7450 W. 130th St.
Suite 305
Overland Park, KS 66213

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DUI Law

Drunk driving penalties in Kansas depend not only on the “evidence” obtained during the course of the traffic stop through search and seizure, field testing and chemical testing, but also on your driving records, criminal history, and prior alcohol related driving convictions. For those without experienced legal representation, it can be difficult to understand the charges, timelines, sentencing guidelines and consequences you face if convicted of drunk driving.

To best protect your rights and interests, choose an experienced attorney to represent you throughout the DUI process. In Kansas City and the surrounding areas, contact me, Paul D. Cramm, attorney at law. From my offices in Overland Park, I represent clients in Johnson County, Kansas, and in Wyandotte and Jackson counties in Missouri.

Driving Under the Influence of Alcohol or Drugs (DUI)

In Kansas, DUI charges allege that your Blood Alcohol Concentration (BAC) was .08% or greater within two hours of operating or attempting to operate a vehicle, or that you operated or attempted to operate a vehicle while under the influence of alcohol, drugs or any combination of alcohol and drugs to a degree that rendered you incapable of safely doing so. Because Kansas law provides for conviction under either option of this dual standard, thorough and aggressive defense of a DUI charge requires the skills of a qualified Kansas DUI defense lawyer.

Kansas DUI cases are procedurally consistent with any other criminal charge in that the prosecution bears the burden of proving the charge “beyond a reasonable doubt.” However, because of an increased public intolerance of drinking and driving, defending against a Kansas DUI charge has become increasingly more complicated, and the penalties for conviction have become much more serious.

In order to defend against a Kansas DUI case, an attorney must be ready and able to attack the Government’s evidence of intoxication. There are a number of avenues that an experienced, thorough DUI defense attorney can pursue in order to defend the client:

  • Contesting the constitutionality of any stops, searches and seizures
  • Petitioning for suppression of evidence
  • Challenging the precision and proficiency with which the arresting officer conducted the field sobriety tests
  • Challenging the training and experience of the individuals who conducted any chemical tests as well as the test results themselves
  • Testing the credibility and reliability of the statements of any witnesses

Watch this video to learn how Paul Cramm defends DUI and DWI defense and to see why you need his representation in your Kansas City Drunk Driving case.

DUI and Your Driver’s License

Kansas DUI arrests give rise to two distinct and separate aspects of your case: the criminal proceedings, which are resolved in the municipal or district court where the case is charged and can result in fines and/or jail time, and the administrative proceedings which can result in the suspension of your driving privileges. It is extremely important to understand that the deadlines, rules, procedures and burdens of proof in the criminal court case and the administrative driver’s license case are entirely different.

At the administrative level, the term of suspension that you face depends upon several factors: whether you failed the chemical test or whether you refused to submit to it; whether this is your first or subsequent test failure or refusal; and whether you are over or under 21 years of age. The time of suspension of driving privileges, depending on these factors, ranges from 30 days to permanent revocation of driving privileges.

Kansas DUI law provides you with the right to an administrative hearing wherein you or your lawyer can challenge the grounds upon which your license is suspended. If you request an administrative hearing in a timely manner, your driving privileges cannot be suspended until a decision has been made by the hearing officer. In other words, the validity of your temporary driving privileges is extended until after the hearing, which is frequently scheduled months after the request. Prior to the hearing, you can subpoena certain documents and witnesses who may have information about your case.

At the hearing, a number of issues can be raised in your defense, depending on the facts of your case. These issues include: whether or not the officer had reasonable grounds to believe that you were operating or attempting to operate a vehicle while under the influence of alcohol or drugs; whether you were given the legally required notices before being asked to submit to testing; whether your actions constituted a legal refusal to take the test; whether the testing equipment and the officer operating the machine were certified by the Kansas Department of Health and Environment (KDHE); as well as other due process or other constitutional issues.

If you are successful at the hearing, or if the officer fails to appear without requesting a continuance of the hearing in writing, your license may not be administratively suspended at all. However, you must send a letter requesting an administrative hearing to the Kansas Department of Revenue within 14 calendar days of the day you received the DUI or your driving privileges will automatically be suspended, period. Thus, it is critical that you obtain the services of a well-qualified Kansas DUI defense lawyer as soon as possible after the arrest.

Another very important consideration is the fact that the Department of Revenue may also suspend your driving privileges if you are ultimately “convicted” of DUI or plead “guilty” to DUI at the Court level – regardless of the outcome you achieved at the Administrative Hearing. Even if the certifying officer fails to appear at the Administrative Hearing and the order of suspension is technically “dismissed,” if you later are convicted or enter a plea agreement at the Court level, you still face suspension of your driving privileges. In other words, to avoid suspension of your driving privileges completely in any DUI case, it is essential that you prevail at the Administrative Hearing and avoid conviction at the Court level.

