Kansas State Delegates

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DUI Laws

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 3 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 three categories of driving under the influence of alcohol found in the preceding section 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 $750.00 to $1000.00, alcohol evaluation – $150.00, alcohol classes – $150.00, court costs, regular driver’s license suspended 30 days and then restricted to ignition interlock for 6 months, 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 $1,250.00 to $2,500.00, 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 $1,750.00 minimum to $2500.00 maximum, treatment, costs, regular driver’s license – 1 year suspension followed by 2 year restriction to ignition interlock, CDL – permanent revocation . A 3rd time DUI is a misdemeanor if the person has not had a DUI conviction within the previous 10 years, otherwise it is a felony.
  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 3 year interlock for 4th offense, 5th offense results in a one year suspension followed by 10 years of ignition interlock. 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:

 

TEST FAILURE BETWEEN .08 AND .149:

 

  1. 1st test failure: 30-day suspension followed by 6 month restriction to ignition interlock device.
  2. 2nd test failure: One year suspension followed by one year of restriction to ignition interlock device – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  3. 3rd test failure: 1 year suspension followed by 2 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  4. 4th test failure:  1 year suspension followed by 3 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  5. 5th test failure: 1 year suspension followed by 10 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.

 

TEST FAILURE OF .150 OR GREATER:

 

  1. First test failure: One year suspension followed by one year of restriction to ignition interlock device  Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  2. 2nd test failure: 1 year suspension followed by 2 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  3. 3rd test failure:  1 year suspension followed by 3 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  4. 4th test failure: 1 year suspension followed by 4 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.
  5. 5th test failure:1 year suspension followed by 10 year interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 45 days of suspension.

 

TEST REFUSAL

 

  1. 1st occurrence – refusal to take or complete test: 1 year suspension followed by 2 years of interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 90 days of suspension.
  2. 2nd occurrence – 1 year suspension followed by 3 years of interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 90 days of suspension.
  3. 3rd occurrence – 1 year suspension followed by 4 years of interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 90 days of suspension.
  4. 4th occurrence – 1 year suspension followed by 5 years of interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 90 days of suspension.
  5. 5th occurrence – 1 year suspension followed by 10 years of interlock – Eligible for limited restricted driving privileges to drive for work purposes with an interlock after 90 days of suspension.

 

LOOK BACK PERIOD: Any DUI conviction or diversion on or after July 1, 2001 will be counted. The Kansas Department of Revenue goes back lifetime on the administrative driver’s license actions.

 

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.

Updated By: Jay Norton May 2015

 

Appellate Court Cases: www.kscourts.org/cases-and-opinions

Driver’s License Administrative Agency: www.ksrevenue.org