Legal Question in DUI Law in Kansas

Got a DUI in the State of Kansas. First offence, I didn't blow what is most likely to happen to me?

Asked on 10/31/10, 5:01 pm

1 Answer from Attorneys

Kip Johnson OLLER, JOHNSON & BITTEL, L.L.C.
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In Kansas, when a person is stopped and charged with DUI, there are usually two separate and distinct actions against them. One is an administrative action, which is started after a driver has failed or refused a test for breath blood or urine. Under the the law, if the driver is requested by a law enforcement officer to take a test of breath, blood or urine, after the officer has established a reasonable suspicion that the driver has consumed alcohol and/or drugs, the driver must submit to the test or suffer a license suspension. (Since you did not take the test I will stop there). For a first time refusal, a driver will lose his license for one year and will then have an ignition interlock device installed on his vehicle for one year.

After a driver refuses a requested test, the officer should fill out a pink form, called a DC-27, form an personally serve (hand to) the driver that sheet. This sheet is an affidavit used by the Department of Revenue, driver control, to justify a driver's license suspension and to notify the driver of his suspension and inform him of his limited rights of administrative review. If the driver does nothing after receiving the "pink sheet" his license will be suspended 30 days after service of the document. A driver can request a hearing where the officer will have to come and testify about what he saw and what he did which lead up to his service of the pink sheet on the driver. An administrative law judge will listen to testimony of the officer and of the driver, if presented, and then decide if the decision to suspend the drivers license was the correct one. If the judge feels it was, he will affirm (or agree) the decision and the suspension will stand. If the judge disagrees, he will dismiss the administrative action and the driver will get his license back.

In order to receive this hearing, a driver MUST request it within 14 days of the date he receives the pink sheet from the officer, failure to request the hearing within the specified time will result in the driver not receiving a hearing. In order to have a chance of prevailing, the driver must remember to request the officer be subpoenaed. If the officer is not subpoenaed, the judge will assume that everything on the pink sheet is true and unless there is a clear error on the pink sheet, the suspension will be affirmed.

If a driver makes a timely request for a hearing within the 14 day time period, then his driving privileges will continue to be valid (barring any other reason that they might be suspended. Requesting a hearing on administrative action will not reinstate driving privileges to a driver whose license was suspended before he received the pink sheet).

During the time a driver is waiting for his administrative hearing, the pink sheet is considered the driver's license and the driver must keep the pink sheet on his person whenever he is driving a motor vehicle.

The second action which is started by the serving of a traffic ticket or filing of a criminal complaint is the "DUI" (an allegation that a person drove a vehicle under the influence of alcohol).

A person charged with a first time DUI is often offered a diversion of prosecution. A diversion is contract between the driver and the state or city which results in the driver not actually being convicted of the DUI. Kansas law requires that the terms of the diversion require the driver to agree many of the same punishments that he would receive if he was actually convicted of the crime. The driver will have to pay the minimum fine ($500.00), court costs, a booking and processing fee if the county or city has one, and the driver will have to get an alcohol and drug evaluation and follow all of the recommendations for treatment that the evaluator makes, and complete an alcohol and drug safety school. (Often times that is the only recommendation that the evaluator will make).

In Kansas a diversion is reflected on your driving record for the rest of the driver's life and if the driver is ever convicted of a DUI later in his life, the fact that he had a previous diversion will cause the driver to sentenced as if he had been convicted the first time. (In Kansas, the penalties for DUI increase with each additional conviction, up to 4).

A diversion has two definite advantages over a conviction and one possible advantage. The two definite advantages are: 1) No actual criminal conviction and 2) No jail time (In Kansas, if a driver is convicted of a 1st time DUI he MUST be sentenced to a minimum of 90 days in jail, of which he MUST serve 48 consecutive hours before he is eligible for probation.) There is a little known and almost never used exception to serving the mandatory 48 hours; a court can at its discretion, order the driver to do 100 hours of community service instead. The possible advantage comes is tied to the administrative license suspension explained above. If the driver takes a diversion and wins the administrative hearing, he gets to keep his license. If a driver is convicted of a DUI and wins the administrative hearing, his license will be suspended, not based on the fact that he failed or refused, but instead because he was convicted of DUI.

In your particular case, your administrative hearing will be harder to win because you refused the test. There are fewer things that the officer can screw up, but it is much harder to convict a driver of DUI if there is no breath test. The state or city can still proceed with a prosecution of DUI without a breath test, but it must prove that the driver was so impaired by drugs or alcohol that the driver could not safely operate a motor vehicle. If a jury really listens to what has to proven, it is usually very difficult for the state to prove that, unless the state has some compelling evidence of impairment (e.g. a video tape of the driver slurring, stumbling and generally looking and acting drunk or an unexplained accident such as hitting a parked car or street sign). The police officer is also generally allowed to give an "expert" opinion as to whether the driver was too impaired to drive. However, if there is limited evidence of bad driving and the driver did relatively well on the tests and was polite to the officer, there is a good chance to avoid a conviction.

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11/06/10, 2:40 am

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