WHAT IS THE CURRENT DUI LAW IN OVERLAND PARK MUNICIPAL COURT?
This is the actual text of the Overland Park Ordinance prohibiting Driving under the influence. This page is the current law as of 6/11/2021.
12.04 OVERLAND PARK TRAFFIC ORDINANCE
Article VI. Serious Traffic Offenses
12.04.030 Driving Under the Influence of Alcohol or Drugs; Penalties
Driving under the influence is operating or attempting to operate any vehicle within this City while:
The alcohol concentration in the person’s blood or breath as shown by any competent evidence, including other competent evidence as defined in paragraph (1) of subsection (f) of K.S.A. 8-1013, and amendments thereto, is .08 or more;
the alcohol concentration in the person’s blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is .08 or more;
under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle;
under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.
On a first conviction of a violation of this Section, a person shall be sentenced to not less than 48 consecutive hours nor more than six months’ imprisonment, or in the court’s discretion 100 hours of public service, and fined not less than $750.00 nor more than $1,000.00. The person convicted shall serve at least 48 consecutive hours’ imprisonment or 100 hours of public service either before or as a condition of any grant of probation or suspension, reduction of sentence or parole. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto, to serve the remainder of the sentence only after such person has served 48 consecutive hours’ imprisonment.
On a second conviction of a violation of this Section, a person shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,250.00 nor more than $1,750.00. The person convicted shall serve at least five consecutive days’ imprisonment before the person is granted probation, suspension or reduction of sentence or parole or is otherwise released. The five days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 120 hours of confinement. Such 120 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto, to serve the five days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 120 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 120 hours.
On a third conviction of a violation of this Section, a person shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750.00 nor more than $2,500.00. The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served at least 90 days’ imprisonment. The 90 days’ imprisonment mandated by this subsection may be served in a work release program only after such person has served 48 consecutive hours’ imprisonment, provided such work release program requires such person to return to confinement at the end of each day in the work release program. The person convicted, if placed into a work release program, shall serve a minimum of 2,160 hours of confinement. Such 2,160 hours of confinement shall be a period of at least 48 consecutive hours of imprisonment followed by confinement hours at the end of and continuing to the beginning of the offender’s work day. The court may place the person convicted under a house arrest program pursuant to K.S.A. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 48 consecutive hours’ imprisonment. The person convicted, if placed under house arrest, shall be monitored by an electronic monitoring device, which verifies the offender’s location. The offender shall serve a minimum of 2,160 hours of confinement within the boundaries of the offender’s residence. Any exceptions to remaining within the boundaries of the offender’s residence provided for in the house arrest agreement shall not be counted as part of the 2,160 hours.
In addition, for any conviction hereunder, the person shall be placed on supervision for a mandatory one-year period of supervision, which such period of supervision shall not be reduced. An offender for whom a warrant has been issued by the court alleging a violation of such supervision shall be considered a fugitive from justice if it is found that the warrant cannot be served. If it is found the offender has violated provisions of this supervision, the court shall determine whether the time from the issuing of the warrant to the date of the court's determination of an alleged violation, or any part of it, shall be counted as time served on supervision. Any violation of the conditions of such supervision may subject such person to revocation of supervision and imprisonment in jail for the remainder of the period of imprisonment, the remainder of the supervision period, or any combination or portion thereof. The term of supervision may be extended at the court's discretion beyond one year, and any violation of the conditions of such extended term of supervision may subject such person to the revocation of supervision and imprisonment in jail of up to the remainder of the original sentence, not the term of the extended supervision.
In addition, prior to sentencing for any conviction, the court shall order the person to participate in an alcohol and drug evaluation conducted by a provider in accordance with K.S.A. 8-1008, and amendments thereto. The person shall be required to follow any recommendation made by the provider after such evaluation, unless otherwise ordered by the court.
Prior to sentencing a person convicted of this Section which offense resulted in serious bodily injury or the death of a person, the court shall cause reasonable attempts to be made to notify the victim or the victim’s family, who shall be given an opportunity to make a victim’s impact statement as to the impact of the offense on the victim’s life or the lives of the victim’s family members. In addition, the court may require that a person convicted of a violation of this Section which offense resulted in personal injury to a person, the death of a person or injury to a person’s property in addition to any other penalty provided by law, that the convicted person pay restitution as a condition of probation or parole; provided such restitution shall be in addition to any other penalties provided by law.
Any person convicted of violating this Section who had one or more children under the age of 18 years in the vehicle at the time of the offense shall have such person’s punishment enhanced by one month of imprisonment. This imprisonment must be served consecutively to any other minimum mandatory penalty imposed for a violation of this Section. Any enhanced penalty imposed shall not exceed the maximum sentence allowable by law. During the service of the enhanced penalty, the judge may order the person on house arrest, work release or other conditional release.
If a person is charged with a violation of this Section involving drugs, the fact that the person is or has been entitled to use the drug under the laws of this state shall not constitute a defense against the charge.
