DUI Lawyer in Overland Park, Kansas
A DUI arrest in Overland Park or anywhere in Johnson County starts two cases at once: a criminal case in court, and a separate case over your driver's license. The license case moves fast. In most cases you have just 14 days to request a hearing, or your suspension can take effect automatically. Roth Davies defends DUI charges across Johnson County from our office at 6240 W. 135th Street in Overland Park. Call (913) 451-9500 for a free consultation.
How a DUI Lawyer Helps
Protects your license. We request your administrative hearing on time and challenge the suspension.
Tests the evidence. We review the stop, the field sobriety tests, and the breath or blood test for problems with procedure, equipment and certification.
Gets the discovery. We get the police reports, video and testing records the prosecution has to turn over.
Looks for alternatives. If you qualify, we can pursue diversion or a reduced outcome.
Takes it to trial if needed.
4.9 stars from 225 Google reviews · Free consultation · Overland Park office · Call (913) 451-9500
DUI cases are led by Brandan J. Davies, whose DUI training includes NHTSA standardized field sobriety test certification and a Science of Breath Testing certificate.
Kansas DUI Laws and Penalties
What counts as a DUI in Kansas?
Under K.S.A. 8-1567, you can be charged with DUI if:
Your blood or breath alcohol concentration is 0.08 or more, or is 0.08 or more on a test taken within 3 hours of driving, or
You are under the influence of alcohol, drugs or both to a degree that makes you incapable of safely driving.
Drivers under 21 face license penalties at 0.02 or more (K.S.A. 8-1567a).
What are the penalties for a DUI in Kansas?
First DUI: class B misdemeanor. 48 hours to 6 months in jail, or 100 hours of public service at the judge's discretion. Fine of $750 to $1,000. An alcohol and drug evaluation is required before sentencing.
Second DUI: class A misdemeanor. 90 days to 1 year in jail, and fine of $1,250 to $1,750. If you get probation, you still serve at least 120 hours, with at least 48 of those in jail.
Third DUI: class A misdemeanor, or a felony if you had a prior conviction in the last 10 years. 90 days to 1 year in jail, and fine of $1,750 to $2,500. If you get probation, you still serve at least 30 days, and 1 year of supervision follows release.
Fourth DUI or more: felony, with at least 30 days served.
Child in the car: if a child under 18 was in the vehicle, 1 month is added to the sentence.
Prior DUI convictions and diversions count if they happened on or after July 1, 2001.
How long will my license be suspended?
Your license case is separate from your criminal case, and the length depends on your test result and history (K.S.A. 8-1014):
Failed test, first time: 30-day suspension, then restricted driving.
Failed test, second time: 1-year suspension, then 1 year with an ignition interlock.
Failed test, third time: 1-year suspension, then 2 years with an ignition interlock.
Failed test, fourth time: 1-year suspension, then 3 years with an ignition interlock.
Test result 0.15 or higher: 1-year suspension, then at least 1 year with an ignition interlock on a first occurrence.
Refusing the test: 1-year suspension, then at least 2 years with an ignition interlock on a first refusal. Refusing usually means a longer suspension, not a shorter one.
If more than one suspension applies from the same arrest, they don't stack. The longest one applies.
You have 14 days to request a license hearing
After a DUI arrest, the officer serves you with a notice of suspension. Under K.S.A. 8-1020, you have 14 days to request an administrative hearing and pay the $50 fee. If you do, your temporary license stays valid until 30 days after the hearing decision. If you miss the deadline, the suspension goes into effect without a hearing. This is the first thing we handle when you call.
Can I get a DUI diversion in Johnson County?
Possibly. Diversion lets you complete conditions instead of going through with the case. Under K.S.A. 22-2908, you are not eligible if you:
Have had a DUI diversion before
Have a prior DUI conviction, in Kansas or anywhere else
Were in an accident during the arrest that injured or killed someone else
Hold a commercial driver's license
Keep in mind that a DUI diversion still counts as a prior if you are ever charged again.
What Happens After a DUI Arrest in Johnson County
Request your license hearing within 14 days. This is the deadline people miss most.
Write down what you remember. Note where you were stopped, what the officer said, which tests you took and when.
Don't talk about the case with anyone except your lawyer.
Find out which court your case is in. Depending on where you were arrested and your history, it may be a city municipal court, like Overland Park or Olathe, or Johnson County District Court.
Get the alcohol and drug evaluation scheduled if your lawyer advises it. It's required before sentencing on a first or second DUI.
Call a DUI lawyer. The earlier we start, the more evidence like video can be preserved.
