Steps to Take When Charged With a DUI | Overland Park, Kansas

A QUICK AND SIMPLE LOOK AT A DUI CASE IN KANSAS

The most important thing to understand when charged with a DUI in Kansas is the severity of your situation. Every DUI conviction requires a mandatory jail sentence, even for a first-time offense. Every DUI conviction carries with it a mandatory driver’s license suspension. If you receive a DUI, you need to speak with an experienced DUI attorney as soon as reasonably possible. There are very strict deadlines that need to be met to preserve your rights and your ability to drive. When you get a DUI, you actually get two cases. The first is the criminal case, where you hire a lawyer who argues the case with a prosecutor in front of judge or jury and you either get punished or you don’t. The lesser known case is the Administrative case.

The Administrative Case:

The Administrative case begins immediately after you are arrested for suspicion of DUI. If you fail or refuse to submit to a breath test, an officer will issue you a DC-27 form. To find out more about the DC-27 form and its importance click here. Once you receive this form you have 14 days to request an administrative hearing on the suspension of your driver’s license. Once you have requested the hearing, the Kansas Department of Revenue will start sending you information. Most of the time you will receive three letters.

The first letter is an acknowledgement or receipt of your administrative request.
The second letter is a “Production of Documents” that must be provided before the hearing.
The third letter is notification of the date, time and location the hearing will take place.

If you keep these letters with you in conjunction with your DC-27, you can legally drive past the 30 days outlined in the DC-27.

On the date of your administrative hearing, your lawyer will present your case to the Administrative Law Judge and the Judge will either suspend your license or she won’t. If you win the administrative hearing, you will not lose your driver’s license on the administrative case. If you lose the administrative hearing and the Judge affirms the suspension, your suspension will not begin until 30 days after the hearing takes place. You have the right to appeal that decision if done within 14 days.

Will your license be suspended if you lose your administrative hearing?

It depends on a couple of factors. These factors include how many DUI offenses you have had in the past, if you submitted to a breath test, and what your BAC was at the time you submitted. If you want information on how long your license will be suspended click here.

How do you get your license back if it is suspended based on a DUI?

Most of the time you can get your license back, or at least your ability to drive in a limited capacity, a lot quicker than the full duration of the required suspension. You just have to do a couple of things first. If you want information on how to get your license back after it has been suspended click here.

The Criminal Case:

The criminal aspect of a DUI case is often the most intimidating. This is the part of the case in which the defendant has the most on the line. In the criminal case, if the defendant is convicted of DUI, they are looking at mandatory jail time, driver’s license suspension, and a conviction on their criminal record. Each one of those things individually has the ability to cause problems for a defendant at home or work, and can limit their future plans.

From start, to finish here is how the criminal case works.

Arrest: In most cases, a law enforcement officer pulls a person over suspected of DUI. (The National Highway Traffic Safety Administration recognizes 24 different indicators of DUI, before the officer pulls someone over). The officer will ask about the consumption of alcohol, note any physical traits he believed are indicative of intoxication, then have a suspect do some divided attention tests. (ABC and 123 Tests).

The officer will then ask the defendant to submit to standard field sobriety tests. There are three accepted tests:

Horizontal Gaze Nystagmus: The officer will provide a stimulus and have the defendant watch the stimulus. The officer is looking for indicators of intoxication in the form of small movements of the subject’s eyes. Caselaw has discredited this case in Kansas but it is still generally performed.

Walk and Turn Test: The officer will give complicated instructions to the defendant and instruct them to walk heel to toe for nine steps, make a series of small steps to turn around and walk back to their original starting spot. The officer will observe the person perform this maneuver and look for indicators of alcohol intoxication.

The One Leg Stand Test: The officer will give instructions to the defendant to stand on one foot and keep the other foot parallel to the ground and count aloud. The officer will observe the person perform this test and look for indicators of alcohol intoxication.

After the suspect performs these tests, or refuses to perform these tests, the officer will ask the suspect to submit to a PBT (Preliminary Breath Test). Click Here to learn more about Preliminary Breath Tests.

After the suspect either performs or refuses the preliminary breath test, the officer will make his arrest decision. If he believes he has probable cause to arrest the person for DUI, then he will place the suspect under arrest.

Post Arrest: After the officer arrests you and puts you in handcuffs, they will transport you to the police station. At the police station an officer will go over a lot of paperwork. One of the documents the officer will provide you is a DC-70 (Advisory of your Rights to refuse or take the breath test). This document provides information to you before you submit to or refuse an evidentiary breath test. To Learn more about the DC-70 advisory click here.

Once the officer has read you the DC-70 Advisory, he will ask you to submit to an evidentiary breath test. The results of the breath test will be evidence in your DUI case. After you have either submitted to the test or refused the test, the officer makes an independent determination that you are unsafe, and that they should release you on your own recognizance or after you post a bond. To Learn more about the Intoxilyzer Breath Test click here.

Out of Custody: After you are released from custody, the defense part of your case begins. This is where you hire a lawyer and prepare to position it for the best possible resolution.

Hiring a Lawyer: Once a suspect is out of custody, the first thing they should do is begin the search for a lawyer. It is always best to meet with more than one. When hiring a DUI lawyer you should look for a lawyer that limits their practice to criminal defense, DUI and traffic. DUI law changes often and you will be best served with a practitioner whom is up to date on new case law concerning DUI. Aside from that you should look for specialized training on DUI Defense. Look for the following credentials.

The lawyer has been certified by the National Highway Traffic Safety Administration to administer and score the Standard Field Sobriety Tests. (Less than 1% of lawyers have went through this extensive training)
The lawyer has went through a “Science of Breath Testing Course” and has been certified(Less than 1% of lawyers have went through this training)
The lawyer is a Member of the National College of DUI Defense.(College members represent the most experienced DUI defense attorneys in the country.)
The lawyer is a Member of the American Association of Premier DUI Attorneys.(Members go through specialized training and have access to DUI police training Manuals)
The lawyer is a Member of Super Lawyers.(Members are nominated by others lawyers and considered to be the best in their field)
The lawyer is a member of the National Trial Lawyers Association.(The NTLA awards the distinction to the “Top 100 Trial Lawyers“ in each state)

However, credentials aren’t everything. Make sure to sit down and talk with the lawyer and that they explain everything to your satisfaction. You will be working with your lawyer for months on your case, so make sure they are accessible and take time to listen to you.

Once you have hired a Lawyer: After you have retained a qualified defense attorney, the most important thing to do is listen to your lawyer and do what he or she tells you to do. If you follow that one simple rule, your entire case will go a lot smoother. After you have hired a lawyer and followed their instructions, live your normal life and let the lawyer do his or her job.

Here is a very simple version of how a DUI case can take place and your lawyer’s role in defending you.

Enter an appearance on the case: This is as simple as filing a notice with the court that your lawyer has been hired and will be representing you on the DUI charge.

File a Motion for a Continuance to obtain more time: This is common practice and will allow adequate time for your lawyer to investigate the DUI charge and review evidence in your case.

Request Discovery: This is the process of obtaining any evidence the prosecutor intends to use against you. Typical evidence in a DUI case would include a police report, officer notes, a video of the stop, et. cetra.

File a Motion for Discovery: Many times the discovery that is turned over by the city or state is incomplete. Evidence that is described in the original discovery may not be produced by the city or state. Also, training records, maintenance records and many other materials may be vital to the defense of your case. This is your chance to obtain them.

Review the Discovery and do research: Your lawyer will review the discovery and look for suppression issues. Often times, police make mistakes in their investigation that can lead to evidence being compromised or excluded all together.

Talk with the Prosecutor: After your lawyer has done a complete evaluation of the case, your lawyer will meet with the city or state’s lawyer to discuss resolving the case or at least obtaining the prosecutor’s thoughts on the case.

Present options to client: You have to remember that the ultimate choice resides with the client. Your lawyer can give you advice as to what to do but any pretrial resolution of the case is always the client’s decision.

Pretrial Motions: If you are not able to get an option that suits your interests, then your lawyer will try to control the evidence that will be in front of the judge at trial. During this part of the criminal process, your lawyer may file a motion to suppress evidence, a motion to dismiss, a motion in limine to limit the use of some evidence, or one of about 50 other types of motions. This is aimed at giving you the best chance at trial.

Put on a Trial: This is where your lawyer will defend your case in court. The State will present evidence of your guilt and your lawyer will try to discredit that evidence. Your lawyer has the ability to present evidence if he chooses, but he does not have to.

Sentencing (If Necessary) If you lose your case, then your lawyer will advocate for you at sentencing and try to mitigate the consequences of your conviction.

Appeal (If Necessary) If you lose your case you can always appeal. In some instances you can appeal and get a completely new trial and start this process all over.

What are the Possible Penalties for a DUI case?

In the state of Kansas, drunk driving is a serious crime that usually attracts harsh penalties. Depending on the defendant's the number of prior convictions, and other surrounding circumstances, a DUI conviction may result in any of the following criminal penalties and consequences:

Hefty fines and court fees
Jail time or imprisonment (Mandatory Jail Time on all DUI except a first time)
License suspension or revocation
Probation
Community service
Mandatory attendance at substance abuse programs or alcohol treatment classes
An ignition interlock device

Other possible ramifications of a drunk driving conviction include:

Increased auto insurance rates
A criminal record/history
Loss of scholarships or university acceptance
Increased difficulty in securing housing or employment opportunities
Loss of your rights to possess, carry, or own firearms
Increased difficulty in getting public assistance
Deterioration of personal and professional relationships
Ineligibility to obtain certain loans

An experienced Kansas DUI defense attorney can strategize an effective defense to fight your drunk driving charges in an attempt to help you avoid the severe penalties and consequences of a criminal conviction.

Hire an Experienced Criminal Defense Lawyer

Defending your drunk driving accusations without reliable representation is never advisable. A DUI conviction can result in loss of driving privileges, increased insurance premiums, increased difficulties in securing employment, and other harsh consequences. When arrested and charged with a DUI, retaining an experienced criminal defense attorney is imperative for proper guidance.

The attorneys at Roth Davies LLC have devoted their careers to protecting individuals charged with drunk driving from the worst possible penalties. As your legal counsel, they will review and investigate every aspect of your case and craft a strong defensive approach to fight your DUI charges. They will help you navigate the Kansas criminal justice system and work intelligently to represent you in every phase of the legal process.

In the state of Kansas, it is unlawful to drive or attempt to operate a vehicle while under the influence of alcohol or drugs. A defendant convicted of DUI may face severe penalties, including hefty fines, jail time, community service, license suspension, and other social consequences.

If you have been arrested and charged with a drunk driving offense, you need to hire a highly-skilled Kansas criminal defense attorney. The attorneys at Roth Davies LLC are dedicated to offering aggressive representation and knowledgeable legal guidance to clients facing DUI charges. Allow an attorney to fight vigorously to defend your legal rights, protect your driving privileges, and improve your chances of a brighter tomorrow.

Roth Davies LLC proudly represents clients across Overland Park, Kansas, and throughout Johnson County. Set up a one-on-one consultation as soon as possible.

What Proof Is Needed at a Driver's License Hearing After a DUI?

After a DUI arrest in Kansas, a critical component of the legal process is the driver’s license hearing, which addresses the administrative suspension of your driving privileges. The issues considered in these hearings are governed by K.S.A. 8-1020, which limits the scope of the hearing to specific questions, primarily based on the DC-27 form submitted by the arresting officer. Understanding the standard of proof and the legal thresholds applied during these hearings is crucial for building a strong defense.

Scope of the Administrative Hearing: Key Issues Considered

The administrative hearing following a DUI arrest is not a criminal trial but a separate process focused solely on whether your driver's license should be suspended. The Kansas legislature has limited the range of issues that can be addressed during this hearing, primarily focusing on the circumstances surrounding your breath, blood, or urine test and whether the officer had reasonable grounds to believe you were operating or attempting to operate a vehicle under the influence.

The specific issues addressed at the hearing differ depending on whether:

You refused to take the test (K.S.A. 8-1020(h)(1))
You failed a breath test (K.S.A. 8-1020(h)(2))
You failed a blood test (K.S.A. 8-1020(h)(3))

Common Issue Across All Situations: Operation or Attempt to Operate a Vehicle

In all three scenarios—test refusal, failed breath test, and failed blood test—the administrative hearing will consider whether the person was "operating or attempting to operate a vehicle." This is a fundamental question that must be addressed before any determination about license suspension is made. It is crucial to note that Kansas law does not explicitly require the officer to witness you driving the vehicle; merely having reasonable grounds to believe you were operating or attempting to operate the vehicle is sufficient to justify the test request and subsequent actions.

Proof Required for Test Refusal (h)(1): Reasonable Grounds

If you refuse to submit to a test after being arrested for suspicion of DUI, the officer must demonstrate that they had reasonable grounds to believe you were driving or attempting to drive while under the influence of alcohol, drugs, or both. This standard of proof is clearer in cases of test refusal because it directly ties into the officer's observations and reasons for initiating the DUI investigation.

The officer must certify these reasonable grounds on the DC-27 form, explaining why they believed you were operating a vehicle while impaired. This could include factors such as:

Erratic driving behavior
Odor of alcohol or drugs
Slurred speech
Bloodshot eyes
The individual’s failure to perform field sobriety tests correctly

If the officer can show that these observations led them to reasonably believe that the driver was impaired, the refusal of a test can result in automatic license suspension for one year.

Proof Required for Failed Breath Test (h)(2) and Failed Blood Test (h)(3): Unclear Standard

In cases where an individual submits to a breath or blood test and fails, the legal standard regarding whether the person was operating or attempting to operate a vehicle is less clearly defined under Kansas law. While the officer must still certify their reasonable grounds on the DC-27 form, K.S.A. 8-1020 does not specify the same explicit standard of proof as it does for test refusal cases.

However, despite the lack of clarity in the statute, reasonable grounds are still generally considered the benchmark. This interpretation is based on the language of the DC-27 form and previous Kansas court decisions. In practical terms, the officer’s observations and certification of reasonable grounds are likely to be scrutinized in both test refusal and test failure cases.

How Kansas Courts Define "Reasonable Grounds"

Kansas courts have consistently equated the term “reasonable grounds” with “probable cause”, a well-established legal standard that requires sufficient evidence or information to lead a reasonable person to believe that a crime is being, or has been, committed. Probable cause is the threshold law enforcement must meet before making an arrest or taking certain legal actions.

Key Court Cases Defining Reasonable Grounds

Kent v. Kan. Dept. of Revenue (2011):
In this case, the Kansas Court of Appeals clarified that reasonable grounds are synonymous with probable cause. The court explained that probable cause refers to facts, circumstances, and reasonable inferences that would lead a reasonable person to believe the individual has committed, is committing, or is about to commit a crime. In the context of a DUI, this means the officer must have a reasonable belief that the person was driving under the influence based on their observations.
Angle v. Kan. Dept. of Revenue (1988):
This case reinforced the notion that reasonable grounds should be interpreted as probable cause, drawing from both Kansas law and common law principles. The court also noted that probable cause is required under the Fourth Amendment for warrantless searches or seizures, including breath and blood tests in DUI cases. The decision emphasized that a DUI suspect's Fourth Amendment rights are protected during these tests, and the officer must meet the probable cause standard to justify the test request.
Huelsman v. Kan. Dept. of Revenue (1999):
The Kansas Supreme Court further confirmed that reasonable grounds and probable cause are essentially the same in the context of DUI cases. However, the court acknowledged that an officer might have reasonable grounds to request a test even if they do not have enough evidence to make a formal arrest. This distinction is important because the evidentiary standard for requesting a test is lower than the standard required for making an arrest, meaning that the officer’s reasonable belief alone can justify the test.

How Does Reasonable Grounds Affect the Administrative Hearing?

At a driver’s license hearing, the administrative officer will evaluate whether the arresting officer had reasonable grounds to believe you were operating or attempting to operate a vehicle while under the influence. The evidence presented may include:

The officer’s testimony about their observations of your behavior and driving.
Any field sobriety test results or preliminary breath test results (if applicable).
Any physical signs of impairment, such as the smell of alcohol, slurred speech, or poor coordination.

The officer must demonstrate that these facts and circumstances led them to reasonably conclude that you were impaired while driving or attempting to drive. If the officer meets this standard of proof, your license is likely to be suspended. However, if your attorney can successfully challenge the officer’s reasonable grounds—perhaps by showing inconsistencies in the officer’s testimony or evidence—you may avoid suspension.

Challenging Reasonable Grounds in a Hearing

Your attorney may use several strategies to challenge the reasonable grounds presented by the officer at the administrative hearing:

Disputing the Officer's Observations: If the officer’s observations are inconsistent or unconvincing, your attorney may argue that there was no probable cause to believe you were impaired. For example, if the officer cites erratic driving, but dashcam footage shows you driving normally, this could undermine their claim.
Questioning Field Sobriety Tests: Field sobriety tests are subjective and can be influenced by factors unrelated to impairment, such as fatigue, medical conditions, or uneven ground. By challenging the validity of these tests, your attorney can weaken the officer's argument for reasonable grounds.
Technical Errors in Testing: If the breath or blood test was improperly administered, or if the equipment was not correctly calibrated, your attorney may argue that the results should not be considered valid evidence.

Conclusion: The Importance of Reasonable Grounds in DUI License Hearings

Understanding the concept of reasonable grounds is crucial for defending against a DUI-related license suspension at an administrative hearing. While K.S.A. 8-1020 limits the scope of what can be contested, the officer’s certification of reasonable grounds is a pivotal aspect that can be challenged. If your attorney can show that the officer lacked sufficient reasonable grounds to believe you were driving under the influence, you may be able to avoid the harsh penalties of license suspension.

Given the complexities of Kansas DUI laws and the specific standards required in administrative hearings, working with an experienced DUI attorney is essential for protecting your driving privileges.

HOW DO YOU CHOOSE THE RIGHT DUI LAWYER FOR YOUR CASE?