The court may establish the terms and time for payment of any fines, fees, assessments and costs imposed pursuant to this Section. Any assessment and costs shall be required to be paid not later than 90 days after imposed, and any remainder of the fine shall be paid prior to the final release of the defendant by the court.
In lieu of payment of a fine imposed pursuant to this Section, the court may order that the person perform community service specified by the court. The person shall receive a credit on the fine imposed in an amount equal to $5.00 for each full hour spent by the person in the specified community service. The community service ordered by the court shall be required to be performed not later than one year after the fine is imposed or by an earlier date specified by the court. If by the required date the person performs an insufficient amount of community service to reduce to zero the portion of the fine required to be paid by the person, the remaining balance of the fine shall become due on that date.
Upon the filing of a complaint, citation or notice to appear, and prior to conviction thereof, the City Attorney shall request and shall receive from the (1) Division of Vehicles a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state, and (2) Kansas Bureau of Investigation Central Repository all criminal history record information concerning such person.
If the elements of the violation are the same as a felony violation of K.S.A. 8-1567 (Driving Under the Influence), and amendments thereto, the City Attorney shall refer the violation to the Johnson County District Attorney for prosecution.
The court shall electronically report every conviction of a violation of this Section and every diversion agreement entered into in lieu of further criminal proceedings on a complaint alleging a violation of this Section to the Division including any finding regarding the alcohol concentration in the offender's blood. Prior to sentencing under the provisions of this Section, the court shall request and shall receive from the Division a record of all prior convictions obtained against such person for any violation of any of the motor vehicle laws of this state.
For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this Section:
Convictions for a violation of this Section, or a violation of an ordinance of any city or resolution of any county that prohibits the acts that this Section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001. Nothing in this provision shall be construed as preventing any court from considering any convictions or diversions occurring during the person’s lifetime in determining the sentence to be imposed within the limits provided for a first, second, third, fourth or subsequent offense;
any convictions for a violation of the following Sections occurring during a person’s lifetime shall be taken into account:
driving a commercial motor vehicle under the influence, K.S.A. 8-2,144, and amendments thereto;
operating a vessel under the influence of alcohol or drugs, K.S.A. 32-1131, and amendments thereto;
involuntary manslaughter while driving under the influence of alcohol or drugs, K.S.A. 21-3442, prior to its repeal, or subsection (a)(3) of K.S.A. 2011 Supp. 21-5405, and amendments thereto;
aggravated battery as described in subsection (b)(3) of K.S.A. 2012 Supp. 21-5413, and amendments thereto;
aggravated vehicular homicide, K.S.A. 21-3405a, prior to its repeal, or vehicular battery, K.S.A. 21-3405b, prior to its repeal, if the crime was committed while committing a violation of K.S.A. 8-1567 (Driving Under the Influence), and amendments thereto;
“conviction” includes:
entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of an offense described in subsection (m) (2); and
conviction of a violation of anordinance of a city in this state, a resolution of a county in this state or any law of another jurisdiction that would constitute an offense that is comparable to the offense described in subsection (m) (1) or (m) (2);
receiving punishment under the uniform Code of Military Justice or Kansas Code of Military Justice for an act which was committed on a military reservation and which would constitute a crime described in subsection (m)(1) or (m)(2) if committed off a military reservation in this state;
multiple convictions of any crime described in subsection (m)(1) or (m)(2) arising from the same arrest shall only be counted as one conviction;
it is irrelevant whether an offense occurred before or after convictions for a previous offense; and
a person may enter into a diversion agreement in lieu of further criminal proceedings for a violation of K.S.A. 8-1567 (Driving Under the Influence), and any amendments thereto, this Section or any Section which prohibits the acts of this Section, and amendments thereto, only once during the person’s lifetime.
For the purposes of determining whether an offense is comparable, the following shall be considered: (1) The name of the out-of-jurisdiction offense; (2) the elements of the out-of-jurisdiction offense; and (3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct prohibited by the closest approximate Kansas offense.
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 For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 12-4413 et seq., and any amendments thereto, or K.S.A. 22-2906 et seq., and amendments thereto, shall not constitute plea bargaining.
The alternatives set out in subsection (a) may be pleaded in the alternative, and the City may, but shall not be required to, elect one or more of such alternatives prior to submission of the case to the fact finder. In addition, the City may charge the defendant with operation or attempted operation of a motor vehicle in the alternative, and the City may, but shall not be required, to elect one of the two alternatives prior to submission of the case to the fact finder.
It shall not be a defense to any prosecution under this Section that the person did not understand any written or oral notice required under the laws of this state because of any condition produced by the person’s voluntary intoxication or by injury resulting from that intoxication.
For the purpose of this ordinance:
“Imprisonment” shall include any restrained environment in which the court and law enforcement agency intend to retain custody and control of a defendant and such environment has been approved by the Governing Body of the City; and
“Drug” includes toxic vapors as such term is defined at Section 56.190.
Possible Punishment
*Class B Violations are punishable by up to 180 days in the Johnson County Jail, however, most Class B Violations are eligible for probation
*Class A Violations are punishable by up to 365 days in the Johnson County Jail, however, most Class A Violations are eligible for probation