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:

  1. Show the prosecutor what problems their case. They have to be careful here to not show problems that could be fixed before trial.
  2. 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.
  3. 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.