When you are facing a DUI charge you have a lot on the line. Your reputation, crimial record, driver’s license, even your freedom are all at stake. You need an attorney that has experience and specialized training on your side. DUI law is an ever changing area of the law with continually evolving case law, complex scientific testing devices and voluminous data and law enforcement training manuals available. In short, there is a lot of information to know and apply when it comes to properly defending a DUI charge.

When it comes to choosing the best lawyer to defend your DUI charge these are some credentials to look for and consider. (Click Links to See Certifications)

1) National College of DUI Defense: College Members represent the most experienced DUI Defense attorneys in the county. The National College of DUI Defense is an invite only non-profit organization aimed at improving the criminal defense bar and to educating the public about DUI defense law as a specialty area of law practice.

2) National Highway Traffic Safety Administration Certification: DUI defense lawyers that have participated in this training are certified to administer and interpret the standard filed sobriety tests to NHTSA standards. Less than 1% of practicing attorneys have received this specialized training. The NHTSA program is the exact same program that law enforcement officers take. The certification takes 21 classroom hours to obtain and encompasses in depth training on the Horizontal Gaze Nystagmus (HGN) Test, Walk and Turn Test and the One Leg Stand Test.

3) Science of Breath Testing Course Certificate: DUI defense attorneys that have participated in this course have spent time working with the equipment law enforcement uses to administer breath tests on drivers suspected of DUI. If your lawyer has participated in this training then they have an advanced knowledge of how breath test machines work, what faults the machines have, what maintenance the machines require and what protocols an officer must follow to correctly administer the test.

4) American Association of Premier DUI Attorneys: Members of the American Association of Premier DUI Attorneys have received advanced level training on the strategies that win the most DUI cases at trial and are also used to get DUI cases successfully resolved for the defense prior to trial. Members of the American Association of Premier DUI Attorneys also have access to the resources and tools that are used to win and successfully resolve DUI cases. The resources and tools AAPDA members have, only a very small percentage of DUI attorneys have access to and use including law enforcement manuals, testing protocols and validation studies.

5) National Trial Lawyers Association Top 100 Trial Lawyers: The top 100 is an invitation-only organization composed of the premier trial lawyers from each state or region who meet stringent qualifications as criminal defense trial lawyers. Selection is based on a thorough multi-phase objective and uniformly applied process which includes peer nominations combined with third-party research. Membership is extended only to the select few of the most qualified attorneys from each state or region who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile measured by objective and uniformly applied standards.

6) Superlawyers Designation: Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.

What else to consider when hiring a DUI lawyer.

Client Reviews: Do your research. Usually a quick web search will reveal reviews of most attorneys. Reviews that past clients leave will often be the best resource for a person seeking to hire an attorney. Look for reviews that focus on client communication, trial results and knowledge of the law.

Attorney Endorsements/Referrals: Just like you know the best in your business, most attorneys know the best in their business. If you have a relationship with an attorney, even one that doesn’t work on DUI cases, give them a call and ask for a referral. Aside from your personal relationships, do your research, there are dozens of websites where attorneys will review other attorneys.

Top things to look for when hiring a DUI lawyer in Overland Park Kansas

Common Sense: You are going to be working with your attorney for months on your case. You should like your attorney. Your attorney is the only person in your corner. It’s always best to work with someone that you can trust, has patience and listens to you. If you trust what your attorney is telling you, the decisions you have to make during the course of your case will be easier, you won’t later be second guessing if you did the right thing. If your attorney has patience you will get a comprehensive answer to your questions in words you can understand. If your attorney listens to you he will have a better understanding of not only the facts of your case, which will help him better defend you.

HOW DOES AN ATTORNEY FIGHT A DUI WITH CASE LAW?

Kansas DUI law doesn’t change that often but every few years there are a few minor changes. This is the law that was passed by the legislature and is a few hundred words long. Obviously the legislature can’t think of every single scenario that could possibly happen and provide how to deal with it legally in those few hundred words. There is where case law kicks in.

When a prosecutor and a defense attorney disagree on how a law should be applied or what it means, case law will be created. This disagreement causes a case to be litigated. Each lawyer will argue their side of the law and a judge will rule on the issues. If either side disagrees with the judge’s ruling, they can appeal it to a higher level of court. Ultimately, when all the appeals are exhausted, the judge’s interpretation/ruling of what the law is or how it should be applied then becomes law. After this happens, other attorneys can review the judge’s decision and rely on it when they are evaluating future DUI cases.

Obviously, there have been tons of DUI cases litigated. Below are a few examples of cases that have been appealed and helped mold Kansas’ current DUI law.

CASE LAW FOR DUI IN KANSAS

*This is not an exhaustive list, just a few common issues

SCHMERBER VS. CALIFORNIA

384 U.S. 757 (1966)

This case established that blood tests on an individual accused of a DUI are a search subject to the 4th amendment.

Click Here to View the Case

STATE VS. FISH

228 Kan 204 (1980)

This case helped define “operating” in the context of the DUI statute. This case spurred including the “attempt to operate” terminology in the most recent version of the DUI statute.

Click Here to View the Case

STATE VS. COMPTON, ET. AL

233 Kan. 690 (1983)

These cases held that an individual’s refusal to submit to an alcohol test is admissible at any trial for DUI. These cases also upheld the statute that outlaws plea bargaining a DUI charge down to avoid the mandatory penalties.

Click Here to View the Case

SKINNER VS. RAILWAY LABOR EXECUTIVES’ ASSOCIATION

489 U.S. 602 (1989)

This case established that breath tests on an individual accused of a DUI are a search subject to the 4th amendment.

Click Here to View the Case

MICHIGAN DEPARTMENT OF STATE POLICE VS. SITZ

110 S. Ct. 2481 (1990)

This case upheld the constitutionality of some DUI checkpoints. It essentially says that when a DUI checkpoint occurs a “seizure” occurs in the 4th Amendment context, however it is possible to have a checkpoint that does not violate the 4th Amendment.

Click Here to View the Case

STATE VS. BRANSCUM

19 Kan.App.2d 836 (1994)

This case interpreted K.S.A. 8-1001(k). It requires that a law enforcement officer make an individual aware of their rights before they submit to a breath test. It also requires that the officer not mislead individuals as to their rights.

Click Here to View the Case

STATE VS. TAPEDO

77 P.3d 1288 (2004)

A prior DUI diversion, even if without an attorney, can be used as a prior conviction for sentencing purposes for subsequent DUI offenses.

Click Here to View the Case

STATE VS. JONES

279 Kan. 71 (2005)

This case held that Preliminary Breath Tests are subject to scrutiny under the 4th Amendment and the statutory implied consent rule does not serve to give consent to a law enforcement officer who desires to administer a PBT to a person suspected of DUI.

Click Here to View the Case

STATE VS. WAHWEOTTEN

36 Kan.App2d 568 (2006)

This case held that evidence of a refusal of a PBT is inadmissible to prove the offense of DUI. It also held that a defendant’s refusal to take a breath test does not implicate the privilege against self-incrimination under the 5th amendment.

Click Here to View the Case

STATE VS. RICKERSON

47 Kan. App.2d 648 (2012)

This case held that the institutional noncompliance with and systematic disregard of the State Supreme Court’s prior decision, warranted dismissal of a DUI charge. This case established that police cannot hold an individual charged with DUI whom wants to bond out of jail unless an individualized determination is made as to whether the driver is intoxicated and a danger to themselves or others.

Click Here to View the Case

STATE VS. EDGAR

296 Kan. 513, 294 P3d. 251 (2013)

This case held that a misstatement of the law addressing the effect of taking or refusing a breath test, in that case a PBT, rendered the implied consent advisories out of compliance with the statute and interfered with the driver’s ability and right to withdraw their implied consent to the test.

Click Here to View the Case

MISSOURI VS. MCNEELEY

133 S. Ct. 1552 (2013)

This case confirmed that police must have a warrant to draw body fluids from an individual suspected of DUI.

Click Here to View the Case

STATE VS. DECLERCK

49 Kan.App.2d 908 (2014)

This case confirmed that the “implied consent” statute alone was not sufficient to give consent to search on behalf of a driver, to police for warrantless searches in context of a DUI.

Click Here to View the Case

CITY OF WICHITA VS. MOLITOR

301 Kan. 251 (2015)

This case essentially killed the HGN (Horizontal Gaze Nystagmus) test in Kansas. The Supreme Court equated the HGN to the “Magic 8 Ball” and the “Ouija Board.”

Click Here to View the Case

STATE VS. MEITLER

51 Kan.App.2d 308, 347 P.3d 670 (2015)

This case held that the “good-faith exception” to the exclusionary rule applied to permit admission of blood test results obtained by law enforcement’s reliance on an implied consent statute that was later determined to be unconstitutional.

Click Here to View the Case

STATE VS. RYCE

303 Kan 899 (2016)

This case confirmed that the “implied consent” statute does not work around the 4th Amendment, drivers are able to withdraw their consent. The statute that criminalizes the refusal of a blood/breath test is unconstitutional on its face.

Click Here to View the Case

STATE VS. NECE

303 Kan 888 (2016)

This case held that the DC-70 “Implied Consent Advisory” that was required to be read to all individuals that police intended to have submit to a breath alcohol test was inaccurate and the information in the advisory unduly coerced Nece (and thousands of other individuals suspected of DUI) into submitting to a breath test.

Click Here to View the Case

STATE VS. STANLEY

367 P. 3d 1284 (2016)

This case held that prior DWI convictions from Missouri can’t be used as a prior for sentencing purposes, under Kansas Law Missouri DWI convictions are not a similarly related offense.

Click Here to View the Case

CAN THE INTOXILYZER BE BEAT?

How Does The Breath Test Work?

There is a really scientific way of explaining how the breath test works and a really easy way.

Scientific: The Intoxilyzer 9000 uses the concept that alcohol molecules absorb light energy at specific wavelengths to measure ethyl alcohol concentration in breath samples. The wavelengths of infrared light used are in the 8 and 9 micron regions. The heart of the Intoxilyzer 9000 instrument is a self-contained heated optical bench. This optical bench consists of the heated sample chamber, pulsed infrared light source and the pyroelectric detector. The sample chamber within the Intoxilyzer 9000 consist of two preheat chambers and the final sample chamber. At one end of the chamber the light source, a Micro-Electro-Mechanical System based infrared source, emits infrared light energy. This energy is directed through the chamber by a lens. At the other end of the chamber is a pyroelectric detector which changes the heat energy of the light source into an electrical response. This electrical response is then used to calculate the breath alcohol concentration (BAC) of the sample.

The determination of the BAC is based on the amount of light energy striking the detector. When no alcohol is present the infrared light passes through the chamber unaffected creating a certain voltage level. This can be called X. As a sample with alcohol is introduced, some of the infrared light is absorbed. As the alcohol level increases, the amount of light passing through the chamber reaching the detector decrease. This new level of voltage can be called Y. The difference between X and Y represents the concentration of alcohol in the sample. The greater the difference between the X and Y values the higher the BAC reading.

There are other chemical structures that absorb light energy at similar wavelengths as alcohol. The chemical structures are known as “interferents,” such as acetone. The Intoxilyzer 9000 will detect a difference in the readings at the 8 and 9 micron wavelengths and will abort the test giving the message “Interference Detected”.

Easy: The Intoxilyzer 9000 isn’t perfect. It isn’t even close to perfect. Yet it is the machine that the State of Kansas has approved to be the evidentiary breath test. Regardless of how the machine actually works, if you submit to the test and your lawyer can not find a way to keep the results of that test out of court then it will be used against you. Most judges and most juries give great weight to the results of the intoxilyzer test.

A FEW THINGS TO LOOK FOR WHEN ANALYIZING A BREATH TEST

Did the officer observe the proper deprivation period before he administered the test?

The Intoxilyzer 8000 and 9000 require that the officer observe the person the test is being administered on for 20 minutes immediately before administering the test. The subject must be in the officer’s immediate presence and the subject must be deprived of alcohol. The officer must make sure that the person did not introduce something into their mouth in any way during that time. If the officer fails to follow this protocol this may be grounds for suppression of your breath test. (See the Intoxilyzer Protocol #1 on the appropriate model)

Was the gas used to calibrate the machine before the test from an approved gas provider?

Each state has approved providers/manufacturers for the “test gas” or calibration gas. There are dozens of companies that make the gas but only a few are usually accepted by the state. If your machine was calibrated using non-approved gas, you may be able to suppress the breath test.

Was the Intoxilyzer operating correctly?

Each model is different but most will have a heated tube for the suspect to blow in. The tube heater malfunctions over time. If your machine’s tube wasn’t heated properly then particulate/condensation can collect in the tube and make the machine read incorrectly. The machine will have maintenance records available. Check to see if the maintenance is up to date on the machine. If the machine is malfunctioning or has not had the proper maintenance, then you may be able to suppress the breath test.

Was the officer that administered the breath test certified on the Intoxilyzer?

Before an officer can become certified to administer the breath test he/she must submit an application for “operator certification” through his/her law enforcement agency. The officer must have the written endorsement of a supervisory law enforcement officer from his agency. He or she must have completed a course of instruction on the equipment and pass a written exam. The officer then must be issued a certificate by the secretary of the Kansas Department of Health and Environment. If an officer had not met these requirements, then there may be grounds to suppress your breath test. (see page 57 of the 2023 Kansas Breath Alcohol Training Manual)

When was the officer last certified on the breath test equipment?

A certificate to administer a breath test does not last forever it must be renewed. Each operator certificate issued, is at absolute most, good for two years. Each operator seeking to renew his or her certificate must submit an application to renew their certification. The operator must complete further training to keep his or her certificate. If the officer has not renewed their certification, then that will be grounds to suppress your breath test. (see page 58 of the 2023 Kansas Breath Alcohol Training Manual)

Is the agency that administered your breath test certified by the State?

Before an agency can be certified by the State to have officers administer the breath test the agency must perform some tasks. The law enforcement agency “head” must submit an application for certification. The agency must prove the secretary of the Kansas Department of Health and Environment the following things.

A. Specify each breath test device and provide its certification;

B. Maintain a roster of all certified operators who perform breath tests for that agency;

C. Verify that certified operators only use approved breath test devices;

D. Verify that each certified operator follows the devices’ protocol;

E. Verify that each machine is tested once per week and the results of those tests are provided to the state monthly;

F. Verify that the secretary has done an annual inspection of the agency

If the agency has not done these things or the agency does not renew their certification every year, then there may be grounds to suppress your breath test. (see page 56 of the 2023 Kansas Breath Alcohol Training Manual)

Was the Intoxilyzer approved by the State and are its maintenance records up to date?

Each breath test machine must be certified for use by the Secretary of the Kansas Department of Health and Environment. Before that can occur the law enforcement agency must submit an application and certify that the agency intends to use the device for breath alcohol testing. The device must meet the National Highway Traffic Safety Administration guidelines and performance criteria. The continued maintenance of the device must be in accordance with the Secretary’s guidelines. The device if in need of repairs must be repaired by the manufacturer or the manufacturer’s authorized repair service. The device is not authorized if it is modified in any way that affects the operating software or alters the accuracy or precision of the device. If the device is not approved or its maintenance records up-to-date then this may be grounds to suppress your breath test results. (see page 59 of the 2016 Kansas Breath Alcohol Training Manual)

Did the External Standard Check results fall within the acceptable range?

The standard range is 0.075 to 0.085 on both the Intoxilyzer 8000 and Intoxilyzer 9000. If the standard check was not within the acceptable range this is a grounds to suppress the results of your breath test. (see the Intoxilyzer Protocol on the appropriate model, #5)

Did the Law Enforcement Agency maintain the proper records?

Each agency custodian must maintain records for three years on each Intoxilyzer that is in service under that agency’s control. The agency must maintain records of all officers that are certified to use the machines, they must maintain maintenance records for each of the machines and they must maintain records showing that a quality control check was completed at least once each week for each intoxilyzer device assigned to that agency. Failure to maintain the proper records can be grounds to suppress the breath test. (see page 59 of the 2023 Kansas Breath Alcohol Training Manual)

Was the Intoxilyzer affected by Radio Frequency Interference?

The intoxilyzer is a sensitive instrument and it is susceptible to interference. One of the problems with the intoxilyzer is radio interference. The radio frequency emitted by a cell phone or a police radio can cause the test to malfunction. Although the system claims to have automatic detection or radio frequency interference, it is not full proof. If an officer was communicating on the radio or a cell phone during the administration of the test, the results may have been affected by radio interference. If your test was affected by Radio Frequency Interference you may have grounds for suppression. (see page 85 of the 2023 Kansas Breath Alcohol Training Manual)

Did the officer use an unused mouth piece on the Intoxilyzer before you took the test?

The intoxilyzer has a specific protocol for administering the breath alcohol test. If the protocol is not followed exactly then the test results may be affected. Each testing subject must use a clean unused mouthpiece when they submit to the test. If an old or used mouthpiece is used during the test, then the results may be affected. If you did not see the officer install a new mouth piece before you submitted to the intoxilyzer test, then you may have grounds to suppress the results of that test. (see the Intoxilyzer Protocol on the appropriate model, #6)

Did the officer read the Advisory before administering the Breath test?

An officer is required to read aloud the DC-70 Advisory to a person suspected of driving under the influence if the officer intends to have the person submit to a breath alcohol test. If the officer fails to read the advisory it may be grounds to suppress the results of the breath test. (see pages 8-14 of the 2023 Kansas Breath Alcohol Training Manual)

Can the HGN (Eye Test) Be Beaten in a DUI Case?

Horizontal Gaze Nystagmus is the first field sobriety test that an officer will generally administer to someone the officer suspects of Driving while intoxicated. What the officer is looking for is the involuntary jerking of the eyes of the suspect. Involuntary jerking of the eyes becomes readily noticeable when a person is impaired. As a person’s blood alcohol concentration increases, the eyes will begin to jerk sooner as they move to the side. The suspect that is being tested is usually unaware that the jerking is occurring. The exact same nystagmus can be exhibited when a person has used central nervous system depressants, inhalants and dissociative anesthetics.

Before an officer can validly administer the test the officer must check for resting nystagmus and equal tracking of both eyes. Some people have a medical condition that causes their eyes to exhibit nystagmus naturally, these people should not be tested. Also, some suspect’s eyes will not track equally, they should not be tested.