New Kansas DUI Penalties Effective July 1, 2012:

Kansas DUI cases in criminal court may result in fines, jail time, court-ordered suspension of your driving privileges and the potential impoundment of your vehicle. The amount of fine and the length of the jail sentence are determined, in large part, by whether you have previously been convicted, or placed on diversion for DUI. Now, courts will score prior DUI offenses occurring within the preceding 10 years differently than DUI convictions that are more than 10 years old.

First Conviction: A first conviction for DUI is a Class B misdemeanor offense. The potential sentence is up to but not more than six months in jail. If convicted, the defendant must serve at least 48 consecutive hours in custody as a prerequisite to probation, unless the court allows the person complete 100 hours of community service instead of the mandatory minimum 48 hours in custody. The fine for a first conviction ranges between $750 and $1,000.

At the administrative level for a First Offense DUI, if a person is convicted of the DUI and submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .08%, but less than .149%, that person’s driving privileges are suspended for 30 days followed by 180 days of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .150% driving privileges are suspended for a full year, followed by an additional year of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver refused to submit to the intoxilyzer test, driving privileges are suspended for a full year, followed by an additional 2 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

Second Conviction: A second conviction for DUI is a Class A misdemeanor offense. The mandatory minimum underlying sentence is 90 days in jail; however, the sentence can be as long as one full year. The defendant must serve at least five consecutive days in custody as a prerequisite to probation, but the judge can order the defendant to serve 48 hours in custody followed immediately by at least 120 hours of work release or house arrest with electronic monitoring to satisfy the 5-day requirement. If the defendant does require daily work release while subject to house arrest supervision, the time spent at work no longer counts toward to term of confinement – only the time spent at home will count towards satisfaction of the sentence. As with a first offense, completion of a substance abuse treatment program is required. The fine for a second conviction ranges from $1,250.00 to $1,750.00.

At the administrative level for a Second Offense DUI, if a person is convicted of the DUI and submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .08%, but less than .149%, that person’s driving privileges are suspended for 1 full year followed by an additional year of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .150% driving privileges are suspended for a full year, followed by an additional 2 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver refused to submit to the intoxilyzer test, driving privileges are suspended for a full year, followed by an additional 3 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

Third Convictions: No Priors Within Previous 10 Years: If you have 2 prior DUI offenses – but both prior DUI offenses occurred more than 10 years ago, then your 3rd lifetime DUI offense is still scored as a Class “A” Misdemeanor offense. The mandatory minimum underlying sentence is 90 days in jail; however, the sentence can be as long as one full year. The defendant must serve at least 48 hours in custody followed immediately by at least 216o hours of work release or house arrest with electronic monitoring as a prerequisite to probation for the balance of the sentence. If the defendant does require daily work release while subject to house arrest supervision, the time spent at work no longer counts toward to term of confinement – only the time spent at home will count towards satisfaction of the sentence. As with any DUI offense, completion of a substance abuse treatment program is required. The fine for a 3rd conviction if scored as a Class “A” Misdemeanor ranges from $1,750.00 to $2,500.00.

Third Conviction: At Least One Prior DUI in the Previous 10 Years: If you have 2 prior DUI convictions and at least one of those convictions occurred within the past 10 years, your third lifetime conviction for DUI is an “unscored felony.” The sentencing provisions are identical to the foregoing sentencing provision for a 3rd lifetime DUI with no prior DUI convictions in the previous 10 years. The mandatory minimum underlying sentence is 90 days in jail; however, the sentence can be as long as one full year. The defendant must serve at least 48 hours in custody followed immediately by at least 2160 hours of work release or house arrest with electronic monitoring as a prerequisite to probation for the balance of the sentence. If the defendant does require daily work release while subject to house arrest supervision, the time spent at work no longer counts toward to term of confinement – only the time spent at home will count towards satisfaction of the sentence. As with any DUI offense, completion of a substance abuse treatment program is required. The fine for a 3rd conviction if scored as an unscored felony ranges from $1,750.00 to $2,500.00.

At the administrative level for a Third Offense DUI, if a person is convicted of the DUI and submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .08%, but less than .149%, that person’s driving privileges are suspended for 1 full year followed by an additional 2 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .150% driving privileges are suspended for a full year, followed by an additional 3 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver refused to submit to the intoxilyzer test, driving privileges are suspended for a full year, followed by an additional 4 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

Fourth or Subsequent Conviction: A fourth lifetime conviction for DUI is also an “unscored felony.” The mandatory minimum sentence is 90 days and a maximum sentence of 12 months in prison. A person convicted of a fourth or subsequent DUI, however, must serve 72 consecutive hours (3 days) in jail before being eligible for a work release program or house arrest with electronic monitoring for the balance of the 90 day minimum term of confinement. The statutory fine for a 4th or subsequent lifetime DUI offense is not $2,500.00.

