Brandan Davies Overland Park Criminal Defense Lawyer


Brandan Davies Nov. 2, 2018

When someone is charged with a DUI, they are going to be charged with operating or attempting to operate a vehicle in which they are intoxicated to a level on which they are unsafe to operate that vehicle.

How Does The Blood Alcohol Concentration Level Figure In A DUI Charge?

There are three ways you can get charged with a DUI in Kansas. The first way is drugs. You can get charged with a DUI if they believe that you are high on drugs. The way they determine that is they have a person put them through a battery of tests. Usually if they are smart, it is done by a DRE which is a drug recognition expert that is a special classification for an officer. They go to special classes for that. The second way a person is charged with a DUI is the most common way that people know, which is a person gets pulled over, they have to take a breath test, they take a breath test, that breath test has a result that they are over the legal limit which in Kansas is 0.08%. Then, the presumption will be that they are intoxicated to a level they are not safe to operate the vehicle.

The third way is what they call a totality of the circumstances of a DUI. It is, if a person is smart enough to refuse the breath test, so the cops do not have or the state does not have some sort of scientific evidence that the person is intoxicated and then the cops are going to essentially look at the entire situation. They are going to look at bloodshot eyes, slurred speech, odor of alcohol on your breath, admission of alcohol consumption, performance on the field sobriety tests so on and so forth. They say, “Hey, we don’t have any scientific proof that this person is intoxicated, but if you look at all of these things as a whole, then you conclude that the person was operating a vehicle or attempting to operate a vehicle in which they were intoxicated to a level that it was unsafe to operate the vehicle.”

Drivers’ License Ramifications Associated With A DUI Charge In Kansas

They are going to take the driver’s license. The police will take it out of your wallet and send it into the Kansas Department of Revenue and with a form called DC27 form. They are going to issue you a pink copy, it is going to have a lot of fine print on it and that is going to say, “This is a temporary license”. In other words, thirty days from the date of issuance, the date the officer give it to you, your driving privileges are suspended. It is temporary. It will say in the fine print that you only have fourteen days to contest the license suspension. If you miss that, no matter what happens, if you have a stroke the next day and you are in a hospital for a month, so you never had an opportunity to request an administrative hearing, the state does not care. They will suspend your driver’s license.

So you only have fourteen days, it is really a hard timeline. As far as what happens next is that most people go and talk with a lawyer, the lawyer then requests an administrative hearing. They are going to request that in person and they are going to ask that the officers be subpoenaed to be there. Sometimes that is your best bet at winning them if an officer will not show up. Once you request the administrative hearing, they will set the hearing date; it is usually within couple of months. With that date, they will send your lawyer the date. Then the hearing will be conducted on that date. If it does not, your lawyer has the ability to continue it one time and that will give you another couple of months.

At the administrative hearing, the onus is on you to prove that you were not intoxicated. It is a more likely than not standard. So it is quite different than the criminal side. The criminal side, the state has to prove beyond any reasonable doubt every single element of the offense. In other words, you were operating or attempt to operating a vehicle, and you were doing so and you were intoxicated to a level that you were unsafe to operate that vehicle. So they have a high burden of proof and you do not have to prove anything. At the administrative side, you have to prove that you were not intoxicated and you have to prove it by more than fifty percent, so that is tough.

A lot of time, your best bet is not to prove that you simply want to prove your case; it is to find a deficiency in the DC27. In other words, they made a mistake on the form and you can use that to your advantage to sometimes keep your driver’s license. So if you win your administrative hearing, you get to keep your driver’s license. If you still lose your DUI case in the criminal court, then you will lose your driver’s license, so you have to win both cases to keep your driver’s license. If you lose your administrative hearing and they affirm the suspension, one of two things can happen.

You can just let it go, after thirty days, after they affirm that suspension, then your license will actually start being suspended. The suspension is going to be based on two things; how many DUIs you have had and if you blew and if you did blow, how high you blew. There are two things you can do. One is to let it go, the other one is to appeal and go to the district court. At the district court, you can have a hearing in front of a district court judge to decide whether your license should be suspended or not.

What Is The 24-hour DUI Detection And Standardized Field Sobriety Testing Program?

NHTSA (National Highway & Traffic Safety Administration) has a program for all the police officers to basically learn and get certified so that they can administer this standardized field sobriety test. I went to that same training; if I was a police officer, I could go and give these tests to people and score them to see if they passed or failed. There are a few officers that know exactly how to do it, but just the book for the training is two to three hundred pages long. If you think that an officer is not going to make a mistake on a standard field sobriety test, generally they do. If you have been to the same training, then you kind of know where the holes are, you know where the mistakes can be made.

For more information on DUI Charges In Kansas, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (913) 451-9500 today.