What the officer is looking for during the HGN test is the following three clues.

1. Lack of smooth pursuit: As a person becomes impaired by alcohol their eyes will exhibit a jerking or inability to maintain a constant rate of pursuit to an observed stimulus.

2. Distinct and Sustained Nystagmus at Maximum Deviation: When the eye moves as far to the side as possible and is kept at that position for four (4) seconds, if it jerks after four seconds then this is an indicator of impairment.

3. Onset of Nystagmus prior to 45 degrees: As the eye moves from the center position to the side, if it jerks before the stimulus is at a 45-degree angle to the eye this is an indicator of impairment.

There are six possible clues that an officer can claim indicate impairment on the HGN test. (Three clues per eye) It only takes two clues out of the six possible to “fail” the HGN test.

Observations that are not clues that officers sometimes score by mistake.

Failure to maintain balance while taking the test. This is a clue on another field sobriety test it is not a valid clue when scoring the HGN test. The officer will bring up failure to maintain balance as an indicator of impairment but cannot clue the suspect for poor balance.

Not keeping the head stationary while taking the test. This is not a clue in any standard field sobriety test. It is common for an officer to forget to tell a suspect not to move their head during the instructional phase of the HGN test, then “correct” the person during the test. The officer may then bring up at trial that the suspect kept moving their head during the test to try to imply that the suspect was impaired and could not follow instructions or that the suspect may have been trying to circumvent the test.

Closing your eyes during the test. This is not a clue in any standard field sobriety test. Occasionally an officer will indicate that the suspect closed their eyes during the test to imply that the suspect was either not cooperating or was otherwise impaired. If a suspect closes their eyes during the test it can be an indicator that they are medically unqualified to take the HGN test or that there is some other stimulus causing unrelated nystagmus or eye fatigue.

Not keeping hands at sides during the test. This is a clue on another field sobriety test. It is not a valid clue for the HGN test. The officer may try to introduce that the person did not hold their hands down to their side like the test requires. When a suspect does anything other than have their hands at their sides, (most commonly the suspect puts them in their pockets or crossed in front of them) it is usually due to poor instruction by the officer.

Vertical Nystagmus as a clue. Before the conclusion of the HGN test the officer will test for Vertical Nystagmus, Vertical Nystagmus is an involuntary jerking of the eyes occurring as the eyes are held at maximum vertical elevation. Vertical nystagmus cannot be recorded unless it is distinct and sustained for a minimum of four seconds. It is not a clue for the HGN test and does not count toward the two clues necessary to fail the test

Problems with the Horizontal Gaze Nystagmus

Admissibility in Court: The HGN test is not admissible in Kansas Courts and has been equated to the “Magic 8 ball” and the “Ouija Board” by the Kansas Supreme Court.

(See the Case law section of this website to see the Supreme Court case)

Optokinetic Nystagmus: This is another type of nystagmus that is quite common. Optokinetic Nystagmus can give an officer a “false positive” for clues during the scoring of the HGN test. Optokinetic Nystagmus in a person’s eye can be caused by flashing lights or objects moving quickly across the field of view of the suspect. Because most police cars have flashing lights on during a traffic stop and usually fast moving cars are passing in the field of vision of the suspect during the administration of the test, Optokinetic Nystagmus can cause real problems.

Reliability: There are Five studies that are cited to back up the HGN .

Southern California Research Institute Study: The original research conducted by the Southern California Research Institute that was used to develop the Standard Field Sobriety Test curriculum indicated that the HGN test was 77% accurate at detecting subjects at or above a .10 BAC. This study is aimed at detecting an alcohol concentration that is higher than the legal limit. It was performed nearly 40 years ago and has an abysmal accuracy rating. (This study is not available online)

Validation of SFST at BAC below 0.10: This study was finalized in 1998. It is a relatively small sample size of 297 motorists. The study claims an 88% accuracy rate for arrests decisions based on the HGN test.

(Click to see Standardized Field Sobriety Test (SFST) Validated At Bacs Below 0.10 Percent)

A Colorado Validation Study of the SFST Battery: This study was finalized in 1995. This study had a sample size of 305 participants. The study claims an 86% accuracy when administering all three tests.

(Click to see the Colorado Validation Study of Standardized Field Sobriety Battery – Burns Article)

A Florida Validation Study of the SFST Battery: This study was finalized in 1997. This study had a sample size of 256 breath tests. The study claims 95% accuracy when administering all three tests.

(Click to see the Florida Validation Study of the Standardized Field Sobriety Test Battery -Burns Article)

The Robustness of the Horizontal Gaze Nystagmus Test: This scholarly article was published in 2007. It is not a lab/test study like the others. The ultimate conclusions from the study is that, “It is concluded that HGN is a robust phenomenon.”

(Click to see the Robustness of the HGN Article)

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

Can the One Leg Stand Test Be Beaten in a DUI Case?

The One Leg Stand test is usually the third test that an officer will administer to a suspect that the officer believes is impaired by alcohol. What the officer is looking for is the suspect’s ability to divide his or her attention and still perform a set of tasks as instructed. There are two phases of the test. In each phase the officer is tasked with certain responsibilities and the suspect is given certain objectives. The officer is looking for “clues” of impairment. In the One Leg Stand test there are four possible clues of impairment. If the suspect exhibits two clues then the test results indicate that the person is impaired. The two phases are below.

Instructional Phase: What the officer is supposed to do: The officer is supposed to give instructions on how to complete the test and demonstrate the proper way to perform the test. The officer should also make sure that the testing site is appropriate. The officer should give the following instructions:

Please stand with your feet together and your arms down at the sides;
The officer should give a demonstration standing feet together and arms at his or her sides;
Do not begin the test until told to do so;
The officer should ask the suspect if he or she understands;
After the suspect is placed with their feet together and arms to the side and confirmed that they understand the instructions, the officer will tell suspect that when the officer tells the suspect to begin the test, the suspect should raise either leg off the ground with the foot approximately 6 inches off the ground.
The officer will instruct the suspect to keep their legs straight and their arms at their sides for the duration of the test.
While holding that position, count out loud in the following manner: “one thousand one, one thousand two, one thousand three,” and so on until told to stop.
The officer will tell the suspect to “keep watching their raised foot.”
The officer will ask if the suspect understands the instructions as given.
If the suspect responds that they understand, the officer will tell the suspect to begin the test.

What the suspect is supposed to do: At this point the suspect does not need to do anything other than listen to the officer and not start the test until asked to do so. The suspect cannot display a clue during the instructional phase.

What Clues the officer is looking for: There are no clues that the officer can negatively score a suspect for during the instructional phase of the one leg stand test. However, that will not stop an officer from recording in his or her report that the suspect is swaying, failing to maintain balance, slurring their speech, et. cetra.

Common mistakes officers make: Improperly scoring a “failure to maintain balance while listening to the instructions.” clue: This happens often among officers that are not experienced with DUI investigations. This clue is not a clue at all in the context of the One Leg Stand test. This is only a clue when administering the Walk and Turn test. Often a poorly trained officer will assess this clue.

Improperly scoring a clue for “beginning the test to early”: Again this happens when an officer has little experience with DUI investigations or was poorly trained. Beginning the test too early is not a clue for the One Leg Stand test. It is only clue when administering the Walk and Turn test.

Giving incorrect instructions: Officers will give confusing or altogether incorrect instruction on the One Leg Stand test. The most common mistake officers make is forgetting to ask the suspect if they understand the instructions. If an officer forgets to ask the suspect if they understand the instructions the entire test comes into question.

Balance and Counting Stage: What the officer is supposed to do: The officer is supposed to be watching the suspect for clues of impairment and simultaneously keeping time for the test. The officer is supposed to also determine if what he is seeing is a clue of impairment or the suspect’s performance on the test is due to some other environmental factor.

What the suspect is supposed to do: The suspect has a difficult task. The suspect must remember and perform the set of instructions as the officer told them to. The suspect is also under added stress of being in an adversarial situation and unfamiliar location.

What clues the officer is looking for: The officer is looking for four different clues, each is open to interpretation and subjective.

Sways While Balancing- This refers to the side to side or back and forth motion while the suspect maintains the one leg stand position. Slight tremors of the foot or body should not be interpreted as swaying. (NHTSA Participant Manual 2013, Section 8, Page 51 of 62)
Uses Arms to Balance- If the suspect moves their arms to balance or extends their arms out to maintain balance then this clue should be scored. The suspect must move their arms 6 or more inches from the side of the body in order to keep balance before this clue can be scored. (NHTSA Participant Manual 2013, Section 8, Page 51 of 62)
Hopping- This refers to when the suspect is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.
Puts foot down- If the suspect is not able to maintain the One Leg Stand position, putting their foot down one or more times during the test counts as one clue.

Common Mistakes Officers Make: Conducting the Test in an inappropriate location: The One Leg Stand test should be conducted on a dry, hard, and non-slippery surface. The subject’s safety should be considered at all times. If there is no available testing cite then the officer should not conduct the test at all. (NHTSA Participant Manual 2013, Section 8, Page 49 of 62)

Failure to Keep Time: The One Leg Stand test is supposed to be conducted for thirty seconds. An officer will seldom tell the suspect that the test is supposed to be for thirty seconds and is not required to. The officer is supposed to use a timing device to keep track of the time. If the officer does not keep accurate time he is in violation of the NHTSA manual. (NHTSA Participant Manual 2013, Section 8, Page 52 of 62)

Giving Instruction During the Performance of the Test: Officers forget that one of the most important parts of the Standard Field Sobriety Tests is the first word, “Standard.” The test is standardized; it must be given the same way every time if the officer intends to rely on the perceived results. The officer is not authorized to instruct a suspect while they are taking the test. For example, an officer cannot tell the suspect to make sure to “count out loud” if the suspect stops counting. If an officer does this, then the officer is introducing an additional stimulus to the test. Therefore, making the test more complicated and invalidating the results. The only time this is acceptable during the One Leg Stand test is if the suspect puts his foot down. Then and only then may the officer instruct the person to pick their foot back up. (NHTSA Participant Manual 2013, Section 8, Page 52 of 62)

The Suspect’s Age: If the suspect is over the age of 65 the research indicates that the suspect will have difficulty with the test regardless of their consumption of alcohol. (2013 Participant Manual Session 8, Page 49 of 62). An officer should not administer the SFST battery to an individual over the age of 65.

The Suspect’s Weight: If the suspect is 50 pounds overweight the research indicates that the suspect will have difficulty with the test regardless of their consumption of alcohol. (2013 Participant Manual Session 8, Page 49 of 62). An officer should not administer the SFST battery to an individual whom is 50 pounds’ overweight.

The Suspect’s Physical Condition: If the suspect has back, leg, or inner ear problems the suspect will have difficulty with the test regardless of their consumption of alcohol. (2013 Participant Manual Session 8, Page 49 of 62). An officer should not administer the SFST battery to an individual with those physical problems.

The Suspect’s footwear: If a suspect is wearing heels more than 2 inches high they should be given the opportunity to remove their shoes when performing the SFST battery. (2013 Participant Manual Session 8, Page 49 of 62) If an officer fails to give the suspect the option to remove their heels the officer is operating outside of the NHTSA guidelines.

Problems with the One Leg Stand Test Officer Mistakes: As you can see above there are ample opportunities for an officer to make a mistake in either instructing the suspect on how to perform the test or make a mistake on how to interpret the results of the test. In all aspects of field sobriety testing these two problems are by far and away the most common reasons that people get falsely accused of DUI.

Reliability: There are Four studies and one data point that are cited to back up the One Leg Stand Test

Data Point: The National Highway Traffic Safety Administration Participant Manual cites “recent research” that indicates an accuracy of 83% for the One Leg Stand test. (2013 Participant Manual Session 8, Page 53 of 62).

Southern California Research Institute StudyThe original research conducted by the Southern California Research Institute that was used to develop the Standard Field Sobriety Test curriculum indicated that the One Leg Stand test was 65% accurate at detecting subjects at or above a .10 BAC. This study is aimed at detecting an alcohol concentration that is higher than the legal limit. It was performed nearly 40 years ago and has an abysmal accuracy rating. (This study is not available online)

Validation of SFST at BAC below 0.10 (San Diego Study)This study was finalized in 1998. It is a relatively small sample size of 297 motorists. The study claims an 83% accuracy rate for arrests decisions based on the One Leg Stand test.

(Click to see the San Diego SFST Study)

A Colorado Validation Study of the SFST Battery. This study was finalized in 1995. This study had a sample size of 305 participants. The study claims an 86% accuracy when administering all three tests.

(Click to see the Colorado SFST Study)

A Florida Validation Study of the SFST Battery.

This study was finalized in 1997. This study had a sample size of 256 breath tests. The study claims an 95% accuracy when administering all three tests.

(Click to see the Florida SFST Study)

Can the Walk and Turn Test Be Beaten in a DUI Case?

The Walk-and-Turn (WAT) test is one of three standardized field sobriety tests (SFSTs) administered by law enforcement to determine impairment during a DUI stop. It is designed to evaluate a suspect’s ability to follow instructions and perform specific tasks, providing clues of potential intoxication. However, the test is far from foolproof, and both the administration and interpretation of the WAT test are prone to errors.

This article examines how the WAT test works, common mistakes officers make, and strategies for challenging its results in a DUI case.

How the Walk-and-Turn Test Works

The Walk-and-Turn test is divided into two phases:

1. Instructional Phase

During this phase, the officer provides the suspect with detailed instructions on how to perform the test while demonstrating the required movements.

What the Officer Is Supposed to Do:

Give Instructions Clearly: Explain the test step by step.
Demonstrate Proper Technique: Show how to walk heel-to-toe, turn, and return.
Set the "Instructional Position": Instruct the suspect to stand with one foot in front of the other, arms at their sides, and remain in this position until told to begin.
Confirm Understanding: Ask if the suspect understands the instructions before starting.

What the Officer Looks For:

The officer observes two possible clues of impairment during this phase:

Starting the test before being instructed.
Losing balance while standing in the instructional position.

Challenges During the Instructional Phase:

The instructional phase places significant physical and mental demands on the suspect, which can be exacerbated by stress or confusion. Common issues include:

Poor explanation by the officer.
Excessive time spent in the instructional position, increasing the likelihood of movement or balance loss.
Misinterpreting normal movements, like shifting weight or adjusting posture, as clues.

2. Performance Phase

Once the suspect begins the test, they must take nine heel-to-toe steps along an imaginary or marked line, turn as demonstrated, and return using nine heel-to-toe steps.

What the Officer Is Supposed to Do:

Observe silently without giving additional instructions or corrections.
Use a standardized approach as outlined in the National Highway Traffic Safety Administration (NHTSA) Manual to evaluate performance.

What the Officer Looks For:

The officer notes six possible clues during the performance phase:

Failing to walk heel-to-toe (gap of more than ½ inch).
Stepping off the line (entire foot leaves the line).
Using arms for balance (arms raised more than 6 inches from the sides).
Stopping during the test.
Making an improper turn (e.g., pivoting incorrectly or losing balance).
Taking the wrong number of steps in either direction.

The presence of two or more clues is considered a failure of the WAT test.

Common Mistakes Officers Make in Administering the Test

While the WAT test is a standardized procedure, its reliability heavily depends on the officer’s ability to administer it correctly. Common mistakes include:

1. Poor Testing Conditions

Uneven Surfaces: The test should be conducted on a dry, level, non-slippery surface with sufficient space. Testing on gravel, sloped terrain, or icy surfaces violates NHTSA guidelines.
Inappropriate Weather: Rain, snow, or high winds can impact the suspect's ability to perform the test accurately.

2. Failing to Account for Physical Conditions

The WAT test may be unsuitable for certain individuals, such as:

People over 65 years old.
Those with back, leg, or inner ear issues.
Individuals wearing high heels (over 2 inches) who are not offered the chance to remove them.

3. Improper Scoring of Clues

Failure to Maintain Balance: Simple weight shifting or minor arm movements are often misinterpreted as a loss of balance. The NHTSA manual specifies that only a complete loss of stance ("breaking stance") is a valid clue.
Starting Too Early: Officers sometimes fail to tell suspects not to begin until instructed, yet still count it as a clue.
Misinterpreting Steps: Missing heel-to-toe contact by less than ½ inch or pausing briefly is not a valid clue but is often improperly scored as one.

4. Giving Instructions During the Test

The WAT test must be administered without mid-test corrections. Adding instructions during the test introduces additional stimuli, invalidating the results.

Reliability of the Walk-and-Turn Test

Studies have demonstrated significant variability in the accuracy of the WAT test:

Southern California Research Institute (1977): Found a 68% accuracy rate at detecting BAC levels of 0.10 or higher.
San Diego Validation Study (1998): Claimed 79% accuracy with BAC below 0.10.
Colorado and Florida Studies (1995, 1997): Reported accuracy rates of 86% and 95%, but these results apply only when combined with other SFSTs.

Given these inconsistencies, the WAT test alone is not a reliable indicator of impairment.

Challenging the Walk-and-Turn Test in Court

1. Highlight Officer Errors

Your attorney can argue that the test was improperly administered or scored, citing deviations from NHTSA guidelines, such as:

Conducting the test in unsuitable conditions.
Misinterpreting non-clues as signs of impairment.
Providing additional instructions mid-test.

2. Address Suspect’s Physical Condition

Physical conditions like injuries, age, or footwear can impair performance. Medical records or witness testimony may demonstrate that these factors, not intoxication, explain any observed behaviors.

3. Question Test Reliability

Your lawyer can challenge the scientific basis of the WAT test, emphasizing:

It has a low accuracy rate.
The lack of peer-reviewed research supports its validity.
The inherent stress and pressure of a DUI stop affecting performance.

4. Introduce Alternative Explanations for Clues

Stress, fatigue, or even uneven surfaces can explain performance issues unrelated to alcohol impairment.

Can the Walk-and-Turn Test Be Beaten?

