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Kansas DUI Laws

It is important to understand that, when you are arrested for DUI, two separate legal processes begin.  One is the criminal case in State or Municipal Court (or, rarely, in Federal Court).  The other is the Administrative License Hearing.  These two processes are completely independent of each other, meaning you can win both, lose both, or win one and lose the other.

In the Administrative License Hearing process the State of Kansas works to suspend your driver’s license.  That process is discussed on the page called “License Suspensions.”

Below is a discussion of the some of the options in the criminal case against you.  Of course, the first goal in your defense is to win your case, either by gaining a dismissal or winning at trial.

DIVERSION

When you go to court in your DUI case, if it is a first offense, the prosecutor may offer to enter you into a program called diversion.  Diversion is an option in which the defendant admits he is guilty of the DUI and agrees to be supervised for a year and fulfill numerous conditions.  If all goes well the prosecutor will dismiss the case against you at the end of the one-year period. This means you have not been found guilty of the DUI and no conviction will appear on your record.  However, please be aware that your Kansas driving record will still show you were charged with DUI and that you completed a diversion program.  Also, it is important to know that if you are ever charged with another DUI the diversion will be treated as a prior conviction and your new DUI will be treated as a second offense.

The prosecutor has complete discretion as to whether to offer you diversion.  Diversion may be denied to anyone who has had a previous conviction or diversion for any offense.  You may be denied diversion if you were in an accident in which anyone was injured, even if the only person injured is yourself.  Additionally, diversion is often denied to people who had a high breath or blood test and to people who were obnoxious, belligerent or untruthful with the police.  Holders of a Commercial Driver’s License (CDL) are not eligible for diversion.

The usual terms of a diversion contract require you to accept responsibility for the crime, obtain an alcohol evaluation from an alcohol counselor, not violate the law for a year, not drink alcohol for a year or go to establishments that serve alcohol, and to take random urine tests. You will pay a diversion fee, generally in the range of $650.00 to $1,100.00.  You will be required to meet with a diversion monitor at least monthly to assess your compliance.  You must also attend an alcohol education class, attend a DUI Victim Impact Panel, and do anything else required by the diversion coordinator. Some people will be required to complete outpatient or inpatient alcohol counseling.  If you fail any of these conditions your case will be reopened and you will be summoned back to court.

Because a diversion is not a conviction, it does not result in a criminal suspension of driving privileges. However, you can still have your driving privileges suspended in the administrative (civil) proceeding.

If you are eligible for diversion the prosecutor may tell you it is the best option, and may even suggest to you there is no reason for you to talk to a lawyer.  In some jurisdictions the arresting officer will give you a sheet of instructions about how to apply for diversion without a lawyer.  Why are the government officials so eager for you to apply for diversion?  When you sign up for diversion they are getting what they want.  They collect a large fee and put a mark on your driving record.  They monitor you for a year.  And they do not have to spend the time and effort required to prosecute your case further.

In some cases diversion is the best option, especially when the case against you is very strong.  However, it is always worthwhile to speak with an experienced Kansas DUI defense lawyer before deciding what to do.  Sometimes a case that looks hopeless can be won by a lawyer who knows what to look for.  Even if, after investigating your case, you decide to apply for diversion, your lawyer can guide you through the process and negotiate the agreement that best suits you.

DUI CONVICTIONS FIRST OFFENSE
Class B misdemeanor

JAIL:   Minimum 48 consecutive hours to a maximum six (6) months, or 100 hours of community service, at the discretion of the court.

FINE: $500.00 to $1,000.00, plus additional fees and court costs.

PROBATION:  The terms of probation are generally the same as the terms of a diversion.   Additionally, the court may order that the defendant’s car be impounded.

LICENSE SUSPENSION:   A criminal conviction of a first offense DUI for a person with a test result under a .150 results in a 30 day suspension of driving privileges and 330 day restriction to driving only to and from work, during work, to required classes, or in a medical emergency. If the person submitted a test of .150 or greater, or refused to take a test, his or her driving privileges will be suspended for one year, followed by one year of only operating a vehicle equipped with an ignition interlock device. No hardship license or work permit is available.

