The Kansas DUI and Diversion Guide

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I just got arrested for a State of Kansas DUI charge.  What happens now?

 

ISSUE ONE:  The Kansas Implied Consent / Administrative Suspension Proceeding:  Under Kansas implied consent law, any person who operates or attempts to operate a vehicle within the State of Kansas is deemed to have given consent to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs.  A law enforcement officer shall request a person to submit to a breath, blood or urine test if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both.  If the person fails or refuses a chemical (breath / blood / urine) test, state law provides for a penalty, namely a license suspension of anywhere from 30 days to a permanent revocation.

 

If you failed or refused a chemical test, your Kansas license (or your right to drive in Kansas if you're not a Kansas licensed driver) was most likely suspended pursuant to the above implied consent law.  Read your paperwork carefully.  If you would like to challenge this administrative suspension, you generally must request an administrative hearing within 10 days of your arrest.  Contact an experienced Kansas DUI attorney for more information. 

 

 

ISSUE TWO:  The Kansas DUI Criminal Offense:  Separate from the administrative suspension is the criminal charge for DUI.  In the State of Kansas, it is unlawful for you to operate or attempt to operate any vehicle while:

 

(1) the alcohol concentration in your blood or breath, as measured within two hours time of operating or attempting to operate a vehicle, is 0.08 percent or more (sometimes referred to as a "per se DUI"; or

 

(2) you are under the influence of alcohol to a degree that renders you incapable of safely operating a vehicle; or

 

(3) you are under the influence of drugs or a combination of alcohol and drugs to a degree that renders you incapable of safely operating a vehicle.

 

Important:  The administrative license suspension proceeding and the criminal DUI case are completely separate from one another. 

 

Will my Kansas driver license be revoked / suspended?

 

RELATED TO ISSUE ONE ABOVE:  Your Kansas driver license (or your right to drive in Kansas if you do not have a valid Kansas license) may be suspended in the administrative license suspension for failing or for refusing a chemical test for alcohol and / or drugs.  Again, you may challenge this administrative suspension by filing a request for an administrative hearing within 10 days of your arrest.  Requesting a hearing will not necessarily overturn the suspension; rather, it merely provides with a chance to overturn the suspension.

 

 

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the DUI charge, you will also lose your license (or your right to drive in Kansas if you don't have a valid Kansas license) for 30 days or more.  Refer to the table below.  This suspension is separate and distinct from the administrative suspension.  Talk to your Kansas DUI lawyer for possible license suspension lengths and restrictions for your situation.

 

 

Also keep in mind that your license can be suspended for a variety of reasons unrelated to a DUI arrest e.g. excessive tickets, hit and run etc.

 

What happens if I get caught driving while my license is suspended / revoked?

 

Driving while your license is suspended or revoked should be avoided as it is a new crime.  Penalties include fines, possible jail time, and an additional 90 day license revocation.  You will also be required to file an SR-22 for one year.

 

I really need to drive.  Will I be able to get a restricted / occupational / conditional / probationary permit?

 

No.  Kansas law does not allow for the issuance for any type of hardship / work license. 

 

What is the difference between a DUI, DWI, OWI, OUI, OVI, DWUI etc.?

 

These terms are all acronyms that refer to the offense commonly known as "drunk driving."  Different states have different names for the crime.  For example, in New York and Texas the charge is known as DWI (driving while intoxicated).  Oregon law refers to the phrase "driving under the influence of an intoxicant" or DUII.  Like many states, Kansas law uses the phrase "driving while under the influence" or DUI. 

 

Is a DUI offense in Kansas a misdemeanor or felony charge?

 

In Kansas, a first or second DUI conviction is a misdemeanor offense.  A third or greater DUI offense is a felony charge.

 

What type of penalties might I face if I am convicted of an Kansas DUI charge?

 

Upon conviction of an Kansas DUI charge, a defendant can receive a variety of penalties including alcohol treatment / education.  A range of minimum penalties is set forth below: 

 


KANSAS DUI PENALTY CHART

DUI CONVICTION TYPICAL RANGE OF PENALTIES
FIRST DUI
See Note 1 below
  • Minimum 48 hours jail or 100 hours of community service. 

  • Fines of $500 - $1000. 

  • License suspension: 30 days plus 330 days restriction to driving only to and from work, to required classes, or in a medical emergency.

SECOND DUI
  • Minimum five days jail;
  • Fines of $1000 - $1500;
  • License suspension of one year plus one year IID restriction. 
THIRD DUI
  • Minimum 90 days jail (possibly served in work release or home confinement);
  • Fines of $1500 - $2500;
  • License suspension of one year plus one year IID restriction.

Note 1:  Successful completion of the Kansas DUI diversion program will allow you to avoid a conviction.
Note 2:  Expect more jail time if you have a child under 14 in the car with you at the time of your DUI.
Note 3:  A fifth or greater conviction will result in a permanent revocation of your Kansas drivers license.

What is "diversion"?