While the Walk-and-Turn test is a widely used tool in DUI investigations, it is far from infallible. Errors in administration, external factors, and the test’s inherent limitations provide ample grounds for challenging its results in court. An experienced DUI attorney can identify weaknesses in the test’s administration and use these to undermine its reliability, potentially reducing or dismissing charges.

If you’ve been charged with a DUI based on field sobriety tests, contact a skilled attorney immediately to protect your rights and build a robust defense.

Can You Beat the PBT in a Kansas DUI Case?

Can the Preliminary Breath Test (PBT) be beat?
A preliminary breath test is the small portable breathalyzer that an officer keeps in the patrol vehicle. It is usually the test that an officer will request a person take after the officer has administered the Standard Field Sobriety Tests. The machine is supposed to determine the suspect’s blood alcohol level. There are many different preliminary breath test machines that are approved for use in Kansas, each machine has its own protocol for use and maintenance. Preliminary Breath Test results are not admissible in court to determine if a suspect is over the legal limit they are only able to be used to establish probable cause to arrest by an officer. Preliminary Breath Tests are not the same as an evidentiary breath test. Preliminary Breath tests do not have the same weight in court as the Intoxilyzer 8000 or the Intoxilyzer 9000.

How do you beat the Preliminary Breath Test?
The short answer is, you don’t need to. The PBT is not evidence in your criminal case. An officer will never get to tell a jury that you submitted to the PBT and the results were that you were over the legal limit. Preliminary Breath Test results are not admissible in court because the PBT is not accurate. Time after time judges have not allowed PBT results into evidence and there is ample case law to keep these results out.

What does an officer have to do before asking a suspect to take a preliminary breath test?
Before an officer can ask you to submit to a preliminary breath test the officer must have already developed reasonable suspicion that you are impaired. The officer must also give the suspect the following three warnings.

You do not have the right to consult with an attorney before taking the test.
Failure to give a sample or refusal of a PBT is an infraction.
You may be subject to further testing.

What happens if you refuse a Preliminary Breath Test?
Nothing will happen. It once was against the law to refuse a Preliminary Breath test in Kansas. It once was a citation punishable by a $300 fine. But that law has since been found unconstitutional. Absolutely nothing will happen to you as a punishment for refusing a PBT.

What Preliminary Breath Tests are approved in Kansas?
K.S.A. 65-1,107, authorizes the Kansas Department of Health and Environment with the authority to approve the preliminary breath tests devices that can be used by law enforcement. The list of approved devices are outlined in the Breath Alcohol Program Training Manual compiled and approved by the Kansas Department of Health and Environment.

Click the link below to view that manual for each of the last five years.

List of Preliminary Breath Test Devices that are currently approved.

Alcohol Countermeasure Systems (Alert J-5)
CMI Inc. (Intoxilyzer 300)
CMI Inc. (Intoxilyzer 400)
CMI Inc. (Intoxilyzer SD2)
CMI Inc. (Intoxilyzer SD5)
Drager (Alcotest 6510)
Drager (Alcotest 6810)
Drager (Breathalyzer 7410)
Guth (Wat 89EC-1)
Guth (Alcotector BAC 100)
Intoximeter (Alco-Sensor)
Intoximeter (Alco-Sensor Pass-Warn-Fail)
Intoximeter (Alco-Sensor III)
Intoximeter (Alco-Sensor Digital)
Intoximeter (Alco-Sensor IV Digital)
Intoximeter (Alco-Sensor IV Pass-Warn-Fail)
Intoximeter (Alco-Sensor FST)
Lifeloc (FC-10)
Lifeloc (FC-10 Plus)
Lifeloc (FC-20)
Lifeloc (PBA 3000)
Sound Off, Inc. (Alco Data)

Can You Beat the PBT in a Kansas DUI Case?

You do not have the right to consult with an attorney before taking the test.
Failure to give a sample or refusal of a PBT is an infraction.
You may be subject to further testing.

Click the link below to view that manual for each of the last five years.

List of Preliminary Breath Test Devices that are currently approved.

Alcohol Countermeasure Systems (Alert J-5)
CMI Inc. (Intoxilyzer 300)
CMI Inc. (Intoxilyzer 400)
CMI Inc. (Intoxilyzer SD2)
CMI Inc. (Intoxilyzer SD5)
Drager (Alcotest 6510)
Drager (Alcotest 6810)
Drager (Breathalyzer 7410)
Guth (Wat 89EC-1)
Guth (Alcotector BAC 100)
Intoximeter (Alco-Sensor)
Intoximeter (Alco-Sensor Pass-Warn-Fail)
Intoximeter (Alco-Sensor III)
Intoximeter (Alco-Sensor Digital)
Intoximeter (Alco-Sensor IV Digital)
Intoximeter (Alco-Sensor IV Pass-Warn-Fail)
Intoximeter (Alco-Sensor FST)
Lifeloc (FC-10)
Lifeloc (FC-10 Plus)
Lifeloc (FC-20)
Lifeloc (PBA 3000)
Sound Off, Inc. (Alco Data)

What Is Discovery in a DUI Case?

“DISCOVERY” CAN BE SEEN IN TWO DIFFERENT CONTEXTS.

Discovery as Lawyer Slang: In everyday practice, lawyers often use the term "discovery" to describe all the tangible evidence and documentation handed over by the prosecution. When your defense attorney mentions reviewing the discovery, they are referring to items such as:

Police reports
Dashcam or bodycam footage
Field sobriety test results
Breathalyzer or blood test results
Witness statements
Any other materials that relate to your arrest and charges

This collection of evidence is vital for your attorney to analyze and assess the strength of the prosecution’s case. By reviewing these materials, your attorney can determine whether the police followed proper procedures, if there are inconsistencies in the evidence, or if any constitutional violations occurred during the stop or arrest. This initial review is often the foundation of the defense strategy.

Discovery as a Legal Process: In a more formal legal sense, "discovery" refers to the procedural steps that allow a defense attorney to obtain evidence and information from the prosecution and other relevant sources. This process typically begins at the start of a criminal case, and it involves requesting all materials that the prosecution plans to use in court.

The defense attorney submits a formal discovery request, which requires the prosecution or law enforcement agencies to provide any evidence they have related to the case. This may include not only the obvious items like reports and videos but also materials that may not be immediately apparent, such as:

Officer training records (to check whether the arresting officer was properly trained)
Calibration logs of the breathalyzer machine
Maintenance records for police vehicles involved in the arrest

This phase ensures transparency between the parties and allows the defense to challenge the evidence effectively. If the requested evidence is incomplete or withheld, the defense attorney can file a “Request for Discovery and Inspection” with the court, compelling the prosecutor to provide the missing materials or explain to the judge why they are unable or unwilling to provide them.

The Importance of Discovery in DUI Cases

Discovery plays a pivotal role in building a defense for a DUI case. DUI charges rely heavily on objective evidence, such as blood alcohol concentration (BAC) readings, video footage, and police reports. The defense attorney's job is to scrutinize every piece of evidence for inconsistencies, procedural errors, or potential violations of your rights.

For example:

Video footage may show that the field sobriety tests were improperly administered or that the officer didn’t follow proper protocol during the stop.
Breathalyzer records could reveal that the device was not correctly calibrated or that it malfunctioned, leading to a falsely high BAC reading.
Police reports might contain contradictions or errors that cast doubt on the officer’s account of the events.

The discovery process is especially crucial in DUI cases because much of the evidence is subjective, and slight inconsistencies can significantly weaken the prosecution's case. For instance, field sobriety tests are inherently subjective, meaning the officer’s interpretation of your performance could be biased or flawed. By reviewing the discovery thoroughly, your attorney can uncover weaknesses in the prosecution’s case that can lead to a reduction of charges or even a dismissal.

Steps Involved in the Discovery Process

Here’s a typical breakdown of how the discovery process unfolds in a DUI case:

Initial Discovery Request: The defense attorney files a request for discovery, asking the prosecutor’s office to hand over all evidence they possess related to the case. This may include physical evidence, documents, digital records, and witness testimony.
Reviewing Discovery: Once the prosecution provides the requested materials, the defense attorney reviews the evidence in detail. This includes carefully going over any video footage, police reports, and lab results to check for inconsistencies or procedural errors.
Request for Additional Discovery: In some cases, the initial set of evidence may be incomplete. For example, if a report refers to a specific test result that wasn’t included in the discovery, the defense attorney will file a Request for Discovery and Inspection. This is a formal legal motion asking the prosecutor to provide the missing evidence or explain why it’s not available.
Defense Discovery Efforts: While the defense attorney is reviewing the prosecution’s evidence, they also conduct their own independent investigation. This might include visiting the scene of the arrest, speaking to witnesses, reviewing surveillance footage from nearby businesses, or hiring expert witnesses. In some cases, the defense might subpoena additional records, such as the police department’s training manuals or maintenance logs for the equipment used during the arrest.
Expert Analysis: In DUI cases, scientific evidence such as breathalyzer readings and field sobriety test results play a major role. Defense attorneys often consult with experts to challenge the reliability of this evidence. For example, an expert might testify that the breathalyzer machine wasn’t properly calibrated or that certain medical conditions could have affected your field sobriety test performance.

Challenges and Pitfalls in the Discovery Process

While the discovery process is designed to ensure fairness, there are common challenges that defense attorneys often encounter. For instance:

Incomplete or Delayed Discovery: In some cases, the prosecution may fail to turn over all relevant evidence in a timely manner, either due to oversight or deliberate withholding. This can significantly delay the defense’s ability to prepare for trial.
Lost or Destroyed Evidence: Evidence, particularly in DUI cases, is often time-sensitive. If video footage, for example, isn’t preserved properly, it could be lost or destroyed. A proactive defense attorney will act quickly to request and preserve key evidence.
Unreliable Witnesses: As time passes, witnesses may forget details or change their recollection of events. An experienced attorney will work to gather witness statements early in the discovery process to avoid these issues.

The Role of the Prosecutor in Discovery

The prosecutor plays a central role in the discovery process. They are responsible for gathering and disclosing all relevant evidence to the defense. However, it’s not uncommon for prosecutors to resist providing certain evidence, especially if they believe it could harm their case. In these situations, the defense attorney must file motions to compel discovery, asking the court to order the prosecution to release the evidence.

It’s also important to note that prosecutors must comply with legal obligations to disclose any evidence that might be favorable to the defense (exculpatory evidence). If they fail to do so, it could lead to sanctions, including the dismissal of charges or other penalties.

Discovery Forms from Area Jurisdictions:

Here are a few specific discovery forms from local jurisdictions that may be used during the discovery process in DUI cases:

Johnson County (JOCO)
Lawrence
Lenexa
Merriam
Mission
Mission Hills
Olathe
Overland Park
Prairie Village
Shawnee

Do I Need a Car Breathalyzer in My Car After a DUI?

If you've recently been charged with a DUI (Driving Under the Influence), you might be wondering whether you need to install a breathalyzer in your vehicle—commonly known as an ignition interlock device (IID)—to regain your driving privileges. The requirement to install an IID depends on various factors, including the specifics of your DUI case, whether it’s your first offense, and your blood alcohol concentration (BAC) at the time of your arrest. In many states, including Kansas, DUI offenders are mandated to have an ignition interlock device installed following a DUI conviction.

What is an Ignition Interlock Device?

An ignition interlock device is a specialized breathalyzer installed in your car that requires you to provide a breath sample before the vehicle can start. Here’s how it works:

Blow into the Device: Before starting your car, you must blow into the IID to provide a breath sample.
Alcohol Detection: If the device detects alcohol on your breath, the vehicle will not start.
Ongoing Monitoring: While driving, the IID may require additional breath samples at random intervals to ensure continued sobriety.

Failure to pass these alcohol tests can prevent your car from starting and may lead to further penalties, including fines or extended periods of IID installation.

When is a Breathalyzer Mandatory?

In Kansas, an IID is required under several circumstances related to DUI offenses:

DUI Conviction: If you are convicted of a DUI, whether through a plea deal or after a trial, court orders typically mandate the installation of an IID to reinstate your driving privileges.
Administrative License Suspension: If your license is suspended due to a DUI and you fail to request a hearing within 14 days of your arrest, you will need an IID installed to regain your license.

Recent Changes in Kansas Law

Previously, the requirement to install an IID was absolute for DUI offenders in Kansas. However, recent legislative changes have introduced some flexibility. For instance, if more than five years have passed since your IID requirement began, you may apply for the reinstatement of your license without needing to keep the IID installed. This leniency allows some DUI offenders to regain their driving privileges under specific conditions.

Duration of IID Installation

The length of time you need to have an IID installed in your car varies based on several factors, including the number of DUI offenses, your BAC level at the time of arrest, and whether you refused to take the breath test. Here’s a breakdown of the typical requirements:

First-Time DUI:
- BAC between .08 and .15: 6 months with an IID.
- BAC above .15: 12 months with an IID.
- Refusal to take the breath test: 24 months with an IID.
Second-Time DUI:
- BAC between .08 and .15: 12 months with an IID.
- BAC above .15: 24 months with an IID.
- Refusal to take the breath test: 36 months with an IID.
Third-Time DUI:
- BAC between .08 and .15: 24 months with an IID.
- BAC above .15: 36 months with an IID.
- Refusal to take the breath test: 48 months with an IID.
Fourth-Time DUI:
- BAC between .08 and .15: 36 months with an IID.
- BAC above .15: 48 months with an IID.
- Refusal to take the breath test: 60 months with an IID.
Fifth-Time DUI:
- Any BAC or refusal: 10 years with an IID.

The more DUIs you have, the longer you will be required to keep the ignition interlock device installed in your vehicle. Refusing a breath test during a DUI arrest also significantly increases the duration for which the IID must remain installed.

Consequences of Not Installing an IID

If you are required by court orders to install an IID and fail to do so, several penalties may ensue:

License Suspension: You will not be able to have your driver’s license reinstated until the IID is installed.
Fines: Additional financial penalties may be imposed for non-compliance.
Possible Jail Time: In some cases, failing to install the IID can result in incarceration.
Extended IID Requirement: Non-compliance may lead to a longer period of IID installation.

Cost of Installing an Ignition Interlock Device

Installing an IID can be financially burdensome. Here are the typical costs associated with an ignition interlock device:

Installation Fee: Ranges from $70 to $150, depending on the provider.
Monthly Maintenance Fee: Usually between $60 and $100 per month.
Calibration Costs: Regular calibration is required to ensure the device functions correctly, which can incur additional fees.

These costs can accumulate over time, making the IID a significant financial commitment for DUI offenders.

Legal and Safety Considerations

While installing an IID is a mandatory step for many DUI offenders, it also plays a crucial role in promoting road safety:

Preventing Repeat Offenses: By requiring DUI offenders to blow into the device before driving, the IID helps prevent impaired driving and reduces the likelihood of repeat offenses.
Legal Compliance: Complying with court orders to install an IID ensures that you meet state requirements and can regain your driving privileges without further legal complications.
Safety Assurance: Regular alcohol tests through the IID provide ongoing assurance that you are not driving under the influence, contributing to overall road safety.

How to Install an Ignition Interlock Device

To install an IID, follow these steps:

Choose a Provider: Select a state-approved IID provider in Kansas.
Schedule Installation: Arrange for a technician to install the device in your vehicle.
Complete the Process: After installation, you will need to provide periodic breath samples as required by the device.
Maintain Compliance: Ensure timely payments for maintenance fees and attend all required calibration appointments to keep the IID functioning correctly.

Seeking Legal Assistance

If you are facing a DUI charge and are unsure about the requirements for installing an IID, consulting with an experienced attorney is crucial. A knowledgeable attorney can help you understand your rights, navigate court orders, and potentially minimize the impact of the DUI on your driving privileges.

Conclusion

If you've been charged with or convicted of a DUI in Kansas, installing an ignition interlock device is likely a mandatory step to regain your driving privileges. The duration of IID installation depends on factors such as the number of DUI offenses, BAC levels, and whether you refused a breath test. While the IID can be inconvenient and costly, it serves as an essential tool for promoting road safety and preventing impaired driving.

Compliance with court orders to install an IID is crucial to avoid further legal penalties and to regain the ability to drive legally. If you’re facing a DUI charge, seek legal advice promptly to ensure you understand your obligations and navigate the process effectively.

For more information on DUI laws and ignition interlock devices, or to get legal assistance, contact a qualified attorney today.

Does a DUI Diversion Count as a Prior Offense for a New DUI?

When an individual is charged with his or her first DUI, the state (or city) may offer the individual a diversion agreement in lieu of pursuing the case in court. These diversion agreements require a defendant to complete specific tasks, such as substance abuse treatment, for a brief period of time. Upon completion of such a diversion agreement, the state simply dismisses the DUI charge rather than accepting a plea or seeking a conviction. Largely, diversions are not treated as plea bargaining and are not considered judgments or agreements of criminal guilt—they are not treated like convictions. But what is the effect of a DUI diversion on the classification of a new DUI charge? Section 8-1567 classifies DUIs based upon previous DUI convictions. The classification of the DUI charge will determine how long the defendant’s sentence is and how much he or she is fined. Below is a brief overview of how diversion agreements work in determining the classification of a DUI.

Effect Of Diversion On New DUI

In contrast to how diversions are generally treated by the law, they are considered equivalent to convictions under Section 8-1567. Thus, a diversion will be treated as a first conviction when the individual is found guilty of a second DUI. Despite the rather drastic implications of this, Kansas courts have repeatedly decided challenges in favor of treating diversions as convictions under Section 8-1567. Thus, even when the diversion is granted to the individual as a minor, the court in State v. Bishop upheld treating the diversion as a conviction. So long as the diversion was granted after July 1, 2001, it still applies in determining the classification of the DUI regardless of the defendant’s age.

