Brandan Davies Overland Park Criminal Defense Lawyer


Brandan Davies Sept. 1, 2018

A typical DUI stop is going to occur usually at night. The officer will pull the person over and from the outset; the officer is going to be looking at twenty-four different indicators to see if the person is intoxicated while the vehicle is in motion. When the officer pulls the person over, they are going to look at the time duration on which the person took to pull over, they are going to enter into a brief interaction with the person at the start, they are going to ask for their license and registration looking to see if the person is fumbling for those items or cannot find them or providing incorrect information. Usually then the officer is going to say that they smelled the odor of alcohol emanating from the person’s breath.

After they smell alcohol, they are going to do what they call Divided Attention Test. That is going to be your ABCs. Say your letters are from C to Q without stopping, without singing and stopping at Q, something like that. Then they are going to have them do a numbers test, which is going to be something like count from 99 to 79 in reverse and stop on 79. Then they will have a person do a finger dexterity test, in which they will touch the index finger to their thumb and go from one finger all the way to the pinky 1, 2, 3, 4, 4, 3, 2, 1. Those are not indicators of intoxication, they are indicators that a person cannot do two things at once.

Even if the person completes the test correctly, they can still pull them out of the car and have them take a field sobriety test or they will request the person to take field sobriety tests. The person can refuse if they want to, and if there is no negative inference drawn or anything like that if the person refuses. They will start with a Horizontal Gaze Nystagmus which is not admissible in Kansas courts. It has been equated to the magic eight-ball by the Supreme Court. They will still do that anyway because that is what they are trained to do. Then they are going to have them do a Walk and Turn test, in which a person is going to put the right food in front of their left foot, take nine steps, turn around and walk back with some other specific instructions.

The officer will then clue them for any mistakes on the test. After the officer has done that, they are going to have them do a One Leg Stand test. The One Leg Stand test, the officer will clue them for any mistakes they made on that. If the officer believes that the person is intoxicated at that point, then based on those tests and the responses in the divided attention test and their responses just at the outset, then they are going to have them do a PBT, which is a Preliminary Breath Test. Preliminary breath test, in Kansas, is not admissible, is not evidentiary, but they can use it to establish probable cause to arrest somebody.

The person can refuse that test; if they refuse that test, they are usually looking at a fine in most cities having made a refusal of the PBT an infraction. So if a person takes the test and fails or even if they refuse to take the test, then the officer will usually arrest them at that point if they have a probable cause to believe that person is intoxicated to the level that it is unsafe to operate a vehicle. Then they will take them back to the station, they will read a DC70 to them, an implied consent advisory. They will then have the person submit to a breath test with an Intoxilyzer 8000. Some of the new departments are going to Intoxilyzer 9000, get the results of that test, then they will also give the person a DC27, which is a Notice of Driver’s License Suspension if the person blows between over 0.08%.

They will send the person on their way. The only way they will detain that person further than that is if they make an independent determination that the person is unsafe or puts other in harm’s way. Usually they will let the person bond. In other words, they will pay a cash bond or on a credit card, then release them to a family member, or they can just walk out of there if they have a taxi and they are not unsafe or if they are a Kansas resident, then they will not make them pay a bond, they will just issue them a ticket and let them go. Then that person will have fourteen days from the date that they got the DUI to request an administrative hearing on their license. If they do not request an administrative hearing, then they will generally lose their license.

That is when the clock starts running, and that is when most people come into my office. When they come into our office, we are going to go over the entire case and we will talk a lot about driver’s license suspension and that is one of the main things that people are worried about. We will file their administrative hearing request; they will obviously retain our law firm and go about their regular life. We will get the police reports and file the administrative hearing request, handle the administrative side of it, get the police reports, get the videos, get any dash cams or anything that they have on you. The police are going to use or the state is going to use we are also going to get a copy of it and use that too. We will look at it, evaluate it, and go over it with the client and present options to the client.

Usually, if it is a first or second time DUI, the client will not have to go to court. For the first couple of court appearances, we will go for them. By that time, I have usually have some sort of offer from the state or the city and then we will convey that offer to the client, talk to them about their options, evaluate their case and basically give them odds or percentages of what they should do and what might happen with their case. It is up to the clients to decide what they want to do from there. There are a couple of ways that it can work out from there. If it is all risk analysis at that point, how much risk the person can endure and how far they are willing to take it. If they have a good case for trial, then we will go and try the case.

If we win, then the person does not have any penalty on their license in the criminal side and their case is dismissed. If we lose the trial, then a lot of times we can appeal to the district court and have a de novo trial. Aside from trials, Kansas limits what really can be done as far as plea bargaining, it does not allow it. So the person is going to do one of a couple of things. They will either plea, which means plea to the DUI and then we will try to mitigate the sentence or mitigate the damage to the person to their normal course of life and try to keep them out of jail basically.

The other option is if they do not plea, do what they call a Diversion, and a diversion is a contract between a person and the city or state which is prosecuting them, in which the person will jump through some hoops, do some counseling, a drug and alcohol evaluation, pay some money and usually do a victim impact penal program. Then the ultimate outcome will be that their case was dismissed.

For more information on DUI Process 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.