At the administrative level for a Fourth Offense DUI, if a person is convicted of the DUI and submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .08%, but less than .149%, that person’s driving privileges are suspended for 1 full year followed by an additional 3 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver submitted to, but failed the Intoxilyzer test by providing a sample of breath that tested positive for alcohol at or above .150% driving privileges are suspended for a full year, followed by an additional 4 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

If the driver refused to submit to the intoxilyzer test, driving privileges are suspended for a full year, followed by an additional 5 years of driving a vehicle only if said vehicle is equipped with an ignition interlock device.

At the administrative level for a Fifth or Subsequent Offense DUI, if a person is convicted of the DUI, that person’s driving privileges are suspended for 1 full year followed by 10 years of ignition interlock restriction, regardless of whether the driver submitted to or refused the Intoxilyzer test and regardless of whether the person provided a sample of breath that tested above or below .150% alcohol.

Effective July 1, 2012, Refusal of the Intoxilyzer Test in Kansas is a CRIME!

If you have read all of the information on my web site regarding DUI defense, you know that refusal of the Intoxilyzer Test at the police station will generally afford a driver fact defenses to the charge of DUI that would not be available in the face of an admissible Intoxilyzer test result. The Kansas Legislature has consistently increased the administrative penalties associated with Breath Test refusal as a means of discouraging drivers from refusing the Intoxilyzer Test. Effective July 1, 2012, refusal of the Intoxilyzer Breath Test at the police station is a criminal offense. No longer is refusal of the breath test limited to the possibility of an extended term of driver’s license suspension or ignition interlock requirement. Now, if you refuse the Intoxilyzer Breath Test at the police station, you could be sentenced to jail.  However, if you are facing your very first alcohol related charges with no prior alcohol related anywhere, any time, ever, and you elect to refuse the intoxilyzer breath test at the police station, you will not face independent criminal charges for refusal of the intoxilyzer test.  The criminal charges for refusal of the intoxilyzer test only apply to drivers with at least one prior alcohol related driving offense.

The criminal penalties for refusal of the Intoxilyzer Breath Test are essentially the same as the penalties for conviction of the underlying DUI offense:

On a first conviction, refusal of the Intoxilyzer Test is a class A, nonperson misdemeanor. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,250 nor more than $1,750. 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. 2011 Supp. 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 second conviction, refusal of the Intoxilyzer Test is still a class A, nonperson misdemeanor, provided the person’s prior conviction os more than 10 years old. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1,750 nor more than $2,500. 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. 2011 Supp. 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;

If the driver has a prior alcohol conviction within the past 10 years, the second conviction for refusal of the Intoxilyzer Test is a nonperson felony.
The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined not less than $1750 and not more than $2,500. 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. 2011 Supp. 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; and

On a third or subsequent conviction, refusal of the Intoxilyzer Test is a nonperson felony. The person convicted shall be sentenced to not less than 90 days nor more than one year’s imprisonment and fined $2,500. 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 72 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 72 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. 2011 Supp. 21-6609, and amendments thereto, to serve the 90 days’ imprisonment mandated by this subsection only after such person has served 72 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.

Refusal of the Intoxilyzer Test may be a valid strategic decision to make if you have absolutely NO prior alcohol related arrests, convictions or Diversions anytime anywhere, ever. But now, because refusal of the Intoxilyzer Test carries the exact same criminal penalties as the underlying DUI charge on second and subsequent occurrences, it does you very little good to refuse the test. You would be better off to submit to the test and explore forensic challenges to the test result or administrative challenges to the admissibility of the test result. If you are facing a second or subsequent DUI charge, contact my law office immediately to discuss the best DUI defense available in your situation.

For more information, see my DUI Penalties page and my Kansas Driver’s License Suspension page.

Call today For a Free Consultation with an Experienced DUI Lawyer: (913) 322-3265

Contact a Kansas DUI Lawyer with the experience and the dedication to get the best possible outcome in your drunk driving case. I offer a free initial consultation and I am eager to discuss the facts and circumstances of your case with you.  I represent clients accused of DUI and DWI throughout the Kansas City Metro area including the municipalities of Johnson County, Kansas: De Soto, Gardner, Leawood, Lenexa, Merriam, Mission, Olathe, Overland Park, Prairie Village and Shawnee.

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