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 CaseThe 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.1. The first letter is an acknowledgement or receipt of your administrative request.2. The second letter is a “Production of Documents” that must be provided before the hearing.3. 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 he 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.
How long 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 CaseThe 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.
ArrestIn 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:1.Horizontal Gaze NystagmusThe 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.
2.Walk and Turn TestThe 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.
3.The One Leg Stand TestThe 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). The officer must read the following statements to a suspect before they ask the suspect to submit to the test.
You do not have the right to consult with an attorney before taking the preliminary breath test.
Failure to give a sample or refusal of a Preliminary Breath Test is an infraction.
You may be subject to further testing.
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 ArrestAfter 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 Implied Consent Advisory. This document provides information to you before you submit to or refuse an evidentiary breath test. To Learn more about the DC-70 implied consent advisory click here.
Once the officer has read you the DC-70 Implied Consent 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 CustodyAfter 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.
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 LawyerAfter 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.
1. 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.
2. 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.
3. Request DiscoveryThis 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.
4. File a Motion for DiscoveryMany 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.
5. 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.
6. Talk with the ProsecutorAfter 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.
7. Present options to clientYou 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.
8. Pretrial MotionsIf 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.
9. Put on a TrialThis 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.
10. 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.
11. 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.