If this is your first offense, you may be able to enter into a program called diversion.  In the Kansas DUI diversion program, you must admit that you are guilty of a DUI and agree to be supervised for one year.  You will also need to fulfill many conditions, including submitting to random urine tests, not consuming alcohol, and attending alcohol education classes.  If you fulfill all conditions, the DUI charge against you will be dismissed.  If you successfully complete the diversion program, no conviction will appear on your criminal record, although the diversion will still appear on your driving record. If you fail any of the conditions, your case will be reopened and you must return to court. 

If you complete the DUI diversion program and are later charged with another DUI, the diversion will be treated as a prior conviction, so the new DUI charge would be considered your second offense.

Will an Kansas DUI go on "my driving record?"

Yes.  A DUI conviction will go on your Kansas driving record and will stay on your record for life.  You cannot seal or expunge a Kansas DUI conviction.

Just how much jail / prison time will I have to do if I am convicted of a DUI in Kansas?

The amount of incarceration (jail or prison) received will depend on a number of factors, including the following:

•  your prior driving record especially your DUI history (including any DWI's / DUI's outside of Kansas);

•  your level of impairment / BAC;

•  whether there was an accident involved;

•  whether there was bodily injury to another person in the collision;

•  which Kansas county or municipal court your case is in;

•  what judge you are sentenced by;

•  whether there was a passenger in your car (especially a child under 14 years of age);

•  whether the court feels you have accepted responsibility for your actions.

 

I am licensed to drive in a state other than Kansas and I was arrested for a DUI in Kansas.  Will my driver license be suspended / revoked?

Kansas only has the authority to suspend your right to drive in the State of Kansas.  However, Kansas and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact."  Under the Compact, Kansas will report a DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your license (for a period of time equal to the suspension / revocation you would face had you been convicted of the DUI / DWI in your home state).

This also works in reverse.  If you are a Kansas licensed driver and you are convicted of a DUI / DWI / OWI charge in another state, Kansas will suspend your license if it learns of the conviction. 

Will I have to install an Ignition Interlock Device in my car?

 

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to your motor vehicle ignition.  In order to start the vehicle, a driver must blow a breath sample into the IID which then measures alcohol concentration.  If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.

For your first Kansas DUI conviction, installation of an IID is optional.  Your license will be suspended for 30 days.  Thereafter, your license will be restricted for another 330 days allowing you to drive only to and from work, to required classes, and for medical emergencies. 

After you complete your initial 30 day suspension, you have the option of installing an IID for the next 330 days.   If you install an IID in every vehicle you drive, you will not be limited to driving only to and from work and in emergencies.  In other words, installation of an IID allows you to drive without limitation.

For a second or subsequent Kansas DUI convictions, you will be required to install an IID in every vehicle you drive generally for one year.

What will an Kansas DUI do to my insurability?

If your insurance company finds out about your DUI one of two things are likely to happen.  Either your Kansas insurer will raise your rates or you may be cancelled or non-renewed.  Your insurance company will absolutely learn of your DUI if you have to file an SR-22.

What is an SR-22 / Proof of Financial Security (Auto Insurance)?

An SR-22 is a form from an Kansas licensed insurance company certifying that you have purchased liability insurance (financial security) that meets the minimum required coverage limits.  The SR-22 provides proof to the Kansas Department of Revenue Division of Motor Vehicles Driver Control Bureau that you are insured.  If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify the Secretary of State Department of Driver Services that the certificate is canceled.  The SR-22 requirement must be maintained for at least one year.

Are there special concerns for licensed pilots who get an Kansas DUI?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including Kansas DUI convictions and implied consent suspensions.  Learn more here.

I missed my Kansas court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss court, bad things happen.  At a minimum, the court typically issues a warrant for your arrest (commonly known as a bench warrant).  You may also face a new criminal charge under K.S.A. 21-3813.  Talk to an attorney as soon as possible.  Often, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.  If possible, always turn yourself in within 30 days of your failure to appear.

Can I represent myself in court on my Kansas DUI and / or other criminal charge(s)?

Yes.  You have an absolute constitutional right to represent yourself on any criminal charge no matter how serious including an Kansas DUI.  Keep in mind that Kansas DUI defense is complex as shown by the information in this website.  If you cannot afford to hire your own attorney, you definitely should apply for court appointed counsel to represent you.  You have no right to court appointed counsel at the implied consent license proceeding.

Copyright 2013, 2012, 2011, 2010, 2009 by David Lesh


Websites, including this one, provide general Kansas DUI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your case, problem, or situation.  Consult qualified Kansas attorneys for advice about any specific problem or DUI charge that you have.  KS lawyers are governed by the Kansas Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No lawyer associated with this website is specialized or certified in any way.  This site is not a solicitation for attorney services; rather, it is purely informational.  FAQ's.

 

Providing drunk driving and criminal defense assistance to the communities of:  Wichita, Kansas City, Topeka, Lawrence, Overland Park, Olathe, Lawrence, Manhattan, Sedgwick County, Johnson County, Wyandotte County, and Shawnee County.  Kansas attorneys may accept Visa, American Express, Discover, and MasterCard credit cards.  2013.

 

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