Diversions are also counted as convictions even when a defendant agrees to the diversion without first talking to an attorney. In State v. Youngblood, the Kansas Supreme Court decided that the Sixth Amendment’s guarantee of counsel did not have to be waived for a valid diversion agreement because a diversion is treated as a contract to avoid criminal prosecution, not part of the criminal prosecution itself. Thus, the right to consult (and the need to formerly waive the right) never attaches because the diversion is an agreement to delay and ultimately dismiss proceedings, rather than determine guilt. Applying this standard in State v. Tims, the Court determined that un-counseled diversions were to be treated as a conviction. This is true even though the non-criminal contract has very real and devastating criminal consequences under Section 8-1567 and even though the diversion relieved the state of proving the defendant’s guilt in the first DUI beyond a reasonable doubt.

Another issue that is frequently litigated regarding diversions is the retroactive application of Section 8-1567. Kansas formerly imposed a five-year period of looking at diversions. This meant that only a diversion occurring with five years of a new DUI charge would be treated as a conviction. In 2011, the Kansas Legislature removed this time limitation. Now, any diversion occurring after July 1, 2001 is treated as a conviction. But what about diversions entered between 2001 and the new law passed in 2011? The Kansas Supreme Court answered this question in State v. Reese. The defendant argued that by changing the law, the considerations of whether or not a diversion should be entered into had changed: the defendant no longer only had to worry about an enhanced sentence for five years, but now forever. The Court was unsympathetic to this view and held that the 2011 amendment was to be applied to sentences from the date it was passed forward. Cases with these issues become less and less frequent as time passes, but Reese provides strong insight on how the Court may treat another change to the statute in the future.

For all the benefits diversions are able to offer in other contexts, they are treated identically to a conviction when classifying subsequent DUIs. The Kansas Supreme Court has repeatedly decided issues involving the application and treatment of diversions under Section 8-1567 in the favor of the state. This means harsher treatment of individuals, whether convicted or having entered into a diversion agreement. This highlights the importance of contacting capable legal counsel: not only when this issue of classifying a later DUI comes up, but when a diversion is offered for a first DUI. The decision to trade the requirement of a conviction beyond a reasonable doubt for an easy disposal of a DUI can have devastating consequences later on and the Kansas courts seem unconcerned with adjusting these requirements in favor of individuals.

If you find yourself charged with a DUI in Johnson County, Overland Park, Lenexa, Merriam, Olathe, Fairway, Shawnee or any other city in Johnson County contact our office for a free consultation.

Do Out-of-State DUI Convictions Count as Priors in Kansas DUI Cases?

In Kansas, each DUI convictions a person receives increases the severity of an additional DUI charge. For example, a first DUI is classified as a Class B Nonperson misdemeanor and carries a sentence of two days to six months in jail. When a person receives his or her second DUI, the crime is classified as a Class A nonperson misdemeanor, and the sentence can range from 90 days to one year in jail. When prior DUI convictions are all under Kansas’ DUI law, Section 8-1567, the application of this rule is fairly straightforward. But what about out-of-state DUIs? Below is a brief overview of how out-of-state DUIs work within the Kansas statute.

When Does A Prior DUI Conviction Not Effect A New Charge?

The United States offers a very unique system of governments working near and over-top-of one another. This generally causes little issue, but occasionally the ability of states to criminalize conduct its own legislator finds dangerous can poses problems. DUI statutes are a prime example of how much freedom each state has: a state could choose to not prohibit driving while intoxicated at all or a state may choose to prohibit driving even after one drink and everything in between. This means that an individual could be convicted of Driving Under the Influence in one state for conduct that isn’t even illegal in another state. The prime example of this can be seen in State v. Stanley.

In Stanley, the defendant was charged with a DUI in Kansas. He had previously been convicted of one DUI in Kansas and DWI in Missouri. The trial court treated both of these convictions as applying under Section 8-1567, resulting in a felony DUI charge and conviction for Stanley. However, the Court of Appeals reversed that decision based upon the conduct that the Missouri statute outlawed. Because the Missouri statute was broader—it criminalized a wider amount of conduct—than the Kansas law, the Missouri conviction could not be used to “bump up” Stanley’s DUI charge. The Missouri statute simply required “any manner” of impairment from alcohol, while Kansas only outlaws intoxication that makes “safely driving a vehicle” impossible. Conduct that violated the law in Missouri may not have violated the law in Kansas, so the court could not consider convictions under that Missouri statute to “bump up” a DUI charge.

There are three important points about when an out-of-state charge fails to apply under Section 8-1567. First, Section 8-1567 must be the broader of the two laws. If conduct would be legal in Kansas but a crime under the out-of-state statute, the conviction cannot apply to “bump up” classification. Second, the court isn’t interested in the details of the conviction. In Stanley, the defendant very well could have been too drunk to safely drive his vehicle when he was arrested and convicted in Missouri. But the court doesn’t want to “re-try” that old charge, so it doesn’t look to exactly what conduct the defendant did to get convicted. Instead, the court only looks at what the law the defendant got convicted under requires at a minimum. Finally, the court has also noted that municipal DUI laws that are broader than Section 8-1567 cannot apply as prior convictions, even though they happen in Kansas. For example, in State v. Wood, the court held that Lenexa’s municipal DUI law (which has since changed) was broader than Section 8-1567. Using the same logic as in Stanley, the court refused to apply that municipal conviction to “bump up” his current DUI charge.

How Can I Determine If A State’s DUI Law Is Broader Than Section 8-1567?

The unfortunate answer to this question is, “you probably can’t.” When courts deal with reading statutes, they are considered to be answering “questions of law.” This means that each time the matter comes before a higher court, the higher court gets to answer the question for itself; it doesn’t care what the lower court has said. Further, unlike questions of fact, it is much harder to predict how a court will answer a question of law. The Stanley court noted that it reached its conclusion by reading multiple decisions of Missouri courts that interpreted that law, and then compared that information to Section 8-1567. This is all very complex work that is open to multiple interpretations, and thus, answers. Currently, only Missouri’s DWI statute and Texas’ DUI statute (decided in State v. Butler) have been addressed, with both being too broad to apply under Section 8-1567.

Determining the effect of an out-of-state conviction on a new DUI charge is a tall order. It involves reading two statutes together from two different states, each with its own system of laws. Trying to correctly determine if the law is too broad to apply or narrow enough to “bump up” a new charge is a dangerous game. It is important to contact experienced legal counsel with the capability of research, comparing, and predicting how the court will read these laws together.

Can You Get a Hardship or Restricted License After a DUI in Kansas?

When it concerns a DUI charge, the vast amount of people fears losing their driver’s license the most. Kansas has strict penalties that are difficult to circumvent, however there is a process that will allow an individual to drive while they are serving their suspension. This is through a restricted license and thus modifies the long suspension. This is how it works:
If an individual submitted to the breath test, regardless of their BAC, Kansas will allow them to apply for a restricted license after 45 days of suspension as long as they install an ignition interlock device in their vehicle.

If the individual refused the breath test, Kansas will allow them to apply for a restricted license after 90 days of suspension as long as they install an ignition interlock device in their vehicle.

HOW CAN YOU GET YOUR ABILITY TO DRIVE BACK AS QUICKLY AS POSSIBLE?

Serve the mandatory suspension period: If your license is suspended you have to wait the requisite period of time before applying for the restricted license. (45 days for breath test failure, 90 days for a breath test refusal)
Complete a DC-1015 Form. (Kansas Application to Modify Driver’s License Suspension)
1. New DC-1015 (This is the new DC-1015 with the Post 7/1/22 Law Change
Install an ignition interlock device in your car
Take the ignition interlock device installation paperwork along with the DC-1015 form to the local DMV. Your driving privileges will be reinstated that day. Johnson County has two locations.
1. Mission Driver’s License Office 6507 Johnson Drive, Mission, KS 66202
2. Olathe Driver’s License Office 13507 S. Mur-Len Rd. #137, Olathe, KS 66062

Can You Overturn an Administrative Driver’s License Suspension?

K.S.A. 8-1001 lays out when an officer can “require” a person to submit to a breath test or lose their license. The first thing is that the officer is required to have reasonable grounds to believe the individual is operating or trying to operate a vehicle while intoxicated. However, this belief alone is not enough as the individual must have also been either involved in a vehicle accident or been taken into custody. When these requirements are met, a breath test indicating a positive result or a refusal to submit to a breath test can both result in a year long suspension of the individual’s driver’s license under K.S.A. 8-1001(k)(5). This suspension can be overturned at the administrative hearing or later on by court review. However, it is quite rare for a decision to be overturned. Only a handful out of the 200 times a suspension has reached the Court of Appeals on appeal, has a suspension been overturned. Those cases are briefly discussed below.

MANZANO V. KAN. DEP’T OF REVENUE, 50 KAN. APP. 2D 263 (2014)

The Constitution requires that before a person’s driver’s license can be suspended, the person is entitled to an “opportunity to be heard at a meaningful time and in a meaningful manner.” Part of this opportunity is the administrative hearing. In Manzano, the hearing officer continually interrupted the presentation of evidence and ultimately ended the hearing before the accused got a chance to argue. The district court found this behavior amounted to far less than a fair opportunity to be heard. Though judicial review is part of the overall design of due process, when a meaningful administrative review is not given to the accused, the defect in due process is fateful to the license suspension. Although the district court decided to reinstate the accused’s driver’s license in Manzano, it could have simply sent the matter back for a proper hearing—either resolution is permitted and is a matter for the reviewing court to determine.

GONZALES V. KAN. DEP’T OF REVENUE, 386 P.3D 542 (2016)

Two important points of law can be drawn from this case. First, a lawful arrest must predicate a breath test request. Unless the law enforcement officer had probable cause to complete the arrest and did so lawfully. The officer in Gonzalez did not have probable cause to arrest Gonzalez, making the breath test he refused unable to support the suspension of his driver’s license.

Secondly, the state is limited to the arguments for suspending the accused’s driver’s license that it initially argued at the administrative level. In Gonzalez, the state tried to change the offense Gonzalez was suspected of, from DUI to underage DUI, to reinforce a finding of probable cause supporting the requested breath test. The court did not permit this and excluded evidence that the officer had gathered concerning Gonzalez’s age, as well as the required probable cause that his BAC was higher than the legal limit of 0.08, rather than the lesser legal limit for an underage DUI. The Court of Appeals clarified that the state has to be consistent with its arguments, just as the accused is required to be. Thus, the attempt to introduce new arguments is not permissible in a revocation hearing review.

LUNA V. KAN. DEP’T OF REVENUE, 337 P.3D 73 (2014)

In Luna, the accused wasn’t a native English-speaker and didn’t understand how long he had to file for the administrative hearing. The state can permit an appeal when “excusable neglect” is shown to be the cause of the late filing. However, despite Luna’s assertions of the reason for his late appeal, neither the agency nor the court made any findings of whether his claims were believed. Instead, both merely denied his request. The Court of Appeals didn’t agree with this action and remanded the case. The agency or the court may not believe the accused’s facts constitute excusable neglect, but there must be findings that indicate what the agency and the court found. The matter must be reexamined if no such findings are present.

MCINTOSH V. KAN. DEP’T OF REVENUE, 291 KAN. 41 (2010)

Once an accused has refused to submit to a breath test, can he change his mind? The Kansas Supreme Court decided in Standish v. Department of Revenue, that under certain circumstances, that this is a right. The issue in this case was whether the licensee could still be suspended if a valid Standish request was made but the arresting officer refused to administer the test to them. The Kansas Supreme Court determined that when the accused complies with Standish by making a rapid withdrawal of their refusal, they should be allowed to take the test and a failure to administer the test can result in the suspension of the accused’s license being overturned. To allow otherwise cuts against the purpose of the implied consent law. However, the changing of a person’s mind must occur abruptly and also comply with Standish.

JOHNSON V. KAN. DEP’T OF REVENUE, 334 P.3D 344 (KAN. CT. APP. 2014)

In Johnson, the accused’s license was initially suspended. However, the district court, upon judicial review, reversed the suspension. This was mainly due to the police dashcam video presented as evidence. When the state appealed this decision, they failed to include the dashcam video as part of its record for the Court of Appeals. This failure to supply the full record led the court to determine that the district court’s action of reversing the suspension was appropriate.

Is Plea Bargaining a DUI to a Lesser Charge Possible in Kansas?

The short answer is NO. Kansas does not allow a DUI to be plea bargained to a lesser offense. To understand the reasoning behind this, you will need to learn a few things about the criminal justice system as a whole and how it operates.

WHAT IS PLEA BARGAINING AND HOW DOES IT WORK?

There are numerous crimes committed in Johnson County every day and people get arrested in connections with said crimes. Everyone who gets arrested and accused of a crime has a Constitutional right to have an impartial third-party review the evidence against them and decide whether the State met their required burden of proof to show that the individual has in fact committed the crime they were charged with. An individual cannot be punished for the crime until the State has proven that the individual committed the crime. Neither the court system nor the State is permitted to bring every individual charged with a crime to trial. Now is when plea bargaining comes into the picture.

Essentially, a plea bargain is an agreement between the prosecutor’s office and the defendant. If a defendant agrees to enter into a plea bargain with the prosecutor’s office, the defendant is foregoing the prosecuting office from having to prove they have committed the crime, rather the defendant is admitting to committing the crime. In exchange for the defendant making the prosecutor’s job easier, the prosecutor will either agree to recommend a sentence that the defendant agrees with or the prosecutor will lessen the charged crime’s severity or both.

Many individuals choose to accept a plea bargain instead of taking the risk of going to trial, losing, and then possibly receiving a harsher sentence.

HOW DOES AN ATTORNEY NEGOTIATE A PLEA BARGAIN?

An attorney’s job is to advocate for their client during all stages of the criminal justice process. This includes the plea-bargaining stage. Every case is different, and a criminal defense attorney can use a variety of tactics to obtain a favorable plea bargain for their client. Here are a few ways an attorney will attempt to influence a plea offer:

Show the prosecutor what problems their case. They have to be careful here to not show problems that could be fixed before trial.
Disclose to the prosecutor that the defendant is addressing the cause of the problem which led them to commit the crime. A common example of this is having the defendant partake in drug and alcohol counseling.
Put doubt into the prosecuting attorney’s mind that certain evidence may not be available during trial. This is when a defense attorney has a legal way to exclude evidence from being used at trial. A prosecutor who is uncertain whether they will have certain key evidence at trial may be more likely to offer a good plea bargain rather than potentially lose the case altogether at trial.

DO MANY CASES GET PLEA BARGAINED?

Yes. A very large number of criminal cases are resolved by a plea bargain. Most individuals who are accused of a crime prefer to have known, tolerable outcome, rather than an uncertain, possibly ruinous outcome.

WHY CAN’T AN ATTORNEY PLEA BARGAIN A DUI CASE?

In Kansas, this is against the law. The State does not permit a prosecutor to plea bargain a DUI nor does it permit a judge to permit such a plea bargain. This is the relevant area of the law:

K.S.A. 8-1567 (b)(1)(m)

“No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or a violation of any ordinance of a city or resolution of any county in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this section or by the ordinance.”

IS THAT LEGAL?

Most people view this law as being unfair so that is a good question. So far it has been challenged numerous times and each time it has been upheld. State v. Compton was the most significant challenge. In Compton, the defense contended that limiting a prosecutor’s ability to plea bargain a DUI was an illegal appropriation of one branch of government’s powers by another. The defendant essentially claimed that the legislative branch limiting the executive and judicial branch’s powers was illegal. The Kansas Supreme Court found that the law did not limit the prosecutor’s powers and therefore it did not violate the separation of powers doctrine.

How Do Prior DUI Convictions Affect a New DUI Charge in Kansas?

American criminal law tends to treat recidivism—additional convictions for similar crimes—very harshly. A striking example of this under Kansas law can be seen under Section 8-1567, dealing with DUIs. The exact same conduct can result in a vastly different classifications and sentences, solely because of previous convictions. Below is a brief overview of how previous DUI convictions work to change a current DUI charge.

DUI Convictions Under Section 8-1567

Section 8-1567 lays out the four separate classifications and corresponding sentences for DUIs based on prior DUI convictions. All four of these classifications require the state to prove the same elements beyond a reasonable doubt. The state can prove that the individual drove with a blood alcohol content of .08 or more (including up to three hours after driving) or the individual was too intoxicated from alcohol, drugs, or both to safely drive the vehicle. If the state is able to prove its allegations, the evidence of prior convictions will come in during sentencing. However, the state must provide notice of which classification it will seek upon filing. Failure to provide this notice will limit the state to the lowest sentencing range, as the Kansas Supreme Court noted in State v. Larson.

Not all convictions apply under Section 8-1567. Any conviction under the statute itself will fall within its reach and thus be considered during sentencing. Additionally, convictions for refusing to submit to a breath test or injury-causing crimes (such as aggravated battery or manslaughter) involving intoxicated driving are counted. When multiple convictions arise from single incident, only one conviction from each arrest may be counted. Further, municipal convictions and out-of-state convictions for DUIs may or may not apply, depending on a number of factors. Finally, convictions occurring before July 1, 2001 are not considered. It is important to note that this is a date specifically set within the statute, rather than a time limit based upon the conduct. This means as each year passes, the statute will account for older and older DUI convictions.

No Previous Convictions

When no previous convictions apply to the case, the DUI charge is classified as a Class B Nonperson misdemeanor. This classification carries a potential sentence of two days to six months in jail. The court may impose 100 hours of community service in place or jail time. A fine between $750 and $1,000 is also possible, at the court’s decision. House-arrest is available on this type of DUI, though the defendant will have to spend at least the first two days in jail before this is granted.

One Previous Conviction

Upon a second conviction, the DUI charge is elevated to a Class A Nonperson misdemeanor. The sentence for this classification will be between 90 days and one year in jail. The defendant will also be fined at least $1,250 and up to $1,750. Probation, suspension of sentence, and parole are not available until the defendant has served at least 5 days in jail to begin the sentence. House arrest and work-release programs are available for this classification.

Two Previous Convictions

The statute offers two types of classification for third DUI charges. The distinction turns on whether any conviction has occurred within the previous 10 years of the third charge. If the third charges come more than 10 years after the defendant’s release from jail (rather than conviction) for the most recent DUI, the third DUI is a Class A Nonperson misdemeanor. The defendant is again sentenced to between 90 days and one year in jail. A fine will also be imposed: at least $1,750 and up to $2,500. The defendant’s sentence may not be suspended, paroled, or changed to probation until he or she serves 90 days in jail. The court may allow for a work release program during these 90 days, allowing the defendant only time to go to work. House arrest is also available following the mandatory 90-day incarceration.