DUI CONVICTIONS SECOND OFFENSE
Class A Misdemeanor

JAIL: Minimum 90 days up to a maximum one year.

FINE:  $1,000.00 to $1,500.00, plus additional fees and court costs.

PROBATION: Not available until the defendant has served five days in jail.  The first two days of jail time can sometimes be served in a locked-down facility like the Community Weekend Intervention Program in Johnson County or similar programs elsewhere.  The other three days may be served in a work release program in which the inmate returns to work each night, or on house arrest. The terms of probation are the same as above.   Additionally, the court must order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years. All costs associated with this will be borne by the defendant.

LICENSE SUSPENSION:  If a defendant tests at less than .150, a criminal conviction of a second time DUI results in a one year suspension of driving privileges, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device. If the test result is .150 or higher, or the driver refuses a test, a conviction for DUI will result in a license suspension of one year followed by 2 years of driving only a vehicle with an ignition interlock device. No hardship license or work permit is available.

THIRD OFFENSE FELONY

JAIL:  Minimum of 90 days to a maximum of one year.

FINE: $1,500.00 to $2,500.00, plus fees and court costs.

PROBATION: No person can get probation until after serving at least 90 days in custody. Eighty-eight of the days of incarceration may be served in a work release program, in which the inmate is only released from custody to go to work, or on house arrest. The court will order that each vehicle owned or leased by the defendant be equipped with an ignition interlock device or be impounded or immobilized for 2 years, with all costs borne by the defendant.

LICENSE SUSPENSION: A person who took a test and was under a .150 will be suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device. If the person tested at a .150 or higher, or refused a test, he will be suspended for one year, followed by a three year restriction to only driving with an ignition interlock device. No hardship license or work permit is available.

FOURTH OFFENSE FELONY

JAIL:  Minimum of 90 days up to a maximum of one year.

FINE: $2,500.00, plus fees and court costs.

PROBATION:  Not available until after the person has served the term of incarceration imposed by the court, a minimum of 90 days.  Up to 87 of these days may be served in a work release program, at the discretion of the court.  Then the individual is released to the Kansas Department of Corrections for a one year post-release supervision period which will include mandatory drug and alcohol treatment.  The court will order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years, with all costs borne by the defendant.

LICENSE SUSPENSION:   A person who took a test and was under a .150, the driver's license is suspended for one year, followed by one year of driving restricted to only operating a motor vehicle equipped with an ignition interlock device. Persons who tested at .150 or higher, or who refused a test, will be suspended for one year and then restricted to only driving vehicles equipped with an ignition interlock device for four years.  No hardship license or work permit is available.

FIFTH OR SUBSEQUENT OFFENSE FELONY

JAIL:  Minimum of 90 days in jail and up to a maximum of one year.

FINE: $2,500.00, plus fees and court costs.

PROBATION:  Not available until after the person has served the term of incarceration imposed by the court, a minimum of 90 days.  Up to 87 of these days may be served in a work release program, at the discretion of the court.  Then the individual is released to the Kansas Department of Corrections for a one year post-release supervision period which will include mandatory drug and alcohol treatment.  The court will order that each vehicle owned or leased by the convicted person must be equipped with an ignition interlock device or be impounded or immobilized for 2 years, with all costs borne by the defendant.

LICENSE SUSPENSION: Upon a fifth criminal conviction for DUI, the defendant's driver's license is suspended FOREVER.  You will never legally drive in Kansas again.

DRIVERS UNDER 21

In addition to the penalties above, a driver under 21 years old can be suspended for driving with a breath or blood alcohol content of .02 to .079.  And yes, you may still be charged with DUI even if your test is lower than the .08 level of presumed intoxication.

COMMERCIAL DRIVERS LICENSE (CDL) HOLDERS

The legal limit for a commercial driver in a commercial vehicle is .04.  There are many special laws that apply only to commercial drivers. Those issues should be explored at length with your attorney.

EXPUNGEMENT

Expungement is a process in which convictions are removed from a person's criminal record. An arrest, diversion or conviction for a Kansas DUI cannot be expunged. Once diverted or convicted for DUI, it will never be removed from your record.

Attorney Brian Leininger

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Attorney Brian Leininger helps people accused of DUI and related offenses in Kansas.

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