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 this page: Kansas 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 $800.00 to $1,250.00. 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 treatment. 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. When you sign up for a diversion program without a lawyer on your side you are allowing the prosecutor to dictate the terms of the diversion agreement. They collect a large fee and put a mark on your driving record. They monitor you for a year and if you slip up they will drag you back to court and ask the Judge to convict you and send you to jail. And they do not have to spend the time and effort required to prosecute your case further.
In some cases diversion may be the best option, especially when the case against you is very strong. However, it is very important to speak with an experienced Kansas DUI defense lawyer before deciding what to do. Sometimes a case that seems hopeless can be won by an experienced lawyer who knows what to look for. Even if, after investigating your case, you and your lawyer decide to apply for diversion, your lawyer can guide you through the process and negotiate the agreement that best suits you. A diversion agreement is a legal contract. The prosecutor does not have your best interests in mind and will write that contract to favor the government and disfavor you. You should not consider signing a diversion contract without an experienced DUI lawyer on your side.
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: $750.00 to $1,250.00, 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 a six month requirement to drive only a car equipped with an ignition interlock device. If the driver's breath or blood test is .150 or greater 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. If the driver refused a breath test he or she will be suspended for one year followed by a two-year requirement of driving with an ignition interlock device.
DUI CONVICTIONS SECOND OFFENSE
Class A Misdemeanor
JAIL: Minimum 90 days up to a maximum one year jail sentence. Probation will not be granted until five days have been served.
FINE: $1,250.00 to $1,750.00, 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 by serving a period of house arrest. The terms of probation are the same as above.
LICENSE SUSPENSION: The minimum license suspension from a second DUI conviction is a one-year suspension followed by a one-year requirement to install an ignition interlock device. Most often the ignition interlock requirement is two or three years.
THIRD OR MORE OFFENSE
In most cases a DUI that is a driver's third or more offense will be charged as a FELONY DUI. There are certain limited circumstances in which a driver with two or more prior DUIs can still be charged with a misdemeanor. This is a complicated situation and should be discussed with a knowledgeable Kansas DUI lawyer as soon as possible. Any felony DUI conviction requires a jail sentence of no less that 90 days nor more than one year. The sentence can be served in a combination or jail time, work release and house arrest, as determined by the sentencing Judge. A fine of $2500 will be assessed. Probation will be for one or two years and will include inpatient or outpatient drug and/or alcohol treatment. A person with a felony DUI conviction will receive a license suspension of one year and an ignition interlock requirement of two to ten years.
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 DUI 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 can be expunged after the driver has been off probation or diversion for at least ten years. This will not automatically happen. If you want your DUI conviction or diversion to be expunged from your record you need to file a petition with the court your case was in. Expungement is discretionary with the Judge and may be denied if the Judge sees fit. For more information about expungement go to www.kansasexpungementlawyer.com