When the most recent DUI is within the preceding decade, the offense is “bumped up.” This result in the DUI being classified as a Nonperson felony charge. The sentence and fine are the same (90 days to 1 year; $1,750 to $2,500), and the defendant will again be required to serve the first 90 days in jail before any probation, parole, or suspension of sentence can take effect. House arrest may be granted after this 90-day period with the condition of electronic monitoring of the defendant. The main “bump up” between the two offenses isn’t time in jail, but the felony classification. Having a felony conviction can have several negative repercussions, such as prevention from obtaining certain jobs. It will generally (though not always) be treated even more severally than multiple misdemeanor convictions.

Three or More Previous Convictions

When the DUI is the fourth or beyond, the conviction is classified as a Nonperson felony. The sentence is 90 days and up to one year in jail, with a fine of $2,500. No parole, probation, or suspension of sentence is allowed until the defendant has served 90 days in jail. Both work release and electronic monitoring house arrest are available for these sentences. Following the completion of the sentence, the court may impose additional supervision requirements upon the defendant for one year. These requirements are aimed at ensuring the defendant does not drink and drive in the future, and may include interlock devices or substance abuse treatment.

Having multiple convictions for DUIs can quickly result in inflated sentencing and classification. Identical conduct will be punished with much harsher sentences and fines solely because of previous convictions. It can be difficult to determine which convictions are counted under the statute and what options are available outside of jail time for each. Contacting experienced counsel is essential to ensure that the idea of recidivism isn’t unjustly turned against an individual who has made some past mistakes.

TOP 5 THINGS TO DO WHEN PULLED OVER FOR A DUI

DON’T ADMIT TO CONSUMING ALCOHOL

One of the first mistakes people often make when pulled over is admitting they’ve had alcohol. It may seem harmless to say, “I had a drink or two,” but this admission gives law enforcement enough reasonable suspicion to escalate the situation. Once you confirm you’ve been drinking, it provides the officer with more justification to remove you from the vehicle, conduct field sobriety tests, or administer a breathalyzer.

Why It Matters: Admitting to consuming alcohol immediately strengthens the officer's case. The simple act of acknowledgment gives them grounds to suspect impairment, even if you aren’t legally intoxicated. Rather than volunteering this information, calmly state that you choose not to answer the question. Under the law, you are not obligated to incriminate yourself, and staying silent is within your legal rights. This is particularly important because officers will often interpret your words and behavior in a way that helps build their case against you.

DON’T PERFORM THE DIVIDED ATTENTION TESTS LIKE 123 OR ABC-TYPE TESTS

When an officer suspects you of DUI, they might ask you to perform divided attention tests, such as counting backward or reciting the alphabet. These tests seem straightforward, but they’re designed to be tricky, especially under pressure. Even someone who hasn’t had a drop of alcohol could struggle with these tests due to anxiety, stress, or confusion. Mistakes are common, and officers often subjectively interpret the results in their favor.

Why It Matters: Even if you pass these tests flawlessly, the officer might still claim you slurred your speech, missed a letter, or appeared confused, all of which can be used as evidence against you. By declining to perform these tests, you limit the potential for the officer to use any missteps to suggest impairment. Instead, politely refuse, stating that you prefer not to participate. You are not legally required to perform these roadside tests in many states, and refusing them may prevent the officer from gathering further evidence to support their suspicion.

DON’T PERFORM THE FIELD SOBRIETY TESTS

Field sobriety tests (FSTs) are another tool officers use to determine whether you are impaired. These tests typically include walking in a straight line, standing on one leg, or following an object with your eyes. However, these tests are notoriously difficult to perform, even for sober individuals. Factors such as poor balance, medical conditions, nerves, and even the environment (like uneven ground) can make passing these tests extremely challenging.

Why It Matters: Field sobriety tests are highly subjective, meaning the officer’s interpretation of your performance can vary. You might feel you performed well, but the officer could claim you were off-balance, swayed, or didn’t follow instructions properly. Declining to perform these tests minimizes the amount of subjective evidence against you. In most cases, you have the legal right to refuse to participate without facing criminal penalties, although refusal might still lead to an arrest if the officer feels they have other grounds for suspicion. However, without the results of these tests, it becomes harder for the prosecution to prove impairment later.

DON’T ADMIT TO DRIVING THE VEHICLE

Another critical component of a DUI charge is proving that you were the one operating the vehicle. If the officer didn’t see you driving or has no clear evidence of who was behind the wheel, they may ask questions to fill in the gaps. Even if you were driving, it’s crucial not to admit it. Any admission of operating the vehicle can later be used as an essential piece of evidence against you in court.

Why It Matters: For a DUI conviction, the prosecution must prove beyond a reasonable doubt that you were operating or attempting to operate the vehicle. If the officer didn’t witness you driving, the burden of proof becomes more difficult without your admission. Politely decline to answer any questions related to your driving and remain silent. Remember that you have the right to remain silent and consult with an attorney before making any statements that could be used against you. Remaining silent can be one of the most effective ways to protect yourself.

DON’T TAKE A BREATH TEST

Refusing a breath test can feel intimidating, especially since law enforcement may warn you about the potential consequences, such as the suspension of your driver’s license. However, submitting to a breath test provides the officer with direct scientific evidence of your blood alcohol content (BAC), which is often the strongest piece of evidence in a DUI case.

Why It Matters: If you refuse to take the breath test, you deny law enforcement the opportunity to collect irrefutable scientific evidence of your intoxication. While refusal might lead to administrative penalties, like a license suspension, it could significantly weaken the prosecution’s criminal case against you. Without a clear BAC result, proving beyond a reasonable doubt that you were driving under the influence becomes much more challenging for the prosecution. However, it’s essential to understand that refusal rules can vary by state, so it’s wise to familiarize yourself with local DUI laws and consult an attorney immediately if you find yourself in this situation.

WHAT HAPPENS AT A DUI ADMINISTRATIVE HEARING?

Any person that is served with an officer’s certification and notice of suspension after a DUI arrest may request an administrative hearing to contest the suspension of their driver’s license. The hearing must be requested in writing and the appropriate fee must be paid. The request must be postmarked within 14 days of the issuance of the officer’s certification and notice of suspension.

To learn more about the DC-27 Officers Certification and Notice of Suspension click here.

After an administrative hearing is requested there is limited discovery that one can do to prepare for the hearing. You are entitled to receive the following documents before the hearing takes place.

The officer’s certification and notice of suspension
In the case of a breath or blood test failure, you are entitled to copies of documents indicating the result of any evidentiary breath or blood test administered at the request of a law enforcement officer.
In the case of a breath test failure, a copy of the affidavit showing certification of the officer and the instrument.
In the case of a breath test failure, a copy of the Kansas department of health and environment testing protocol checklist.
An order from the Division of Motor Vehicles allowing the licensee or their attorney to review any video or audio tape made of the events upon which the administrative action is based.

The discovery listed above is usually sent to the person who has requested the administrative hearing or their lawyer via us mail. The order from the division to inspect the video/audio footage will not be sent to the licensee. The division will also send notice of the place and time that the administrative hearing is to take place.

On the date of the hearing, several people will be present. The hearings are set one after another every 15 minutes. The licensee and the licensee’s lawyer will make up your side. The other side will consist of the officer or officers who certified your DC-27 and anyone else that you requested be there who was in the physical presence of the officer whom served you with the DC-27. The only other relevant party is the Administrative Hearing Officer (Judge) from the Kansas Department of Revenue.

The license hearings are limited in scope. In other words, you can only talk about specific topics.

If you get off topic or start talking about something that is not within the scope of the hearing the Judge may let you continue or they may tell you to keep it to the information that is within the scope of the hearing. The judge will only consider evidence presented that is within the scope of the hearing.

Things You Can Talk About If You Refused The Breath Or Blood Test.

Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the person actually refused to submit to and complete a test as requested by a law enforcement officer.

Things You Can Talk About If You Took The Breath Test And Failed.

Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the testing equipment used was certified by the Kansas Department of Health and Environment. (See Can the Breathalyzer be beat?)
Whether or not the person whom operated the testing equipment was certified by the Kansas Department of Health and Environment. (See Can the Breathalyzer be beat?)
Whether or not the testing procedures used substantially complied with the procedures set out by the Kansas Department of Health and Environment.
Whether or not the test result determined that the person had an alcohol concentration of .08 or greater in such person’s breath.
Whether or not the person was operating or attempting to operate a vehicle.

Things You Can Talk About If You Took The Blood Test And Failed.

Whether or not the officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial vehicle while having alcohol or drugs in their system.
Whether or not the person was in custody or arrested for an alcohol or drug offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death.
Whether or not the officer had presented the person with the oral and written notice required by K.S.A. 8-1001. (See What is a DC-70 for further information)
Whether or not the testing equipment used was reliable.
Whether or not the person whom operated the equipment was qualified.
Whether or not the testing procedures were reliable.
Whether or not the test results determined that the person tested had an alcohol concentration of .08 or greater in such person’s blood.
Whether or not the person was operating or attempting to operate a vehicle.

So now that you know what you can talk about and who can attend the hearing you need to know what evidence can be presented, what the burden of proof is and who has the burden of proof. Remember you are not entitled to help from the hearing officer or anyone else during the hearing, it is always best to have a lawyer that is well versed in this administrative process. In some cases, it can be the difference between keeping your driver’s license and losing your driver’s license.

What Evidence Can Be Presented At The Hearing? Just like the scope of the hearing is limited. The evidence that can be presented at the hearing is limited. The only evidence that can be presented at the hearing must be in the following form:

The documents that are produced in discovery.
The testimony of the licensee.
The testimony of the certifying officer.
The testimony of any witness present at the time of the issuance of the DC-27, that was named by the licensee.
Any affidavit submitted by other witnesses.
Any document submitted by the licensee to show the existence of a medical condition
Any video or audio tape record of the events upon which the administrative action is based.

Who’s Burden Of Proof Is It At The Administrative Hearing? It is the Licensee’s burden to prove by a preponderance of the evidence that the facts set forth in the officer’s certification are false or insufficient and that the order suspending the licensee’s driving privileges should be dismissed.

What Is a DUI Diversion and How Does It Work?

A DUI diversion is a method of resolving an outstanding DUI charge. Like most resolutions, it has positives and negatives for the person accused of a DUI. A diversion is not for everyone and not everyone will be offered a diversion. A diversion is an agreement between the person that is being prosecuted for driving under the influence and the city or state that is prosecuting them for the violation. Like any agreement, each party is giving up something or forgoing some benefit at the request of the other party. In the DUI diversion context, the accused party will be asked to waive some of their rights and perform certain tasks in exchange for a dismissal of the DUI case against them.

In a typical diversion contract the defendant will agree to do the following:

Waive their right to trial by jury.
Waive their right to confront witnesses.
Waive their right to speedy trial.
Agree or stipulate to the facts as alleged in the police report.
Agree of stipulate to jurisdiction.
Obtain an alcohol and drug evaluation.
Comply with any recommendations of the drug and alcohol evaluation.
Pay a diversion fee of at least $750.
Abstain from Drug and alcohol use for 12 months.
Abstain from violating the laws of any city, state, or the United States.
Submit to a blood, breath or urine test at any time during the diversion term.
Agree to be monitored by a diversion monitor (including monthly meetings)
Agree to notify the court of any change in address in the next 12 months.
Attend a DUI Victim impact panel.
You must agree to inform your diversion officer within 72 hours of any arrest or interaction with law enforcement during the diversionary period.

In a typical diversion contract the city or state agrees to:

The city or state will agree to continue the case for 12 months.
If all requirements are met by the defendant in that 12 months, the city or state will dismiss the DUI charge and will not refile it.

What are the Problems with DUI Diversion?

As you can see a diversion of a DUI charge requires a lot from the person that seeks to enter into one. If a defendant doesn’t take the diversion contract very seriously it usually doesn’t work out and the defendant ends up losing the diversion.

It’s not available to everyone. A diversion is a once in a lifetime agreement. If you’ve done one in the past you are not going to allowed to do on in the future. Even if you are a first time offender you still might not be able to enter into a diversion agreement with the city or state. It is completely up to the City or State that is prosecuting you to determine if they want to offer you a diversion. Some jurisdictions won’t allow you to do a diversion if you were involved in an accident, if the DUI was based on drugs, if you have some other criminal history, et. cetra.

You have to waive many of your rights. A prerequisite to signing the diversion agreement will be that you waive your rights to a jury trial, a speedy trial and to confront witnesses. These three rights are very important. If you waive these rights and then make a mistake on diversion, it will be very difficult, if not impossible, to prevail at a trial.

You have to stipulate or agree to the police reports. This should be pretty self-explanatory. If you agree or stipulate to the police reports in your case, you are severely handicapping yourself if you ever have to take the case to trial. It will be nearly impossible for you to prevail at trial if you have already agreed that you committed the DUI offense.

Diversion can be misleading. Diversion is often presented to defendants as a way to “Keep the DUI off your record.” That is not entirely accurate. When you enter into a diversion agreement and successfully complete it, you are keeping the DUI off your record as a conviction. There is an important difference between doing a diversion and taking the case to trial and getting it dismissed. If you do the diversion, any DUI you receive in Kansas after the diversion will be a second time DUI. The DUI diversion will count to elevate the level of any future DUI you receive. Also, a DUI diversion will still be reported to the Kansas Bureau of Investigation and will go on your criminal record, but, as a diversion and not a conviction. Furthermore, the DUI may still be reflected on your driving record if you do not prevail at your administrative hearing.

Diversion is tough. A diversion agreement requires you to do many things, some of which are very difficult. By far and away the most difficult thing for most people to do is abstain from drugs and alcohol for the 12 month period they are required to. Remember you are subject to random tests. If you fail a test, the city or state will try to take the diversion away from you. For the entire 12 months you have to remember that you are subject to all the rules of the diversion and any mistake will cause you to lose it.

Diversion can be expensive. Most cities or counties will require that a defendant pay their diversion fee upfront. It is rare for a jurisdiction to allow you to make payments on the diversion cost. Also, if you end up losing your diversion due to a violation, many jurisdictions will not give you credit for diversion fees that you have already paid.

Diversion doesn’t completely keep your record clean. Most cities and counties will report the diversion agreement to the Kansas Bureau of Investigation, the repository for all criminal records in Kansas. If you want to completely get that record removed, you still have to wait the proscribed period of time (5 years) before you can completely expunge the record.

What are some Advantages of DUI diversion?

Diversion can be the best option to resolve a DUI charge. Depending on a defendant’s particular set of facts, their motivation and their ability to complete the diversion successfully can be a very good option for a defendant.

It is a known outcome. Diversion can be the “safe play.” Sometimes when charged with a crime, the anticipation and uncertainty can be the most difficult thing for a defendant to overcome. If a defendant is looking at taking a case to trial there is uncertainty. If you take a case to trial you either win or you lose, you either get punished or you don’t. To most people that uncertainty is unwanted. If you do a diversion, the outcome is a known outcome and is able to be controlled by your actions.

You stay out of jail. Every single DUI, even a first-time DUI, calls for jail time if convicted. If you successfully complete diversion, you are never sentenced on the case so you never have to spend anytime in jail.

You will not have a conviction on your record. This can be very important when you are seeking employment, a place to live or trying to get into a school. If you enter into a diversion agreement and complete it successfully, you can honestly answer “NO,” when an employer asks you if you have ever been convicted of a crime.

You won’t lose your license in the criminal case. To be clear, if you do a diversion it is not a guarantee that you won’t lose your license administratively. You can still lose your license on the administrative side. However, if you are able to win your administrative case and then do a diversion on the criminal case, you will not lose your license at all.

What Is Community Weekend Intervention Program (CWIP) in Kansas DUI Cases?

The Community Weekend Intervention Program (CWIP) is an alternative sentencing option available to some individuals convicted of a DUI (Driving Under the Influence) in Kansas. In Kansas, every DUI conviction, even for first-time offenders, carries a mandatory jail sentence. For those convicted or pleading guilty to a first-time DUI offense, the law requires at least 48 hours of incarceration. However, the CWIP program offers a way for defendants to fulfill this mandatory requirement without having to spend time in a county jail.

Understanding the CWIP Program

The CWIP Program is designed to provide an alternative to spending 48 hours in jail. Instead of being incarcerated, individuals sentenced to CWIP participate in a supervised, structured weekend at an approved facility. These facilities are usually hotels or similar accommodations where participants are monitored but not confined in a traditional jail environment. The goal is to create an atmosphere conducive to reflection and rehabilitation while still fulfilling the legal requirement for jail time.

During the two-day CWIP stay, participants undergo drug and alcohol counseling and attend educational programs aimed at helping them understand the consequences of their actions, manage substance use, and prevent future offenses. The time spent at the CWIP facility counts as jail time, so participants receive credit for serving their sentence just as they would if they were in county jail.

Benefits of the CWIP Program

The CWIP program offers several advantages for first-time DUI offenders in Kansas:

Avoiding Jail Time:
One of the most significant benefits is the ability to avoid spending 48 hours in county jail. While the CWIP facility is still restrictive and participants are under supervision, it provides a more comfortable and less intimidating environment than traditional incarceration. The setting is typically a hotel or residential facility, and while you are not free to come and go as you please, the experience is less harsh than a jail stay.
Drug and Alcohol Education:
A major component of the CWIP program is the counseling and education that participants receive. These sessions focus on the risks of alcohol and drug abuse, the legal consequences of DUI offenses, and strategies for avoiding similar behavior in the future. The educational aspect of CWIP not only fulfills the defendant’s sentencing requirement but also provides valuable insights and tools for making healthier decisions.
Probation Requirement Fulfillment:
For many individuals convicted of DUI, the court also mandates that they undergo drug and alcohol counseling as part of their probation agreement. Completing the CWIP program often satisfies this requirement, so participants can fulfill both their jail sentence and counseling obligations simultaneously. This can streamline the post-sentencing process and allow individuals to complete their probation terms more efficiently.
Less Disruptive to Daily Life:
While still a serious consequence, participating in CWIP is generally less disruptive to a person’s personal and professional life than spending time in jail. Because the program typically takes place over a weekend, individuals can avoid missing work or family responsibilities during the week. In contrast, serving time in county jail could lead to missed workdays, potential job loss, or other complications that extend beyond the legal consequences.
Rehabilitation Focused:
The CWIP program emphasizes rehabilitation rather than simply punishment. By focusing on education and substance abuse treatment, the program aims to help participants avoid future offenses and make positive changes in their behavior. This rehabilitative approach can be especially beneficial for first-time offenders who may have made a mistake but are committed to avoiding similar behavior in the future.

