: Prohibited for purpose of reducing mandatory penalties of conviction.

--By: Douglas E. Wells

 

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