Brandan Davies Overland Park Criminal Defense Lawyer


Brandan Davies April 4, 2019

If it is a third time DUI or higher, it can become a felony depending on how you received those DUIs. Sometimes you can get a child endangerment if you have your child in the back in the car, obviously if you get involved in a wreck and hurt somebody, you can be charged with aggravated assault or aggravated battery. That is a completely separate charge other than the DUI, but it is a direct relation to the DUI. Mostly, if you hurt somebody, if you have a bunch of them in your past, or if you are in a wreck or your children are in the car or something like that, you can pick up additional charges.

What Are The Potential Penalties For A DUI Conviction In Kansas?

As far as penalties on DUI, it is going to depend on how the number of DUIs you have had. On a first time DUI, it is a Class B misdemeanor, which is punishable by up to six months in jail and that has a mandatory minimum of two days in jail. If you have a second time DUI, it is going to be a Class A misdemeanor, which is the most serious misdemeanor in Kansas. The worst thing that can happen to you is you do a year in jail. Anything past that depending on the timeframe in which you catch the third DUI can be a felony if it is before July 1st 2001 and those prior convictions do not count, but anything after, if you have three or more DUIs, it is usually a felony.

The worst thing that can happen to you on a felony DUI is if it is just a felony DUI, no aggravated battery or anything like that, it is a year in jail. That covers the penalties pretty well. There are mandatory minimums on every single DUI and they get worse on each number of DUIs that you get. But those are the worst things that can happen to you. As far as the field sobriety test, the NHTSA manual is going to outline the approved tests in Kansas. There are three that are commonly given, but only two really have much weight. The first one is the Horizontal Gaze Nystagmus Test (HGN Test). That is the one that most people have heard of. That is where an officer puts some sort of object in front of your eyes as you stand still, and you place your arms down to your side and then it tracks the movement of your eyes as he moves the stimulus of the pen or the finger or whatever he is using back and forth.

In Kansas, that is not a test that is given any weight. The Supreme Court has equated the HGN test to the Magic 8ball or an Ouija board that is actual language out of the case they reviewed concerning the HGN test, so it is virtually given no weight and it never gets in as admissible. The results of the HGN never are admissible in Kansas Courts. So we do not deal with that much. The second test is going to be the Walk and Turn Test, and that is where an officer is going to have you put your right foot in front of your left foot, arms down to your sides and then they give you instructions on how to do the test, and then he will have you walk nine steps heel to toe, turn around with your foot and pivot and then return nine steps back as he counts the steps out loud. The most common mistake is the person will begin the test before they are instructed to do so because the instruction takes so long to explain.

Other common mistakes will be to keep your foot planted and make a small series of steps to turn. Most people will make mistakes on that. There are several different mistakes you can make not walking heel to toe or stepping off the line. There are various different clues that an officer can indicate that if you have this specific number of clues, then you do not fail the test, but it is an indicator that you have been consuming alcohol or you are intoxicated to a level that you are unsafe to operate. The third test is going to be the One Leg Stand test, that is where an officer is going to have you pick a foot and stand, lifting one foot off the ground and keeping your foot parallel to the ground about ten inches from the ground and then look at our foot and count out loud.

The common mistakes in that test will be that a person puts their foot down too soon because the officer is not required to instruct them on how long to keep their foot up. The test requires that they do over thirty seconds, but the officer is not required to tell them to do it for thirty seconds. Other common mistakes will be to sway or to lift your hands above six inches from your body. Those are the three tests that are often commonly administered, but unlike I said, only the last two are really given any weight.