Who Is Eligible for the CWIP Program?

Not everyone convicted of DUI in Kansas will be eligible to participate in the CWIP program. Typically, CWIP is available only to first-time DUI offenders who are sentenced to the mandatory 48 hours of incarceration. However, whether or not you can participate in the program ultimately depends on the judge presiding over your case. The court has the discretion to allow or deny a request for CWIP, and some jurisdictions may not offer the program at all.

Before assuming that CWIP is an option, it’s important to consult with your defense attorney. They can advise you on whether the court in your jurisdiction allows CWIP and whether you meet the eligibility criteria. If you are eligible, your attorney can request CWIP as part of your sentence, which may help you avoid jail time and fulfill your probation requirements more efficiently.

The CWIP Process: What to Expect

If the judge grants your request to participate in the CWIP Program, here’s what you can typically expect during the process:

Check-In:
Upon your arrival at the CWIP facility, you’ll check in just as you would at a hotel. You may be required to surrender any personal items, such as phones or electronics, that could be considered distractions during your stay. The environment is closely supervised, and you will be expected to follow a set schedule during your time there.
Supervised Stay:
While CWIP is not jail, participants are still under supervision for the duration of their stay. You won’t be allowed to leave the facility, and your movements will be restricted to designated areas within the hotel or residential center. The supervision ensures that you remain compliant with the program’s rules and that you complete the required hours.
Educational Sessions:
Throughout the weekend, you’ll attend scheduled counseling and educational sessions focused on alcohol and drug abuse prevention. These sessions are designed to educate you about the dangers of impaired driving, the effects of alcohol and drugs on the body, and the legal consequences of repeat offenses. You may also participate in group discussions, role-playing exercises, and other activities aimed at promoting behavioral change.
Completion:
After successfully completing the two-day program, you will receive documentation that verifies your participation. This documentation is important because it proves to the court that you have fulfilled your jail sentence and, in many cases, your counseling requirement as well. Your attorney will present this documentation to the court to ensure that your sentencing obligations have been met.
Follow-Up:
Depending on the specifics of your case, the court may require additional follow-up, such as probation check-ins or further counseling. However, completing the CWIP program generally covers the core requirements for first-time DUI offenders. Your attorney can advise you on any further steps you need to take to remain compliant with your probation agreement.

Is CWIP Available in All Courts?

The availability of the Community Weekend Intervention Program varies depending on the jurisdiction. While many courts in Kansas allow CWIP as an alternative to jail time for first-time DUI offenders, it is not universally available in all counties or municipalities. Some judges may prefer more traditional sentencing methods, while others embrace CWIP as a more rehabilitative option.

It’s essential to work closely with your attorney to determine whether the program is available in the court where your case is being heard. If CWIP is an option, your attorney can advocate for it as part of your sentencing, potentially saving you from the more punitive aspects of a DUI conviction.

Additional Resources for CWIP in Kansas

If you are considering CWIP as part of your DUI case, here are a few helpful links with more information about the program and its requirements:

CWIP Packet: This packet includes all the forms and guidelines required to participate in the CWIP program. Make sure to review this carefully with your attorney to understand the obligations and rules involved.
CS Counseling Services CWIPS: This counseling service provides information on CWIP programs in specific Kansas jurisdictions and offers additional resources for completing DUI-related counseling requirements.

DC-27 Form Explained: What is the DC-27 and what do you do with it?

What Is the DC-27 Form?

The DC-27 form is a document issued by a law enforcement officer following a DUI arrest under specific circumstances. You will be handed this form if:

You provide a breath sample that indicates your Blood Alcohol Concentration (BAC) is over the legal limit of 0.08%.
You refuse to provide a breath sample when requested by the officer.

The form is named after the number printed on the bottom left corner, "DC-27." This form is a staple in Kansas DUI cases and is recognized throughout the legal community. You will notice that the copy handed to you by the officer is pink in color, making it easy to identify among your paperwork.

While being arrested for a DUI is a stressful experience, it’s important to carefully read the DC-27 form and understand its significance. At first glance, the form looks like a typical notice, but it actually serves as a temporary driver’s license that allows you to continue driving under certain conditions for a short period.

How long is the temporary driver’s license good for?

The DC-27 form acts as a temporary driver’s license for the next 30 days following your arrest. This temporary license allows you to continue driving, but you must carry the pink DC-27 form with you while doing so. If you fail to have this form with you, law enforcement can consider you to be driving without a valid license.

The form also highlights a critical deadline: after 30 days, the temporary license will expire, meaning you will no longer have the legal right to drive unless you take certain actions to address the situation. If you do nothing, your driver’s license will be automatically suspended once the 30-day period is over.

It’s vital to act quickly after receiving the DC-27 form to avoid an extended period of suspension.

The administrative process and contesting the suspension on your driver's license.

One of the most important sections of the DC-27 form explains your right to challenge the suspension of your license. After being issued the DC-27, you have just 14 days to file a request for an administrative hearing with the Kansas Department of Revenue. This hearing is your opportunity to contest the suspension of your driver’s license and is separate from any criminal proceedings related to the DUI charge.

It’s crucial to understand that if you miss this 14-day window, your driver’s license will be automatically suspended. There are no exceptions to this rule, and failing to meet this deadline, no matter the reason, means you forfeit your chance to challenge the suspension. This makes immediate action incredibly important after receiving the DC-27 form.

How do you request an administrative hearing?

To request an administrative hearing, you or your attorney will need to file the appropriate paperwork with the Kansas Department of Revenue within the 14-day timeframe. This paperwork should specifically request:

An in-person hearing, which gives you the best chance of presenting your case effectively.
That the arresting officers be subpoenaed to attend the hearing.

Requesting an in-person hearing is a strategic move. If the hearing is conducted over the phone, the opportunity to cross-examine the officers and present your defense can be limited. Having the officers present in person allows your attorney to question them thoroughly and challenge any discrepancies or procedural errors that may have occurred during your arrest.

Many experienced DUI attorneys will represent you both in the administrative hearing and the criminal case, ensuring that your defense is coordinated and consistent across both processes. It’s advisable to work with an attorney who is familiar with DUI cases and can navigate the complexities of both administrative and legal procedures.

What happens at the administrative hearing?

The administrative hearing is a formal procedure where you have the chance to present your side of the story and challenge the evidence against you. The focus of the hearing is solely on whether or not your driver’s license should be suspended, not on whether you are guilty of the DUI charge. The hearing will evaluate:

Whether the officer had reasonable suspicion to stop your vehicle.
Whether there was probable cause to arrest you for DUI.
Whether you refused the breath test or if your BAC was above the legal limit.

At the hearing, your attorney will present evidence, cross-examine the arresting officers, and make arguments aimed at keeping your driver’s license intact. The hearing officer will review all the evidence and testimony presented before making a decision about whether or not your license should be suspended.

It’s important to note that the burden of proof in an administrative hearing is often lower than in a criminal trial. This means that while the administrative hearing is a critical part of the process, even if you lose at this stage, it doesn’t mean you’ll automatically be found guilty of the DUI charge in court.

What happens if you fail to request a hearing?

If you fail to request an administrative hearing within the 14-day window, or if you request a hearing but are unsuccessful in your appeal, your license will be suspended. The length of the suspension will depend on several factors, including whether you failed the breath test or refused to take it:

If you failed the breath test (BAC over 0.08%), your license may be suspended for 30 days, followed by a 330-day restriction to only drive with an ignition interlock device (IID) installed on your vehicle.
If you refused the breath test, the penalties are more severe, with a one-year license suspension followed by a two-year requirement to drive with an IID.

Once your license is suspended, you may apply for a restricted license after serving a portion of the suspension, depending on the circumstances of your case. However, the best outcome is to avoid suspension altogether by successfully challenging it through the administrative hearing process.

Do you need an attorney for the DC-27 Process?

Navigating the DC-27 process can be complicated, and the consequences of a misstep can be serious. Missing deadlines or not properly contesting the suspension can result in months or years without a valid driver’s license. Because the administrative hearing runs parallel to the criminal case, working with an experienced DUI attorney is crucial to ensuring that both processes are handled correctly.

A skilled DUI attorney will:

Ensure that the administrative hearing request is filed within the 14-day deadline.
Subpoena the arresting officers and request an in-person hearing.
Build a defense strategy that addresses both the administrative and criminal aspects of your case.
Help you understand the potential penalties you face and work to minimize them.

Many attorneys who specialize in DUI cases handle both the administrative license suspension hearing and the criminal defense to ensure that your rights are protected at every stage.

Final Thoughts: What should you do after receiving a DC-27 Form?

Receiving a DC-27 form is a significant moment in your DUI case, and it sets the clock ticking on your ability to retain your driving privileges. Understanding the deadlines and processes involved is crucial to mounting an effective defense. As soon as you receive the form:

Read it carefully, so you understand its purpose as a temporary driver’s license and the steps you must take.
Contact a DUI attorney as soon as possible to discuss your case and ensure that a hearing request is filed within the 14-day window.
Prepare to fight both the administrative suspension and the criminal charges by gathering evidence, reviewing the events surrounding your arrest, and challenging the officer’s conduct where applicable.

By acting quickly and working with a qualified attorney, you can improve your chances of maintaining your driving privileges and achieving a favorable outcome in your DUI case.

What Is a DC-70 and How Does It Affect Breath Tests?

The DC-70 form is an essential document in Kansas DUI (Driving Under the Influence) cases, designed to inform individuals of their rights and potential consequences before submitting to an evidentiary breath, blood, or urine test. Under Kansas law, when a person is arrested on suspicion of DUI, the arresting officer is required to read the DC-70 form aloud to the suspect before requesting any such tests. The purpose of the DC-70 is to ensure that individuals are fully aware of the legal ramifications of either submitting to or refusing the test, particularly how their decision will affect their driver’s license and the evidence in any subsequent criminal proceedings.

When and Where Is the DC-70 Form Read?

Typically, the DC-70 form is read to the suspect at the police station, after they have been arrested and transported from the scene of the initial traffic stop. Although the officer may conduct preliminary breath tests or field sobriety tests at the roadside, the advisories outlined in the DC-70 are reserved for the formal evidentiary test, which is often performed at a more controlled environment like a station or medical facility.

The officer must read the form aloud before any breath, blood, or urine test is conducted. If the officer fails to properly read the DC-70 form or skips any of the advisories, this may have significant legal implications, potentially invalidating the test results or even affecting the charges brought against the individual.

What Does the DC-70 Form Cover?

The DC-70 form includes a series of advisories that inform individuals about their legal obligations, the potential consequences of refusal, and the results of submitting to the test. These advisories are crucial because Kansas law requires drivers to submit to chemical testing if an officer suspects them of DUI. Here are the key advisories that must be read to the individual:

Testing Requirement:
Under Kansas law (K.S.A. 8-1001), you are required to submit to and complete one or more tests (breath, blood, or urine) to determine if you are under the influence of alcohol, drugs, or both. Refusing these tests is a violation of implied consent laws, which could result in significant legal penalties.
Right to an Attorney:
You do not have the constitutional right to consult with an attorney before deciding whether to submit to the test. This is a critical point because many individuals mistakenly believe they can wait to consult legal counsel before making this decision. The DC-70 clarifies that the decision to take or refuse the test must be made without legal advice at that moment.
Consequences of Refusal:
If you refuse to submit to any requested test, your driving privileges will be suspended for one year. Refusing the test can also be used as evidence against you in court, meaning that your refusal may be presented to a judge or jury as an indication of guilt.
Consequences of Test Failure – BAC of 0.15 or Greater:
If you take the test and your BAC (Blood Alcohol Concentration) is 0.15 or higher, your driving privileges will also be suspended for one year. This level of BAC represents a significant level of intoxication under Kansas law, triggering automatic suspension.
Consequences of Test Failure – BAC Between 0.08 and 0.15:
If your BAC falls between 0.08 and 0.15, the length of your license suspension will depend on whether you have any prior occurrences (which could include previous test refusals, test failures, DUI convictions, or diversions related to alcohol or drugs).
- If you have no prior occurrences, your license will be suspended for 30 days.
- If you have one or more prior occurrences, your license will be suspended for one year.
Prior Occurrences:
A prior occurrence includes a test refusal, test failure, or a DUI-related conviction or diversion. Even if the prior occurrence happened years ago, it will affect the penalties you face if you fail a breath test.
Evidence in Court:
If you refuse the test, this refusal can be used against you in any trial or hearing related to the DUI charge. On the other hand, if you submit to the test and fail, the results of the test can also be used as evidence against you.
Right to Additional Testing:
After you complete the test requested by the officer, you have the right to consult an attorney and obtain an additional test at your own expense. This additional testing can be done at a medical facility willing to conduct such testing. It is in your best interest to act quickly if you wish to seek independent verification of your BAC.

Special Provisions for Certain Drivers

There are additional advisories on the DC-70 form for specific categories of drivers:

Commercial Drivers License (CDL) holders: CDL drivers are subject to stricter rules, and the consequences for refusing or failing a test are typically more severe, including disqualification from driving commercial vehicles.
Drivers Under 21: Kansas has a zero-tolerance policy for drivers under the legal drinking age of 21. Even a BAC as low as 0.02 can result in a DUI charge and license suspension.

What Happens If the DC-70 Form Is Not Properly Read?

The correct reading of the DC-70 form is a critical procedural requirement in DUI cases. If the officer fails to read the advisories in full, or if they improperly explain the consequences of taking or refusing the test, this could provide your defense attorney with grounds to challenge the evidence against you. The penalties for test refusal or test failure are severe, so strict compliance with the law is required.

If your attorney can prove that the officer did not meet their legal obligations by failing to read the DC-70 advisories properly, you may be able to:

Suppress the results of the breath, blood, or urine test, meaning the prosecution cannot use them as evidence in court.
Argue that your license suspension is invalid, which may allow you to retain your driving privileges.

This failure to follow proper procedure could impact both your criminal case and the administrative process related to your driver's license.

Why the DC-70 Form Matters in Your DUI Case

The DC-70 form is a crucial document in any Kansas DUI case because it directly impacts both the criminal proceedings and the administrative penalties involving your driver’s license. The decision to take or refuse a breath test is a critical one, and the consequences of that decision can be severe. Without understanding the advisories on the DC-70, drivers may inadvertently make choices that have long-lasting impacts on their driving privileges and legal outcomes.

If you have been issued a DC-70 form, it’s essential to consult with a DUI attorney as soon as possible. A knowledgeable attorney can review the details of your case, ensure that the proper procedures were followed, and help you navigate both the criminal case and the administrative hearing related to your license suspension.

Will Drug and Alcohol Counseling Be Required After a DUI?

In Kansas, a drug and alcohol evaluation is a standard requirement for anyone who pleads guilty, is found guilty, or accepts a diversion for a DUI charge. This evaluation, known as an ADSAP (Alcohol and Drug Safety Action Program) evaluation, plays a critical role in determining the level of treatment or education a defendant may need as part of their sentencing. Whether it’s a first-time offense or a repeat DUI charge, an ADSAP evaluation is a mandatory step in the legal process.

What Is an ADSAP Evaluation?

An ADSAP evaluation is a structured assessment designed to evaluate a defendant’s use of drugs and alcohol, and to identify any potential patterns of abuse or dependence. The evaluation is conducted by a court-approved provider or through court services, depending on the jurisdiction. These evaluations are integral to helping the court understand the defendant’s relationship with substances and determining the appropriate level of counseling or treatment.

What the evaluation involves:

The ADSAP evaluation usually lasts between 30 to 90 minutes, during which the defendant undergoes a thorough interview and a battery of psychological and substance-use assessments.
The evaluator uses various diagnostic tools to gauge the defendant's level of alcohol or drug dependence.
Based on the findings, the evaluator provides a recommendation to the court regarding the type and intensity of treatment or education the defendant should undergo.

The purpose of the evaluation is to identify whether the defendant has underlying substance use issues that contributed to the DUI and to propose a treatment plan that will help prevent future offenses. This treatment plan is not punitive; instead, it is designed to aid rehabilitation and reduce the risk of recidivism.

Is an ADSAP Evaluation Required by Law?

Yes, an ADSAP evaluation is required under Kansas law. Specifically, K.S.A. 8-1567 mandates that any person convicted of a DUI, whether by plea, guilty verdict, or diversion, must submit to a pre-sentence drug and alcohol evaluation. The statute clearly states:

“Upon every conviction of this section, the court shall order such person to submit to a pre-sentence alcohol and drug abuse evaluation pursuant to K.S.A. 8-1008, and amendments thereto. Such pre-sentence evaluation shall be made available, and shall be considered by the sentencing court.”

This means that the results of the ADSAP evaluation are not merely formalities. The sentencing judge will review the evaluation and consider its recommendations when determining the conditions of your probation or diversion agreement. In most cases, the court will incorporate these recommendations into the defendant’s probation contract, making the completion of counseling or educational programs a condition of probation.

View the Law: K.S.A. 8-1567 (link to the relevant law section).

What Are the Possible Levels of Treatment?

While the ADSAP evaluator does not have the authority to mandate treatment—only the judge can do that—it is common for judges to closely follow the evaluator’s recommendations. Depending on the outcome of the evaluation, the judge will assign one of several levels of treatment, which are generally classified into three tiers based on the defendant’s level of substance use or dependency.