How We Challenge DUI Evidence
Every DUI case depends on the evidence: why you were stopped, how the field sobriety tests were given, and whether the breath or blood test followed state procedures. Our DUI defense guide below covers each one:
The license hearing and "reasonable grounds"
The Intoxilyzer breath test
The HGN eye test
The One-Leg Stand test
The Walk-and-Turn test
The preliminary breath test (PBT)
Discovery in a DUI case
Ignition interlocks
DUI FAQs
Will I go to jail for a first DUI in Kansas?
Not necessarily. The law sets 48 hours to 6 months in jail, but the judge can order 100 hours of public service instead.
Should I refuse the breath test at the station?
This is the evidentiary breath or blood test after arrest, not the roadside preliminary breath test (PBT). Refusing it usually makes the license penalty worse. A first refusal means a 1-year suspension followed by at least 2 years with an ignition interlock, compared with a 30-day suspension for a first failed test. Talk to a lawyer about your specific situation.
Can I still drive after a DUI arrest?
Usually, for now. If you request your hearing and pay the $50 fee within 14 days, your temporary license stays valid until 30 days after the hearing decision.
Will a DUI go on my record?
A conviction does, and it counts as a prior DUI if you're charged again. A diversion also counts as a prior for future DUI cases.
Do I need an ignition interlock?
It depends on your test result and history. Refusals, tests of 0.15 or higher, and second or later DUIs all carry an ignition interlock period after the suspension.
How much does a DUI lawyer cost?
It depends on the case. The consultation is free, so call (913) 451-9500 to talk through yours.
DUI Defense Guide
The sections below go deeper into how each part of a Kansas DUI case works and where the evidence can be challenged.
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.
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.
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 simple 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 consists 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 decreases. 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. These 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."
Simple: 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 cannot 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 Analyzing 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 or she must submit an application for "operator certification" through his or 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 to 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 are not up to date, then this may be grounds to suppress your breath test results. (See page 59 of the 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 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 of radio frequency interference, it is not foolproof. 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 mouthpiece 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 mouthpiece 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 suspects' 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.
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.
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.
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 crosses them in front), 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, 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 Test
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 City of Wichita v. Molitor in our Kansas DUI case law post.)
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 suspect's field of view. Because most police cars have flashing lights on during a traffic stop, and fast-moving cars usually pass in the suspect's field of vision during 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 arrest decisions based on the HGN test. (Read the Standardized Field Sobriety Test (SFST) Validated at BACs Below 0.10 Percent 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 86% accuracy when administering all three tests. (Read the Colorado Validation Study of the Standardized Field Sobriety Battery.)
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. (Read the Florida Validation Study of the Standardized Field Sobriety Test Battery.)
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 conclusion from the study is that "HGN is a robust phenomenon." (Read the Robustness of the HGN article.)
For more information on the 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 has confirmed that they understand the instructions, the officer will tell the suspect that when the officer says to begin, the suspect should raise either leg 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, etc.
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 is not a clue at all in the context of the One-Leg Stand test. It 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 too 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 a clue when administering the Walk-and-Turn test.
Giving incorrect instructions: Officers will give confusing or altogether incorrect instructions 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 also supposed to 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 the added stress of being in an adversarial situation and an 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 suitable testing site, 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, 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 who 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 interpreting the results of the test. In all aspects of field sobriety testing, these two problems are by far 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 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 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 arrest decisions based on the One-Leg Stand test. (Read 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 86% accuracy when administering all three tests. (Read 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 95% accuracy when administering all three tests. (Read 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 section 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 made worse 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 the 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:
Its low accuracy rate.
The lack of peer-reviewed research supporting 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, and 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 can only be used by an officer to establish probable cause to arrest. 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 gives the Kansas Department of Health and Environment the authority to approve the preliminary breath test devices that can be used by law enforcement. The list of approved devices is outlined in the Breath Alcohol Program Training Manual compiled and approved by the Kansas Department of Health and Environment.
Kansas Breath Alcohol Program Training Manuals:
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 plays 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.
Do I Need a 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 required 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.
Ending a 10-Year Ignition Interlock Requirement Early
If you are under a 10-year ignition interlock restriction, Kansas law lets you petition a district court to end it once you have served five years of it (K.S.A. 8-1014(b)(3)).
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 follow:
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: Make timely payments for maintenance fees and attend all required calibration appointments to keep the IID functioning correctly.
Talk to a DUI Lawyer About Your Ignition Interlock Requirement
If you've been charged with or convicted of a DUI in Kansas, installing an ignition interlock device is likely a required step to regain your driving privileges. The duration depends on factors such as the number of DUI offenses, BAC levels, and whether you refused a breath test. If you are unsure what applies to you, call (913) 451-9500 for a free consultation.