Here are the most common levels of treatment:

Level One – 8-Hour Drug and Alcohol Education Class:
This is the most basic form of treatment and is often assigned to individuals who show no significant signs of substance abuse or dependence. The class focuses on educating participants about the dangers of driving under the influence and the effects of alcohol and drugs on the body and mind. This level is typically for first-time offenders with no prior history of substance use problems.
Level Two – 12-Hour Drug and Alcohol Education Class:
This class is slightly more intensive than Level One and is often assigned to individuals who may have displayed minor indicators of substance use problems. In addition to education about the risks of drug and alcohol use, participants may also receive some basic counseling aimed at helping them recognize the signs of early substance abuse and avoid risky behaviors in the future.
Level Three – Outpatient Counseling for Drug and Alcohol Abusers:
This level is reserved for individuals who exhibit signs of substance dependency or who have a history of alcohol or drug abuse. Outpatient counseling varies in length and intensity, depending on the individual’s needs, but typically involves regular sessions with a licensed counselor or treatment program. The number of hours required can vary significantly, but the goal is to help the participant manage their substance use, develop healthier coping mechanisms, and reduce the likelihood of reoffending.

How Does the Court Use ADSAP Results in Sentencing?

While the ADSAP evaluator cannot order a defendant into treatment directly, the sentencing judge typically incorporates the evaluator's recommendations into the probation contract. In about 95% of cases, the judge will require the defendant to complete the level of treatment or education suggested by the evaluator as part of their probation conditions. This means that, although the evaluation is just one part of the sentencing process, it plays a pivotal role in determining what treatment or educational programs the defendant must complete.

If the defendant fails to complete the recommended treatment, they could be found in violation of their probation, which may result in further penalties, including jail time.

Where Do I Go to Get an ADSAP Evaluation?

Each court in Kansas maintains a list of approved providers who are authorized to conduct ADSAP evaluations. It’s essential to choose a provider from this approved list, as evaluations from non-approved providers will not be accepted by the court. However, not all providers offer the same quality of service, and some may be more difficult to work with than others.

Because the evaluation plays such a critical role in your case, it’s advisable to work with your attorney to select a reputable provider. In some courts, the provider will essentially act as your “probation officer” throughout the treatment process, making it even more important to choose the right one.

How to Select the Right ADSAP Provider

The right ADSAP provider can make a significant difference in your experience and the success of your treatment. Some providers may be more strict or offer less flexibility in scheduling, while others may be more supportive and easier to work with. Your attorney can recommend a provider based on their experience with similar cases and their understanding of your personality and needs.

It’s important to understand that the wrong provider could make the process unnecessarily difficult, and in some cases, lead to complications in completing the necessary treatment. Therefore, taking the time to discuss your options with your attorney is key to ensuring a smoother process.

Final Thoughts: ADSAP Evaluations and DUI Cases in Kansas

An ADSAP evaluation is an inevitable and essential part of the legal process for anyone facing DUI charges in Kansas. It serves as the foundation for the court's decisions regarding treatment or education as part of your probation. By understanding the evaluation process and working with your attorney to select the right provider, you can ensure that you meet the court's requirements and complete the necessary steps toward rehabilitation.

Although the process may seem daunting, the ADSAP evaluation and any required treatment programs are designed to support rehabilitation and reduce the likelihood of repeat offenses. Completing the recommended treatment not only fulfills your legal obligations but can also help you move forward in a positive direction.

WILL A DUI GO ON MY CRIMINAL RECORD?

One of the most common questions individuals face after a DUI arrest in Kansas is whether the DUI will appear on their criminal record. This question often arises during job applications or background checks, as individuals worry about how a DUI might impact their future employment opportunities or professional licensing. Understanding what "criminal records" exist, who can access them, and the type of information available is essential in answering this question accurately.

When it comes to DUI records, there are several types of records that may indicate a past DUI offense, even if the individual was not convicted. These records are maintained by different agencies and can be accessed under various circumstances, especially by potential employers. Here's a breakdown of the four types of records that could alert someone to a DUI on your record:

1. Driver’s License Records

Driver’s license records are maintained by the Kansas Department of Revenue and are entirely separate from your criminal record. These records reflect your driving history, including any:

Moving violation convictions
Records of accidents
Records of chemical test refusals or failures
DUI convictions
Other administrative actions, such as license suspensions or revocations

If you were convicted of a DUI or lost your license due to a chemical test refusal or failure, this information will be noted in your driving record. While these records are not considered part of your criminal record, they are commonly requested by employers, particularly if the position involves driving. A thorough review of your driving record can easily tip off an employer that you have a DUI in your past.

2. Public Criminal Records

Public criminal records are available online through various local jurisdiction court databases. These records are open to the public and often include:

Charging information
Mugshots
Case disposition details
Additional case-related information

Some examples of local databases where these records can be accessed include:

Johnson County District Court’s Database
Overland Park Municipal Court’s Database
Lenexa Municipal Court’s Database
Shawnee Municipal Court’s Database
Johnson County Sheriff’s Office

These public records are easily accessible, and many employers run background checks through these local databases to verify potential employees' criminal histories. Therefore, even if your DUI case was resolved in a lower court, the information could still be available online for public viewing.

3. Law Enforcement Criminal Records

In Kansas, law enforcement criminal records are maintained by the Kansas Bureau of Investigation (KBI). The KBI serves as the central repository for all criminal records in the state, and all law enforcement agencies are required to report to the KBI. These records contain information about:

DUI convictions
Diversions
Other criminal offenses within the state

The KBI provides background checks for a fee, often requested by employers or licensing boards. They make most records publicly available and include any formal convictions or diversions related to DUI charges. While not all arrest records may be included, all convictions and diversions should be reported to the KBI.

4. Arrest Records

Arrest records are maintained by local law enforcement and, in some cases, by the KBI. These records reflect any arrests made by police, even if no formal charges were ever filed or if the person was not ultimately convicted. These records are not typically made available to the public in most cases, but they may still exist in law enforcement databases.

Understanding DUI Case Dispositions and Their Impact on Your Record

Now that you know what types of records exist, it’s important to understand how the outcome of your DUI case affects what appears in these records. There are four primary outcomes for a DUI case, and each has different implications for what an employer might find during a background check or review of your records.

1. Case Dismissed/Client Found Not Guilty

If your case was dismissed or you were found not guilty, there may still be records that show you were arrested and charged, even though you were not convicted. Here are the types of records that may exist:

Arrest record: Shows the interaction with law enforcement but not a conviction.
Driver’s license record: Could reflect an administrative suspension if you failed or refused a chemical test.
Public criminal record: May indicate that charges were brought but later dismissed.

In this scenario, the records should not reflect a conviction, but the fact that you were arrested and charged may still be visible to employers.

2. Case Never Charged

If your case was never formally charged, it is still possible for some records to exist, including:

Arrest record: Reflects the fact that you were taken into custody, even though no charges were filed.
Driver’s license record: Could indicate that your license was suspended or revoked administratively, even without criminal charges.

Again, while there would be no conviction on your record, an employer could potentially discover information about the arrest or license suspension.

3. Diversion Agreement

A diversion agreement allows individuals to avoid a formal conviction if they complete certain conditions set by the court. However, even with a diversion, several records could exist, including:

Law enforcement criminal record: The KBI will show the final disposition as "Diversion."
Arrest record: Local law enforcement will maintain the record of your arrest.
Public criminal record: Court records will reflect the diversion agreement.
Driver’s license record: May include any license suspension that occurred due to the DUI.

While a diversion allows you to avoid a conviction, it is still publicly available and will be noted in your official records.

4. Found Guilty

If you are found guilty of a DUI, four records will likely exist:

Law enforcement criminal record: The KBI will reflect a final disposition of "Guilty."
Arrest record: The original arrest will remain in local law enforcement databases.
Public criminal record: Court records will show the case’s outcome as "Guilty."
Driver’s license record: Your license suspension or revocation will be noted in the Department of Revenue’s records.

In this situation, your DUI conviction will be available for employers to find during background checks, and it will appear in all the relevant databases.

How to Answer Job Application Questions About DUI

Based on the outcome of your DUI case, here’s how to approach common job application questions:

Have you ever been convicted of a crime?

You must answer Yes if you were found guilty of a DUI or any other crime. However, if your case was dismissed or you successfully completed a diversion, you can answer No to this question.

Have you ever been convicted of a felony?

You only need to answer Yes if your DUI was classified as a felony, which generally occurs on a third DUI offense or higher. First and second DUIs are typically misdemeanors unless special circumstances apply.

Have you ever been arrested for any crime?

You should answer Yes if you were arrested for a DUI, regardless of the case's final outcome. Even if the case was dismissed or you were not charged, the arrest itself is likely still on record.

Have you ever been convicted of a crime or been party to a deferred adjudication, suspended adjudication, or diversion of a criminal offense?

You must answer Yes if you entered into a diversion agreement or if you were convicted of a DUI. However, if your case was dismissed or you were found not guilty, you can answer No.

Have you ever had a criminal record expunged or sealed from public view?

You can answer No unless you have specifically gone through the process of expunging or sealing your record. A diversion is not the same as expungement, and you must take additional steps to clear your record.

Conclusion: The Impact of a DUI on Your Criminal Record

A DUI arrest and conviction can have long-lasting consequences for your criminal record, driver’s license, and employment opportunities. Understanding the different types of records that may exist and how to answer questions about your criminal history is crucial when applying for jobs. If you have questions about your DUI case or need help navigating the legal process, contact the DUI defense lawyers at Roth Davies for a consultation.

Will My License Be Suspended After a DUI?

Facing a DUI charge in Kansas carries serious consequences, including the potential suspension of your driver’s license. There are four main ways in which you can lose your driver’s license due to a DUI charge:

1. Failure to Request Your Administrative Hearing

When you're arrested for a DUI, the officer issues you a DC-27 Notice of Suspension of License, which informs you of your rights and the timeline to act. This document is crucial because if you don’t request an administrative hearing with the Kansas Department of Revenue within 14 days of receiving the DC-27 form, your driver’s license will be automatically suspended.

Key Point: It’s essential to read the DC-27 carefully and act quickly. Failing to request a hearing means you’ll lose your license by default, regardless of the circumstances of your case.

2. Losing Your Administrative Hearing

If you do request your administrative hearing within the 14-day window, your next challenge is to prevail at the hearing. At the hearing, the Kansas Department of Revenue will review whether the officer had reasonable grounds to believe you were driving under the influence. If you lose the hearing, your license will be suspended.

Key Point: Even with legal representation, there's a chance you may lose at the hearing, resulting in the suspension of your driving privileges.

3. Being Found Guilty or Pleading Guilty to a DUI in Criminal Court

Even if you win your administrative hearing and avoid an immediate suspension, being found guilty or pleading guilty to the DUI charge in criminal court will still result in an automatic license suspension. Kansas law requires this penalty as part of the DUI conviction.

Key Point: Avoiding suspension through the administrative process doesn't guarantee that your license won't be suspended if you are convicted or plead guilty in a criminal case.

4. Failing to Appear in Court

If you fail to appear in court for your DUI charge, this can lead to an administrative suspension of your license, as well as a warrant for your arrest. Missing a court date is considered failure to comply, which triggers these consequences even before a verdict is reached.

Key Point: Failing to appear in court for your DUI hearing can have severe consequences, including an automatic license suspension and a warrant for your arrest.

Rare Exception: Dismissal Due to Officer Error

In rare cases, the Kansas Department of Revenue may find a fatal error on the DC-27 form submitted by the arresting officer. If such a mistake is identified, the administrative case against you could be dismissed, and your license returned. However, this is an uncommon outcome, and you should not rely on this possibility.

Key Point: While a technical mistake could lead to the dismissal of the administrative suspension, this is rare and should not be considered a common defense strategy.

How Long Will My License Be Suspended After a DUI?

If your license is suspended due to a DUI, the length of the suspension will depend on three key factors:

The number of prior DUI offenses
Your Blood Alcohol Content (BAC) at the time of the offense
Whether you refused the evidentiary breath test

Here’s a breakdown of license suspensions and ignition interlock device (IID) requirements based on these factors:

For First-Time DUI Offenders

BAC between 0.08 and 0.15: License suspended for 30 days and IID required for 6 months.
BAC of 0.15 or higher: License suspended for 1 year and IID required for 1 year.
Refusal of Breath Test: License suspended for 1 year and IID required for 2 years.

For Second-Time DUI Offenders

BAC between 0.08 and 0.15: License suspended for 1 year and IID required for 1 year.
BAC of 0.15 or higher: License suspended for 1 year and IID required for 2 years.
Refusal of Breath Test: License suspended for 1 year and IID required for 3 years.

For Third-Time DUI Offenders

BAC between 0.08 and 0.15: License suspended for 1 year and IID required for 2 years.
BAC of 0.15 or higher: License suspended for 1 year and IID required for 3 years.
Refusal of Breath Test: License suspended for 1 year and IID required for 4 years.

For Fourth-Time DUI Offenders

BAC between 0.08 and 0.15: License suspended for 1 year and IID required for 3 years.
BAC of 0.15 or higher: License suspended for 1 year and IID required for 4 years.
Refusal of Breath Test: License suspended for 1 year and IID required for 5 years.

For Fifth-Time or Higher DUI Offenders

Regardless of BAC or whether you submitted to the test, if you are convicted of a fifth DUI or higher, your license will be suspended for 1 year, and you will be required to install an IID for 10 years.

Conclusion: Steps to Protect Your License After a DUI

A DUI conviction in Kansas can result in a suspended license and significant penalties. It's important to act quickly and understand your rights to potentially avoid or minimize the length of the suspension. Here’s what you should do:

Read the DC-27 form carefully after your arrest.
Request an administrative hearing within 14 days.
Attend all court dates to avoid a default suspension and arrest warrant.
Work with an experienced DUI attorney to increase your chances of a favorable outcome in both the administrative and criminal proceedings.

Remember, even if you avoid suspension in the administrative hearing, a criminal conviction will still result in penalties, including license suspension and IID requirements. Navigating these complex processes with the help of a skilled attorney can make a significant difference in the outcome of your case.

Get In Touch With Us!

DUI Defense Lawyer in Overland Park

A QUICK AND SIMPLE LOOK AT A DUI CASE IN KANSAS

The Administrative Case:

Will your license be suspended if you lose your administrative hearing?

How do you get your license back if it is suspended based on a DUI?

The Criminal Case:

Here is a very simple version of how a DUI case can take place and your lawyer’s role in defending you.

What are the Possible Penalties for a DUI case?

Hire an Experienced Criminal Defense Lawyer

What Proof Is Needed at a Driver's License Hearing After a DUI?

Scope of the Administrative Hearing: Key Issues Considered

Common Issue Across All Situations: Operation or Attempt to Operate a Vehicle

Proof Required for Test Refusal (h)(1): Reasonable Grounds

Proof Required for Failed Breath Test (h)(2) and Failed Blood Test (h)(3): Unclear Standard

How Kansas Courts Define "Reasonable Grounds"

Key Court Cases Defining Reasonable Grounds

How Does Reasonable Grounds Affect the Administrative Hearing?

Challenging Reasonable Grounds in a Hearing

Conclusion: The Importance of Reasonable Grounds in DUI License Hearings

HOW DO YOU CHOOSE THE RIGHT DUI LAWYER FOR YOUR CASE?

HOW DOES AN ATTORNEY FIGHT A DUI WITH CASE LAW?

CASE LAW FOR DUI IN KANSAS

SCHMERBER VS. CALIFORNIA

STATE VS. FISH

STATE VS. COMPTON, ET. AL

SKINNER VS. RAILWAY LABOR EXECUTIVES’ ASSOCIATION

MICHIGAN DEPARTMENT OF STATE POLICE VS. SITZ

STATE VS. BRANSCUM

STATE VS. TAPEDO

STATE VS. JONES

STATE VS. WAHWEOTTEN

STATE VS. RICKERSON

STATE VS. EDGAR

MISSOURI VS. MCNEELEY

STATE VS. DECLERCK

CITY OF WICHITA VS. MOLITOR

STATE VS. MEITLER

STATE VS. RYCE

STATE VS. NECE

STATE VS. STANLEY

CAN THE INTOXILYZER BE BEAT?

How Does The Breath Test Work?

A FEW THINGS TO LOOK FOR WHEN ANALYIZING A BREATH TEST

Did the officer observe the proper deprivation period before he administered the test?

Was the gas used to calibrate the machine before the test from an approved gas provider?

Was the Intoxilyzer operating correctly?

Was the officer that administered the breath test certified on the Intoxilyzer?

When was the officer last certified on the breath test equipment?

Is the agency that administered your breath test certified by the State?

Was the Intoxilyzer approved by the State and are its maintenance records up to date?

Did the External Standard Check results fall within the acceptable range?

Did the Law Enforcement Agency maintain the proper records?

Was the Intoxilyzer affected by Radio Frequency Interference?

Did the officer use an unused mouth piece on the Intoxilyzer before you took the test?

Did the officer read the Advisory before administering the Breath test?

Can the HGN (Eye Test) Be Beaten in a DUI Case?

Can the One Leg Stand Test Be Beaten in a DUI Case?

Can the Walk and Turn Test Be Beaten in a DUI Case?

How the Walk-and-Turn Test Works

1. Instructional Phase

What the Officer Is Supposed to Do:

What the Officer Looks For:

Challenges During the Instructional Phase:

2. Performance Phase

What the Officer Is Supposed to Do:

What the Officer Looks For:

Common Mistakes Officers Make in Administering the Test

1. Poor Testing Conditions

2. Failing to Account for Physical Conditions

3. Improper Scoring of Clues

4. Giving Instructions During the Test

Reliability of the Walk-and-Turn Test

Challenging the Walk-and-Turn Test in Court

1. Highlight Officer Errors

2. Address Suspect’s Physical Condition

3. Question Test Reliability

4. Introduce Alternative Explanations for Clues

Can the Walk-and-Turn Test Be Beaten?

Can You Beat the PBT in a Kansas DUI Case?

Can You Beat the PBT in a Kansas DUI Case?